2012-12-14

NPM 152-2012

Requesting Entity: Metropolitan Waterworks and Sewerage System (MWSS)

Issues Concern: Section 34.2 of the Revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184

 

Details

Whether the submission of required documents for post-qualification should be complied after the opening of the financial proposal/negotiation or prior to post-qualification.

Section 34.2 thereof provides that the bidder shall submit the enumerated documentary requirements within three (3) calendar days from receipt of the notice from the BAC that it offered the HRB. This provision is clear that it is only after the BAC has determined the bidder with the HRB and issued the corresponding notice that the bidder will be given three (3) calendar days to comply with the submissions under Section 34.2. Consequently, this implies that the documents are not yet required after the opening of the financial proposal/negotiation or prior to post-qualification. Nonetheless, as discussed in a previous opinion issued by this office, bidders are not precluded from submitting the post-qualification documents during the submission of bids.

Whether the three (3) calendar day period within which to submit the required documents under Section 34.2 of the IRR of RA 9184 is inclusive of the seven (7) calendar day period for post-qualification stated in Section 34.8 of the IRR.

Section 34.8 of the IRR of RA 9184 states that the post-qualification process shall be completed in not more than seven (7) calendar days from the determination of the HRB. Considering that the three (3) calendar day period under Section 34.2 of the IRR of RA 9184 is reckoned from the same point as the period for post-qualification, i.e., from determination of the Lowest Calculated Bid (LCB) or HRB, it is our considered view that said three (3) calendar day period is necessarily included in the seven (7) calendar day period for post-qualification.

Whether the verification slip issued by the Bureau of Internal Revenue may be considered in lieu of the Tax Clearance.

[W]hat is required under Section 34.2 of the IRR of RA 9184 is the submission of Tax Clearance per Executive Order (EO) No. 398 (or Tax Clearance Form 17.4B). x x x. Further, the use of the word "shall" in this provision makes the submission of the documentary requirements mandatory within the specified period. x x x. Hence, a verification slip issued by the BIR will not suffice in lieu of the Tax Clearance requirement since substitution is not allowed under Section 34.2 of the IRR. The Tax Clearance must be the document submitted at the outset.

Whether the subsequent submission of the Tax Clearance Certificate within the extended period granted by the Head of the Procuring entity (HOPE) fully complies with all relevant legal requirement.

[I]mplicit in Section 65.1(b) of the IRR of RA 9184 that post evaluation process beyond the prescribed period of action may be recognized for justifiable causes, such that, although the period of action required under the rules are mandatory in character, penal sanctions or liability will not set in against the concerned public officers provided that, valid, reasonable, and justifiable causes exist to warrant a delay in the process.

In this wise, we wish to clarify that extension of mandatory periods under the IRR of RA 9184, such as the three (3) calendar day period under Section 34.2 thereof, is prohibited. Should the PE decides to extend the same, it must show and provide compelling, sufficient, valid, reasonable, and justifiable cause for such extension.