2012-12-28

NPM 166-2012

Requesting Entity: Bureau of Fire Protection (BFP)

Issues Concern: Submission of Tax Returns under the Electronic Filing and Payment System (EFPS) and Valid Joint Venture Agreement (JVA)

 

Details

How should Clause 29.2(b), Bid Data Sheet (BDS), 4th Edition Philippine Bidding Documents (PBD) for Goods, pertaining to the option to submit manually filed tax returns filed through the EFPS, be interpreted?

[A]lthough BDS Clause 29.2(b) provides an option to allow the submission of manually filed tax returns, the same must be exercised by the PE by indicating such option in the bidding documents. The failure of the PE to specify the manner in which the tax return should be filed will not qualify the application of said BDS Clause 29.2(b) as an exception to the general rule, which requires EFPS-filed tax returns.

Would there be a valid JVA in case the JVA is executed and notarized here in the Philippines before the actual arrival of the Joint Venture (JV) foreign partner?

A defectively notarized JVA is still a valid joint venture provided that the requisites of a valid contract exist. However, for purposes of complying with the provisions of RA 9184 and its IRR, the valid JVA should be notarized since JVAs need be notarized in order to be binding against third persons. Also, the JVA can be notarized even in the absence of the foreign JV partner, provided that a representative equipped with the authority, normally a SPA, to execute and sign the agreement personally appears before the notary public.

What would be the effect on the eligibility of the bidder when the document defectively notarized pertains to the Special Power of Attorney (SPA)/authority of the signatory from the foreign partner?

A defectively notarized SPA/letter of authority will not affect the validity of the JVA, because a SPA/letter of authority need not be notarized for a representative to execute a JVA. However, it will be different if the consent of the foreign JV partner is not truly given as when there is misrepresentation on the part of the false agent, for in such situation, a scenario arises where the local JV partners entered into a JVA with the misrepresenting agent and not with the intended foreign JV partner.