NPM No. 003-2016
Requesting Entity: National Irrigation Administration (NIA)
Issues Concern: Joint Venture's (JVs) Technical Requirements
Whether the non-disclosure by a JV partner of an ongoing government contract would affect compliance with the technical requirements of the bidding by the JV itself, notwithstanding the fact that the other partner was found to have already submitted/complied with such requirement.
Government Procurement Policy Board (GPPB) and its Technical Support Office (TSO) only render policy and non-policy opinions respectively, on issues purely relating to the interpretation and application of our procurement laws, rules and regulations. It has no jurisdiction to rule over actual controversies with regard to the conduct of the bidding since it has no quasi-judicial functions under the law.
In this regard, we shall limit our discussion on the relevant provisions of the procurement law, rules and regulations pertinent to the issues presented.
Statement of Ongoing Contracts and Compliance with Section 23.1(a)(iv) of the Revised IRR of RA 9184
The statement of all ongoing government and private contracts is a technical eligibility requirement, the compliance by one joint venture partner shall render the joint venture fully and completely compliant with the technical requirement based on the concept of collective compliance. However, if both JV partners submitted their respective technical eligibility documents, that includes the Statement of all ongoing contracts, the BAC shall consider all Statements for eligibility checking and post-qualification purposes; and
The Statement of all ongoing government and private contracts shall include all ongoing contracts, including contracts awarded but not yet started, if any, whether similar or not similar in nature and complexity to the contract to be bid, within the relevant period as provided in the Bidding Documents. The submission by both JV partners of their respective Statements of all ongoing contracts as technical eligibility documents shall form part of the bid and shall be considered during eligibility checking and post-qualification.
Non-Disclosure of an On-going Contract
[I]f the procuring entity uncovers any misrepresentation made in the eligibility requirements, statements or documents, or any change in the situation of the prospective bidder, which will affect the capability of the prospective bidder to undertake the project, it shall consider the prospective bidder ineligible and shall disqualify it from obtaining an award of contract, notwithstanding an earlier determination of eligibility.
All told, failure to include all ongoing contracts in the Statements submitted by the JV partners may be a ground for disqualification on the basis of misrepresentation or change in the bidder's capability. In both instances, the determination of the existence of the circumstances lies with the BAC and the procuring entity.