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I.

INTRODUCTION
1. PROCUREMENT1
A. Definition
1. Procurement refers the acquisition of goods, consulting services, and the contracting for
infrastructure projects by the procuring entity. The definition also encompasses lease of
goods and real estate.2

B. Guiding Principles
1. The GPRA lays down the five principles to govern government procurement
transparency, competitiveness, streamlining, accountability, and public monitoring.
a. Transparency is achieved by publicizing bid opportunities and promoting
participation of non-government organization. It is sought not only during the
procurement process but also during implementation of contracts.
b. To nurture competitiveness, equal opportunities are provided to parties who are
eligible and qualified to participate in the process.
c. A streamlined simple, modernized, and uniformly applicable procurement
process will guarantee effectiveness and efficiency.
d. Accountability is reinforced by the fact that public officials and private parties,
directly or indirectly, involved in the procurement process and contract
implementation may be investigated and held liable for their actions.
e. Public monitoring of the procurement process and implementation of contracts
ensure that contracts are properly awarded pursuant to the provisions of the GPRA
and performed strictly according to specifications.

C. Subjects of Procurement
The GPRA provides for the procurement of (1) goods, (2) consulting services and (3)
infrastructure projects.
1. Goods in general refer to supplies, materials and general support services essential to
the operation of a government entity or needed in the performance of government
programs and projects.
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2

LEGAL REFERENCE: R.A. 9184, GPRA R-IRR.


Sec. 5, (aa), GPRA R-IRR.

2. Consulting Services are those which require adequate external technical and
professional expertise beyond the capability and/or capacity of the Government to
undertake.3
a. These services include, among others, (i) advisory and review services, (ii) preinvestment or feasibility studies, (iii) design, (iv) construction supervision, (v)
management and related services, and (vi) other technical services or special studies.
They will further be discussed in the succeeding sections.
3. Infrastructure Projects under the GPRA include the construction, improvement,
rehabilitation, demolition, repair, restoration or maintenance of roads and bridges,
railways, airports, seaports, communication facilities, civil works components of
information technology projects, irrigation, flood control and drainage, water supply,
sanitation, sewerage and solid waste management systems, shore protection,
energy/power and electrification facilities, national buildings, school buildings, hospital
buildings, and other related construction projects of the government.4

D. Kinds of procurement
The preferred mode for government procurement is competitive bidding. Thus, procurement
shall be done through competitive bidding, unless circumstances require the use of other
procurement methods. The alternative procurement methods available depend on the subject of
the procurement.
1. Competitive or public bidding is a method of procurement that is open to all
interested and qualified parties. (h)
2. Alternative Procurement as earlier mentioned is resorted to only when the specified
conditions for the applicability of each method have been satisfied.
a.

In Limited Source or Selective Bidding, pre-selected suppliers or consultants with


known experience and proven capability demanded by the contract are directly
invited by the procuring entity to bid.
a.1. This method may be employed in the following cases:
a.1.1. Procurement of highly specialized types of goods (e.g., sophisticated
defense equipment, complex air navigation systems, coal) and consulting services
where only a few suppliers or consultants are known to be available, such that
resorting to the public bidding method will not likely result in any additional
suppliers or consultants participating in the bidding; or

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4

Sec. 5, I, GPRA R-IRR.


Sec.5, u, GPRA R-IRR.

a.1.2 Procurement of major plant components where it is deemed advantageous to


limit the bidding to known qualified bidders in order to maintain uniform quality
and performance of the plant as a whole.5
b. In Direct Contracting or single source procurement the supplier is simply asked to
submit a price quotation or a pro-forma invoice together with the conditions of sale,
thus eliminating the need to bother with bidding documents.
b.1. This method is available for:
b.1.1. Procurement of goods of proprietary nature which can be obtained only
from the proprietary source, i.e. when patents, trade secrets, and copyrights
prohibit others from manufacturing the same item;
b.1.2. When the procurement of critical components from a specific supplier is a
condition precedent to hold a contractor to guarantee its project performance, in
accordance with the provisions of its contract;
b.1.3. Those sold by an exclusive dealer or manufacturer which does not have
sub-dealers selling at lower prices and for which no suitable substitute can be
obtained at more advantageous terms.
c.

