NPM No. 122-2015
Requesting Entity: Philippine National Railways
Issues Concern: Replacement of Personnel
1. Correct interpretation of the phrase "of equivalent or better qualifications" found in Clause 39.5 of the General Conditions of the Contract (GCCs) in the Philippine Bidding Documents (PBDs) for Consulting Services
Since the Consultant was selected on the basis of, among other things, an evaluation of the quality of proposed key professional staffs, more particularly their specific competence, experience, and qualifications, including their education and training, it is our considered view that the phrase "of equivalent or better qualifications" refers to the qualifications of the original key personnel or individual consultant sought to be replaced.
2. Whether the procuring entity can request replacement of personnel or positions to suit its needs as long as the qualification complies with the minimum requirements set or provided in the original Terms of Reference for the project
Clause 39.7 of the GCC provides the conditions under which the PE can request the replacement of personnel, thus: "If the Procuring Entity finds that any of the Personnel has committed serious misconduct or has been charged with having committed a criminal action as defined in the Applicable Law, or has reasonable cause to be dissatisfied with the performance of any of the Personnel, then the Consultant shall, at the Procuring Entity's written request specifying the grounds therefore, forthwith provide as a replacement a person with qualifications and experience acceptable to the Procuring Entity."
From the foregoing, before the PE can request the replacement of personnel during contract implementation, there must be a finding that any of the Personnel has committed serious misconduct or has been criminally charged, or the PE has reasonable cause to be dissatisfied with the Personnel's performance.