2015-04-07

NPM 009-2015

Requesting Entity: Bureau of Fire Protection (BFP)

Issues Concern: Technical Specifications/Amendment to Order

 

Details

Applicability of Amendment to Order on BFP's contract for the Supply and Delivery of 244 Units 1000-Gallon Capacity and 225 Units 500-Gallon Capacity Fire Trucks in applying changes in the original dimensions and technical specifications of the firetrucks as originally bid out.

 

It is mandatory on the part of the PE to show presence of any of the conditions under the Contract Implementation Guidelines for the Procurement of Goods, Supplies and Materials to warrant any proposed amendment to order. Accordingly, except in emergency cases or fortuitous event, and in cases where necessary for the protection of the goods, it is our considered view that the provisions of the Guidelines pertinent to amendment to order is not applicable. The stringent conditions on the use of amendment to order under the Guidelines is designed to safeguard the public from unlawful schemes where the technical specifications initially set out as basis for bidding will later be modified during contract implementation without sufficient legal basis.

 

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[T]he Supreme Court, in the consolidated case of Capalla v. COMELEC, held that:

 

"[A] winning bidder is not precluded from modifying or amending certain provisions of the contract bidded upon. However, such changes must not constitute substantial or material amendments that would alter the basic parameters of the contract and would constitute a denial to the other bidders of the opportunity to bid on the same terms. The determination of whether or not a modification or amendment of a contract bidded out constitutes a substantial amendment rests on whether the contract, when taken as a whole, would contain substantially different terms and conditions that would have the effect of altering the technical and/or financial proposals previously submitted by the other bidders. The modifications in the contract executed between the government and the winning bidder must be such as to render the executed contract to be an entirely different contract from the one bidded upon." (Emphasis and underscoring supplied)

 

In this regard, an amendment to order in a Contract for the Procurement of Goods may be issued only upon the occurrence of the conditions set forth in the Guidelines, and any procurement contract shall in no case be amended if it will constitute denial to the other bidders of the opportunity to bid on the same terms.