Repeat Order is a method of procurement of goods from a previous winning bidder,


whenever there is a need to replenish goods procured under a contract previously
awarded through Competitive Bidding.
c.1. Repeat orders are further subject to the following conditions:
c.1.1. Unit prices of the repeat order must be the same as or lower than those in
the original contract, provided that such prices are still the most advantageous to
the GOP after price verification;
c.1.2. The repeat order will not result in splitting of contracts, requisitions, or
purchase orders, as provided for in Section 54.1 of this IRR;
c.1.3. Except in cases duly approved by the GPPB, the repeat order shall be
availed of only within six (6) months from the contract effectivity date stated in
the Notice to Proceed arising from the original contract; and
c.1.4. The repeat order shall not exceed twenty-five percent (25%) of the quantity
of each item in the original contract.

d.
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Shopping is a method of procurement of goods whereby the procuring entity simply


requests for the submission of price quotations for readily available off-the-shelf

Sec. 49, GPRA R-IRR.

goods or ordinary/regular equipment to be procured directly from suppliers of known


qualifications.
d.1. This method of procurement shall be employed in any of the following cases:
d.1.1. When there is an unforeseen contingency requiring immediate purchase:
Provided, however, That the amount shall not exceed the prescribed thresholds;
d.1.2. Procurement of ordinary or regular office supplies and equipment not
available in the Procurement Service involving an amount not exceeding the
prescribed thresholds.
e. Negotiated Procurement is a method of procurement of goods, infrastructure
projects and consulting services, whereby the procuring entity directly negotiates a
contract with a technically, legally and financially capable supplier, contractor or
consultant in any of the following cases:
e.1. Two Failed Biddings
e.2. Emergency Cases
e.3. Take-Over of Contracts
e.4. Adjacent or Contiguous
e.5. Agency-to-Agency
e.6. Procurement Agent
e.7. Highly Technical Consultants
e.8. Defense Cooperation Agreement
e.9 Small Value Procurement
e.10. Lease of Real Property
e.11. NGO Participation
e.12. Community Participation
e.13. United Nations Agencies

Goods

Alternative Methods Available


Limited Source Bidding
Direct Contracting
Repeat Order
Shopping
Negotiated Procurement

Consulting Services

Limited Source Bidding


Negotiated Procurement

Infrastructure Projects

Negotiated Procurement

2. CONSULTING SERVICES
A. Consultant
1. A consultant is natural or juridical person, qualified by appropriate education, training
and relevant experience to render any or all of the types and fields of consulting services
provided in the GPRAs revised IRR.
Elements

Natural/juridical person
Hired based on expertise, experience and
capability
Filipino consultants preferred if services
required within their expertise
Technology and knowledge transfer to PE
when applicable

B. Guidelines for Hiring Consultants


1. Consultants must be hired based on their proven expertise, experience and capability.
Cost may likewise be considered a factor in selection of consultants in certain cases.
2. Filipino consultants are preferred whenever the services needed are within their expertise
and capability. However, upon determination by the HOPE that they do not possess
sufficient expertise demanded by the service required, foreign consultants may be hired.
3. All pertinent laws and regulations of the Philippines shall be followed in hiring foreign
consultants.
4. Whenever applicable, contracts for consulting services will provide technology and
knowledge transfer to the procuring entity.

C. Consulting Services
1. Simply put, consulting services refer to services which require technical and professional
expertise beyond the in-house capability of the procuring entity. The same should be
distinguished from general services which are treated as goods under the GPRA, and are
thus procured the following the rules for procurement of goods.
2. To avoid the confusion wrought by their seeming similarities, it is important to note that:
a. Service as Goods Services classified as goods under the GPRA include nonpersonal or contractual services which include repair and maintenance of equipment
and furniture, as well as trucking, hauling, janitorial, security, and related or
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analogous services, as well as procurement of materials and supplies provided by the


procuring entity for such services.
a.1. Related or analogous services shall include, but not be limited to, lease or
purchase of office space, media advertisements, health maintenance services, and
other services essential to the operation of the procuring entity.
b. Service as Consultancy Meanwhile services falling under consultancy services are
those which require adequate external technical and professional expertise beyond the
capability and/or capacity of the Government to undertake.

