2004-11-10

NPM 143-2004

Requesting Entity: Bureau of Fire Protection

Issues Concern: Queries on Republic Act 9184 (R.A. 9184) and Its Implementing Rules and Regulations Part A (IRR-A)

 

Details

1. Is the failure of the BAC to require a simultaneous submission of the first and second envelopes sufficient ground to declare a failure of bidding?

A careful study of the foregoing prescriptions of the rules (Sections 23.1 and 25.1, IRR-A) and the law (Section 25, R.A. 9184) yields the intention of the law to require the simultaneous submission of the two (2) envelopes to avoid any window for modification or variation of the bids. Thus, the provisions of the law, being mandatory in character, should be complied with according to its letter and intent. Any procedural failure in the conduct of the bidding necessarily results in the failure of bidding.

Appropriately, in the case of the BFP, with regard to the circumstances raised for this office’s consideration, the right and prudent remedy for the BAC to rectify the already-identified error is to declare a failure of bidding under Section. 41 of IRR-A and conduct a re-bid in conformity with the prescribed rules.

The rules provide a mechanism to avoid the awkward and ill-ridden consequence of government agencies -- and private enterprises as well – in having to deal with and operate under a void contract that was acquired in violation of an express provision of law.


2. In the event of a failure of bidding, are the bidders who rated failed in the previous bidding allowed participation?

There are no special procedures provided under the law and the rules in case of a re-bid. The procedures to be observed in the re-bid shall be those prescribed under IRR-A as if it is an entirely new proceeding. Thus, except those that are found to be non-compliant to the rules, the BAC shall observe the same process and set the new periods according to the same rules followed during the first bidding. The BAC will have to re-advertise and/or re-post in accordance with Section 21 of RA 9184 and IRR-A.

As a necessary consequence of the procedures, the invitation to apply for eligibility and to bid opens the whole system to any and all desirous bidders. In this way, the principle of open competition in public bidding is conserved even in cases of re-bid.