2017-12-20

NPM No. 050-2017

Requesting Entity: GLOBAL MARKETING & CONSTRUCTION CORPORATION (GMCC)

Issues Concern: Change in Specifications

 

Details

Clarification on the compliance with the minimum requirements based on the Terms of Reference (TOR) and whether one can change the specifications therein after the contract was awarded.


We wish to point out that in Non-Policy Matter (NPM) Opinion No. 107-2014 , we have clarified the matter on changes in specifications, thus:


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Public bidding will cease to be competitive if Procuring Entities will be permitted to make substantial variance between the conditions under which the bids are invited and the contract executed after the award. In effect, bidders will no longer bid on the basis of the prescribed terms and conditions in the bid documents but will formulate their bid in anticipation of the execution of a future contract containing new and better terms and conditions that were not previously available at the time of the bidding.

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Section 37.2.3(c) of the revised Implementing Rules and Regulations (IRR) of RA 9184 in relation to Section 25.2(a)(iii) provides that the technical specifications and offer of the winning bidder forms part of the contract. The inclusion of these documents in the contract created an obligation on the part of the contractor to deliver the specific goods that it offered. The General Conditions of Contract (GCC) of the Philippine Bidding Documents (PBDs) for the Procurement of Goods categorically states that the goods to be provided by the contractor to the PE shall be as specified in the Schedule of Requirements and shall conform with the standards mentioned in the Technical Specifications.


Anent the above-cited earlier opinion, we would like to reiterate that public bidding contracts require strict compliance with the specifications or minimum requirements prescribed in the bidding documents. On the part of the Procuring Entity, it cannot make substantial changes in the specifications of the contract, after it was awarded, without violating the principle of competition and fairness. On the other hand, the supplier is similarly duty-bound to comply with the specifications it had indicated in its offer as this forms part of the contract with the Procuring Entity, not to mention that upon which promise or offer, the Procuring Entity based its decision to award the contract.