Examples from
definition

Examples from
DOH practice6

Service as Goods
Repair and maintenance
of equipment/furniture
Janitorial
Security
Advertisements

Event organizing
Brokerage Services
Distribution and
Hauling
Packaging, sorting,
warehousing and
delivery of DOH
Complete Treatment
Packs
Radio Placement
30-sec Infomercial

Service as Consultancy
Financial, legal
services
Feasibility Studies
Project Management
Institutional
Strengthening

Quality Management
Systems for ISO
Certification
Expenditure
Tracking System
Development of
Policy Notes
Impact Evaluation of
HEMS
Short Course on
Urban Health Equity

D. Kinds of Consulting Services7


1. Advisory and review services consist of review and provision of advice on particular
projects or problems. It covers provision of professional services.
2. Pre-investment/feasibility studies are those which are undertaken by an entity, in order
for it to decide whether or not it should go through with specific projects.
3. Design services include determination of size, scope and location of projects,
preparation of detailed plans and designs, and support services during construction.

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Examples are based on the Procurement Monitoring Reports (PMR) submitted by the DOH from 2011-2013.
RIRR Annex B.

4. Construction supervision (defined by examples, see table below)


5. Management and related services (defined by examples, see table below)
6. Other technical services or special studies which do not fall within the categories
above, but likewise refer to services requiring specialized expertise to be rendered over a
specified period may be considered consulting services.
Kind of Service
Advisory and
Review Services

Examples

Pre-Investment or
Feasibility Studies

To establish investment priorities and sector policies;


To determine the basic features and the feasibility of individual projects;
To define and propose changes in governmental policies, operations and
institutions necessary for the successful implementation or functioning of
investment projects

Design

Pre-Design Phase
Basic Design Phase
Support Services during construction

Construction
Supervision

Inspection and expediting of the work;


Verification and checking of quantities and qualities of work accomplished by the
contractor as against the approved plans, specifications, and programs of work;
Issuance of instructions for correcting on the work;
Verification and recommendation for approval of statements of work
accomplished and certificate of project completed by the contractor;
Review and recommendation for approval of progress and final billings of the
contractor; and
Provision of record or as-built drawings of the completed projects.

Management and
Related Services

Other Technical
Services and

Planning, System and Implementation Design, Financial, Fiscal, Legal and other
professional services;
Management, production, inspection, testing and quality control;
Appearances before commissions, boards or other judicial bodies to give
evidence or submit professional options.

Sector policy and regional development studies;


Planning, feasibility, market, economic, financial, technical, operations and
sociological studies;
Project management, including procurement advisory services, impact
monitoring, and post-evaluation services;
Production management, inventory control, and productivity improvement;
Marketing management and systems;
Information and communications technology services, including but not limited
to, information systems design and development, and network design and
installation;
Institutional strengthening, organization development, manpower requirements,
training and technology transfer;
General management consultancy; and
Other related services.

Other technical services include:


Institution building, including organization and management studies, and

Special Studies

business process re-engineering and development;


Design and execution of training programs at different levels;
Provision of staff to carry out certain functions and to train their replacements;
and
Tasks relating.

Special studies include the following:


Soils investigation;
Studies, tests and process determination performed to establish design criteria for
water facilities;
Detailed mill, shop, and / or laboratory inspection of materials and equipment;
Land surveys, establishment of boundaries and monuments, and related office
computations and drafting;
Parcellary surveys;
Engineering surveys (for design and construction) and photogrammetry;
Assistance in litigation arising from the development or construction of projects
and in hearings before various approving and regulatory agencies;
Investigation involving detailed consideration of the operation, maintenance, and
overhead expenses; and the preparation of rate schedules; earning and expense
statements, feasibility studies, appraisals, evaluations, and material audits or
inventories required for certification of force account construction performed by
the agencies;
Preparation of environmental statements and assistance to the agencies in public
hearings;
Preparation of operating instructions and manuals for facilities and training of
personnel and assistance in initial operation of facilities;
Designs to meet unique and / or above normal requirements brought about by
severe earthquakes, tornadoes, or blasts, or satisfy unique or abnormal tolerances,
safety requirements, etc.;
Site and physical planning;
Environmental and other aspects of planning;
Housing;
Interior design;
Studies on preservation and restoration of historical, cultural, and artworks;
Landscaping;
Construction management; and
Defense systems design, including self-reliance defense program.
Others.

