2007-12-03

NPM 058-2007

Requesting Entity: D.G. Chico Trading & Construction Corp.

Issues Concern: Waiver of Bidder's Right to File a Temporary Restraining Order or Injunction in Court

 

Details

1. Clarification on the limitation of Section 17.7.3 of the IRR-A.

The bidding documents should state in clear and unambiguous terms the minimum specifications needed in order to meet the requirements of the procuring entity. However, interpretations or conclusions made by the bidder on said specifications and requirements shall be the sole responsibility of the bidder. Thus, bidders are obliged to carefully examine the bidding documents, to make an estimate of the facilities available and needed for the contract to be bid, and to determine and satisfy itself by such means as it considers necessary as to all matters pertaining to the contract to be bid.

2. Waiver of Bidder's Right to File a Temporary Restraining Order or Injunction in Court as Additional Eligibility Document.

The IRR-A allow the BAC to require additional documentary requirements or specifications where applicable and necessary to complete the information required for the bidders to prepare and submit their bids provided the minimum requirements under the IRR-A shall be complied with. However, the BAC cannot prescribe requirements which would defeat any of the principles of R.A. 9184 and its IRR-A or those contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.

We opine that the requirement to submit as one of the eligibility documents a waiver of one's right to file a temporary restraining order and/or seek injunction from the courts violates a bidder's constitutional right to due process. It bears stressing that R.A. 9184 already limits an aggrieved bidder's right to seek redress from the courts. Section 58 of R.A. 9184 states that court action may be resorted to only after the protest contemplated in its Article XVII shall have been completed. The procuring entity may not, thus, further limit such right by requiring a waiver as a pre-condition to the bidder's eligibility.