NPM No. 014-2018
Requesting Entity: Manila International Airport Authority
Issues Concern: Lone Bidder as a Ground for Disqualification
1. Whether the MIAA can adopt as a matter of policy that there should be at least more than one participating bidder in a project in order for MIAA to award a contract?
[A]ward of contract in a bidding opportunity with a lone bidder is a situation contemplated by the law as acceptable, provided that the lone bidder meets all the necessary eligibility requirements or criteria and is found to be responsive to the bidding requirements.
Moreover, the authority of the BAC to declare a failure of bidding is limited to instances enumerated in Section 35.1 of the 2016 IRR of RA 9184, specifically, when:
(a) No bids are received;
(b) All prospective bidders are declared ineligible;
(c) All bids fail to comply with all the bid requirements or fail post-qualification, or, in the case of consulting services, there is no successful negotiation; or
(d) The bidder with the LCRB, HRRB, SCRB or SRRB refuses, without justifiable cause, to accept the award of contract, and no award is made.
[T]he BAC is not permitted to provide an additional ground for declaration of a failure of bidding. The list provided above is an exclusive and exhaustive list of the allowable grounds for such declaration. Hence, the MIAA cannot adopt as a matter of policy that there should be at least more than one participating bidder in a project in order for MIAA to award a contract. In so doing, MIAA would violate Sections 35 and 36 of RA 9184 and the 2016 IRR.
2. Whether the MIAA Board (as HOPE) could invoke Section 41 of the 2016 IRR and cancel the bidding if there is only a lone bidder and not award the contract (to the lone bidder) or declare a failure of bidding, and conduct another bidding until such time that there are at least two (2) qualified bidders.
[T]he right to reject any and all Bids, declare a failure of bidding or not award the contract should not be exercised whimsically, arbitrarily or capriciously. Section 37.1.3 of the 2016 IRR of RA 9184 mandates that the disapproval by the HOPE of the recommendation of the BAC to award the contract with the LCRB shall be based only on valid, reasonable and justifiable grounds, i.e., grounds enumerated under Section 41 of RA 9184 and its 2016 IRR. In the absence of any of these grounds, the HOPE has no basis to disapprove the recommendation of the BAC to award the contract to the LCRB.