E. Organization of Consultants
1. The umbrella organization of consultants recognized by the government shall be
composed of various organizations of consultants that may be engaged by the
government.
a. It shall accredit its members based on the types of services and professional fields
wherein they are technically and financially qualified. To this end it shall prepare,
certify, and regularly update a list of accredited local consultants sorted according to
fields of services and expertise, which it shall also disseminate to appropriate
government agencies. It is likewise tasked with regulating its members for the
development of the industry.
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b. The recognition of umbrella organizations shall be done by the GPPB.


c. The umbrella organization may be consulted by the government on matters relating to
the industry.
2. The umbrella organization may submit its files of accredited consultants to the BAC of
the procuring entity in accordance with the form prescribed by the BAC; such submission
can serve as registration of the consultants. However, the accredited consultant concerned
must still comply with the eligibility requirements.
3. Qualification statements and the list of accredited consultants from the umbrella
organization shall guide the BAC in determining the availability of qualified and capable
Filipino consultants and whether or not the hiring of foreign consultants may be allowed.

F. GPPB Opinion
1. 2013-12-27, NPM 127-2013 What are general support services; encoding services
a. The term "general support services" is understood to include those services that are
essential, indispensable, or necessary to support the operations of the procuring entity
or for the enhancement of the welfare of its personnel, including non-personal or
contractual services.
In this regard, if the encoding services being acquired by DOTC are essential,
indispensable, or necessary to support its operations, then such service may be
considered within the coverage of the term "general support services".

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3. DOH PROCUREMENT STRUCTURE8

Head of
Procuring
Entity (HOPE)
Integrity Development
Committee
Resident Ombudsman
Bids and Awards
Committee (BAC)

BAC Secretariat

Internal
Observer

Technical Working Group


(TWG)

External
Observer

End-User

A. Procuring Entity
1. A procuring entity is any branch, department, office, agency or instrumentality of the
government.

DOH Procuring Entities


Services and Bureaus in Central Office

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Centers for Health Development

16

DOH Hospitals

70

Attached Agencies

Secs. 5.bb, 11, 12, 13 and 14, GPRA R-IRR.

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B. Procuring Unit
1. The procuring unit shall refer to the office of the procuring entity which carries out the
procurement function.

C. Head of Procuring Entity (HOPE)


1. The HOPE is the head of the agency or body or his/her duly authorized official.
Authorized Officials in DOH Structure
Central Office

Secretary of Health

Center for Health


Development
DOH Hospitals,
Special Hospitals, and
Medical Centers

CHD Director IV

Bureaus and Attached


Agencies

Executive Director

Chief of Hospitals / Medical


Center Chief /
Executive Director

D. Bids and Awards Committee (BAC)


1. Each procuring entity shall establish in its head office a single BAC in order to facilitate
the professionalization and harmonization of procedures and standards.9
2. However, the HOPE is given the prerogative to create a separate BAC where the number
and complexity of the items to be procured so warrants.
a. Accordingly, separate BACs may be organized in the following:
a.1. Geographical location of the Project Management Officer (PMO) or end-user
units
a.2. Nature of the procurement.
b. Presently, the DOH Central Office has four separate BACs.
3. For the DOH Central Office:
a. HOPE must designate at least five (5) but not more than seven (7) members to the
BAC of unquestionable integrity and procurement proficiency.

Section 11.1.1, GPRA R-IRR.

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Central Office BAC Composition


Five-member BAC

Three (3) regular members


Two (2) provisional members

Seven-member BAC

Three (3) regular members


Four (4) provisional members
Five (5) regular members
Two (2) provisional members
Four (4) regular members
Three (3) provisional members

COBAC Membership
Chairperson

Regular Member
Plantilla Position
At least Assistant Secretary

Vice-chairperson

Regular Member
Plantilla Position

Regular Members

Plantilla Position
Director III and above

Provisional Members

Representative from end-user unit


Has technical expertise on procurement at
hand
Same qualifications as principal

Alternate Members

4. Appointment to the BAC is in the nature of a designation, in addition to the regular duties
of the subject official.
5. The members of the BAC shall have a fixed term of one (1) year reckoned from the date
of appointment, renewable at the discretion of the HOPE.

