Requesting Entity: Atty. Karen Joy H. Valencia-Bala
Issues Concern: No Contact Rule, Post-Qualification and Nature of Contracts
Whether by virtue of the "no contact" rule, a bidder may not submit information that may affect the qualifications of any bidder or the winning bidder; and that the Bids and Awards Committee (BAC) cannot entertain such communication even if it does not pertain to the bid submitted by the bidders.
[T]he "no contact" rule applies only to those whose bids are being evaluated by the BAC after passing the preliminary examination of bids. As such, until a decision to award a contract is made by the BAC through the issuance of a Notice of Award, no communication should be made by bidders whose bids are being evaluated to veer away from perceptions of bias or favor.
Bidders who waived their right to utilize the protest mechanism or those whose request for reconsideration and/or protest were subsequently denied are not covered by the prohibition under Section 32.1 of the IRR. Please note that there is nothing in the IRR of RA 9184 that disallows disqualified bidders from informing the BAC relative to the evaluation of the bids of eligible bidders. Since their bids are no longer part of the evaluation, the "no contact rule" need not be applied to them. Hence, disqualified bidders may convey to the BAC any valid, reasonable and lawful information or observation they have pertaining to the bids submitted by qualified bidders.
Whether the BAC should validate and verify the competence of each qualified and/or winning bidder in the event that it is provided information on the poor performance and track record of the winning bidder.
[T]he PE, through its BAC, is in the best position to determine the truthfulness and authenticity of the allegations made by a bidder against another bidder. It is clear from Section 34.3 of the IRR that only upon proper verification, validation and ascertainment of the documents submitted and the representations made that the winning bidder is declared legally, technically and financially responsive with the requirements of the project.
Whether the information submitted regarding the winning bidder's past projects should be of the same nature as that of the project being bid out by the Procuring Entity (PE) in order to be considered in validating or verifying the bidder's qualifications.
The nature of the project to be bid out does not have to be of the same nature as the past projects of the bidder to necessitate the need for the BAC to verify, validate and ascertain the bidder's legal, technical, and financial capabilities during post-qualification. However, such information should be material in determining the qualifications of the bidder