2010-04-14

NPM 010-2010

Requesting Entity: National Housing Authority

Issues Concern: Certificate of No Pending Case

 

Details

Whether there has been any modification, amendment, or revocation of Government Procurement Policy Board Circular No. 01-2008, entitled Clarification on the Adoption of Additional Eligibility and Technical Documents to Ensure Compliance with Labor Laws and Other Social Legislation.

[T]he GPPB has neither amended nor revoked its Circular No. 01-200. Thus, imposition of additional eligibility documents, including the certification of no pending case from DOLE is still proscribed under the present rules.

Requiring a clearance from the appropriate government authority that the bidder has no pending administrative or labor case filed against it during eligibility check is prohibited for reasons both practical and legal. It increases transaction costs for the bidder and, thus, negatively impacts on the competitiveness of a particular transaction. More importantly, it infringes on the bidder's constitutional right to due process and to his or her presumption of innocence. If allowed, any person may simply file a nuisance suit to disqualify an otherwise eligible and qualified bidder.

The NHA, as the procuring entity, however, is not devoid of measures. It may conduct strict post-qualification procedures to verify, validate and ascertain the statements made by a bidder in its certificate that it complies with existing labor laws and standards. The NHA may also include a provision in its contract with the specified periods during contract implementation. As a last resort, the NHA may consider blacklisting bidders found to have committed any of the grounds provided in Republic Act 9184 and its Implementing Rules and Regulations.