E. BAC Secretariat
1. The BAC Secretariat shall serve as the main support unit of the BAC, providing
administrative as well as technical support in procurement activities.
2. For the DOH Central Office, the Procurement Service serves as the BAC Secretariat.
F. Technical Working Group (TWG)
1. The TWG is a pool of technical, financial, and/or legal expert to assist in the procurement
process particularly in the eligibility screening, evaluation of bids, and post-qualification.
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2. TWG member must possess certain qualifications such as skills, educational background,
or extensive training in a particular field to be referred to as experts.

G. Observers
1. To enhance the transparency of the process, the BAC shall, in all stages of the
procurement process, invite, in addition to the representative of the COA, at least two (2)
observers, who shall not have the right to vote, to sit in its proceedings.
2. Observers shall be invited to sit in the proceedings involving all stages of the
procurement process of the Procuring Entity concern. All stages of the procurement
process denote that the observers shall be invited to observe in the following
procurement stages:10
a. Pre-Procurement Conference;
b.

Pre-bid Conference;

c.

Opening of Bids;

d.

Bid Evaluation;

e.

Post-qualification; and

f. Contract Award.
3. DOH has an existing agreement with National Citizens Movement for Free Elections for
the designation of two (2) observers in the COBAC as well as in various BACs of CHDs
and Hospitals.11

F. GPPB Recogized Trainers


1. The DOH Central Office has three (3) GPPB recognized trainers. They had to undergo
training under the GPPB for two (2) weeks, and thereafter undergo a comprehensive
examination.
2. As GPPB recognized trainers, they are tasked with conducting procurement training
within their institution. Occasionally, they are invited by the GPPB as resource persons in
trainings of other government agencies, and government hospitals.

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DOH Procurement Manual, Vol 1.


Memorandum of Agreements/ Letter of Partnership with National Citizens Movement for Free Elections
(NAMFREL) Transparency and Accountability Network (TAN), respectively including DOH Executive Committee
Resolution. Effective: 23 March2006.
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3. These trainers from the DOH are:


a. Ms. Crispinita A. Valdez - Director III, Information Management Service;
b. Dr. Kenneth G. Ronquillo Director IV, Health Human Resource Development
Bureau; and
c. Dr. Ma. Theresa G. Vera Director III, Procurement Service
4. While the GPPB invitations for Trainer trainings request that participants sent be at least
of Director-level, there are recognized trainers from other government agencies which are
not of such rank.
G. Honoraria12
1. The Chairperson and members of the BAC and TWG may be paid honoraria only for
successfully completed procurement projects.
2. The Procuring Entity is authorized to grant honoraria to BAC, BAC Secretariat, and
TWG members subject to the following conditions:
a. The amount so granted does not exceed twenty-five percent (25%) of their respective
basic monthly salary;
b. Funds are available for the purpose; and
c. The grant of honoraria conforms to the guidelines promulgated by the DBM.
3. Department Undersecretary or Assistant Secretary who concurrently serves in the BAC,
in whatever capacity, shall not be entitled to honoraria.
4. The members of the BAC Secretariat whose positions are in the Procurement Unit of the
agency shall not be entitled to honoraria.

H. Procurement Assistance
1. Government Procurement Policy Board
a. The GPPB regularly issues circulars to provide guidance in procuring activities.
b. The GPPB responds to procurement related queries by various government agencies
by issuing Policy and Non-policy Opinions.
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Sec. 15, GPRA R-IRR.

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a.1. The distinction between the two is not clearly established. However, a perusal of
the archives of Policy and Non-policy Opinions provides the impression that while
they are essentially the same, policy opinions are issued in favour of government
agencies/institutions, while non-policy opinions may be requested by private parties
which participate in government procurement.
2. Various Government Agencies Adept in Certain Kinds of Procurement
a. Procurement Agent - In order to hasten project implementation, Procuring Entities
which may not have the proficiency or capability to undertake a particular
procurement, as determined by the Head of the Procuring Entity concerned, may
request other agencies to undertake such procurement for them.
a.1. For example, in the procurement of certain items, the DOH at times requests the
assistance of the National Kidney and Transplant Institute (NKTI).
3. Procurement Experts
a. In highly meritorious cases the procuring entity may engage the services of
consultants to assist the TWG and the BAC in the procurement process.
a.1. In determining what highly meritorious cases, we refer to the certification
which the Head of the Procuring Entity should make before hiring procurement
consultants. The certification is to the effect that in-house experts cannot provide
adequate technical, financial, legal or project or contract management advice related
to the procurement.
a.2. The hiring of such consultants is subject to availability of funds. Moreover, such
consultants shall serve only in an advisory capacity, and are not entitled to vote on
matters considered.

