2012-07-11

NPM 084-2012

Requesting Entity: Izumo Contractors, Inc.

Issues Concern: Protest on Decisions of the Bids and Awards Committee (BAC)

 

Details

What is the procedure in contesting the decision of the BAC at any stage of the procurement process?

If a x x x bidder desires to contest the BAC's decision at any stage of the procurement process, Section 55.1 of the Revised IRR of RA 9184 provides that said bidder should file a request for reconsideration within three (3) calendar days upon receipt of written notice or verbal notification. If the same is denied, the bidder must file a protest in the form of a verified position paper with the Head of the Procuring Entity (HOPE) within seven (7) calendar days from receipt of the BAC's denial of the request for reconsideration. In the event that such protest is filed, the same shall not stay or delay the bidding process, but the protest should be first resolved before any award can be made.

Whether the filing of a request to hold the proceedings of the bidding in abeyance stays or delays the procurement process.

[A] protest filed with the HOPE preceded by a request for reconsideration filed with the BAC are the proper steps to take in order to prevent the awarding of the contract until such time that the protest has been resolved. Hence, a mere request to hold the proceedings in abeyance which is filed after bid opening will not suffice. Otherwise, the bidding process would be unnecessarily hampered if each bidder may simply request to hold the proceedings in abeyance without following the correct process within the proper periods laid out by the rules.

It is a settled rule that compliance with the mandatory protest mechanisms of law is jurisdictional in character. Thus, the Supreme Court has ruled that aggrieved party's failure to avail of the proper procedure on protest amounts to non-compliance with the mandatory protest mechanisms and a valid ground for dismissing a court action due to lack of jurisdiction.

What is the remedy left to the bidder if there is already an award of contract?

[S]ince Izumo claims to have been notified of the bidding results only after the award had already been made, it appears that a protest before the HOPE would no longer be feasible because as aforementioned, a protest aims to stay the awarding of the contract until such time that the protest had been resolved. Since an award had already been made, the only recourse left for the bidder is to directly resort to the proper court via Petition for Certiorari under Rule 65 of the Rules of Court.