Requesting Entity: National Food Authority
Issues Concern: "Pre-qualification" in procurement of infrastructure projects
[T]he eligibility screening does not assume the same character as pre-qualification which it has particularly replaced for policy considerations. During the eligibility screening, a simple non-discretionary "pass-fail" check of compliance with eligibility requirements is done. In other words, what the conventional system has achieved by way of pre-qualification is now the objective of the post-qualification stage under the new law. The pre-qualification in public procurement is now non-existent; and is definitely not recalled to life, so to speak, by RA 9184.
2) If the purpose of the submission of the eligibility envelopes is to determine eligibility of prospective bidders before they are allowed to acquire or purchase the bid documents, can the procuring entity still require the submission of other eligibility requirements from those who were allowed to acquire or purchase bid documents on the specified date of bid opening?
[O]n whether or not a procuring entity can still require from the bidders the submission of other eligibility requirements after eligibility screening had already been done, it is our opinion that the same is not allowable under the present rules not only because it lacks basis under the rules, but because it will only render nugatory the eligibility screening that was. Thus, to require additional eligibility documents would defeat the very intention of the eligibility checking process under the law.
3) If a prospective bidder in such procurement is declared ineligible even before the date of the pre-bid conference, can he still request for clarification or interpretation on the bidding documents within the period provided for in Section 22.5.1, Rule VII of the IRR-A of RA 9184?
We are of the view that although an ineligible bidder may be able to acquire copies of the bidding documents from other eligible bidders and thereafter ask for clarification/s upon the same, it should be taken into account that any grant or denial of such request rests upon the discretion of the Bids and Awards Committee (BAC). It should be taken into consideration however that a clarification sought by an ineligible contractor would no longer affect the said contractor's rights, considering that such contractor, is already barred from participating in the bidding.
4) In case there is no eligible bidder determined as such during the "pre-qualification stage," would that be counted as a failed bidding in order to resort to the alternative mode of negotiated procurement?
[I]n cases where all participating bidders have been declared ineligible, there is no recourse but a declaration of a failure of bidding and the opening of the project for re-bidding with re-advertisement. Please take note however, that resort to the alternative method of negotiated procurement is justified only in cases where there has been failure of public bidding for the second time, among others. (IRR-A Section 53)