I. Relevant Jurisprudence
1. Villanueva v. COA, G.R. No. 151987, March 18, 2005
a. The Resident COA representative is only an observer during the procurement process.
As such he/she may not participate or be actively involved in the bidding.
b. The Auditor's presence or that of his duly authorized representative is as witness only
with specific functions to perform maintenance of documentary integrity and
physical security of the records of the bidding
2. Sison v. Tablang, G.R. No. 177011, June 5, 2009

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a. An honorarium is defined as something given not as a matter of obligation but in


appreciation for services rendered, a volrtaluntary donation in consideration of
services which admit of no compensation in money. Section 15 of R.A. No. 9184 uses
the word may which signifies that the honorarium cannot be demanded as a matter
of right.
b. The payment of honoraria to the members of the BAC and the TWG must be
circumscribed by applicable rules and guidelines prescribed by the DBM, as provided
by law.

J. GPPB Opinion
1. 2013-04-22, NPM 038-2013 LRTA requests DOTC to be its Procurement Agent
a. [R]esort to Section 53.6 of the IRR is couched upon the condition that there is a
general determination of lack of proficiency or capability by the procuring entity to
undertake a particular procurement. It does not qualify or limit the lack of proficiency
or capability to specific circumstances. Thus, it is our view that LRTA may request
DOTC to be its PA, provided that the LRTA has determined that it lacks the
proficiency or capability to undertake the LRTA Rehabilitation Projects, which need
not be based solely on LRTA's failure to constitute its BAC. It must be emphasized,
however, that in the conduct of the actual procurement, the PA should strictly apply
the rules and procedures embodied in RA 9184 and its IRR.
2. 2012-11-05, NPM 143-2012 Start-up government agency requests use of another
government agencys BAC, for it still has to form its own BAC
a. Section 53.6 of the revised Implementing Rules and Regulations (IRR) of Republic
Act (RA) No. 9184 provides that PEs which may not have the proficiency or
capability to undertake a particular procurement, as determined by the Head of the
Procuring Entity (HOPE) concerned may - (i) request other government agencies to
undertake such procurement for them; or (ii) engage procurement agents to assist
them directly and/or train their staff in the management of procurement function.
Considering that CIC cannot constitute its BAC meantime due to lack of personnel,
we are of the view that it may request other government agencies, such as the SECBAC, to procure in its behalf.
3. 2013-06-26, NPM 059-2013 Grant of Honoraria
a. Section 5.2 of the DBM Circular No. 2004-5A (Circular) provides that the payment
of honoraria shall be limited to procurement that involves competitive bidding, which
is present only in Competitive Bidding (Section 10), Limited Source Bidding (Section
49), and Negotiated Procurement under Two-Failed Biddings (Section 53.1).
Conversely, honoraria will not be paid when procurement is through all the other
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alternative modes of procurement provided in RA 9184 and its IRR where


competitive bidding or a semblance thereof is considered not present. Hence,
honoraria should not be given when the procurement method used is Negotiated
Procurement (Small Value Procurement).
4. 2012-09-12, NPM 114-2012 Effect of Absence of Observers
a. Section 13.3 of the IRR, x x x, mandates that Observers shall be invited at least three
(3) calendar days before the date of the procurement stage/activity and the absence of
Observers will not nullify the BAC proceedings, provided that they have been duly
invited in writing. It is clear from Section 13.3 of the revised IRR that the Procuring
Entity (PE) should extend an invitation to the intended Observers so that the
representatives are duly informed of the planned bidding. If any of the Observers fail
to attend the bidding on the indicated schedule, the procurement process should
continue since the absence of any of the observers is not a ground to delay the
proceedings. Conversely, in case the PE fails to properly invite and/or inform the
Observers of the planned procurement process, then the bidding could not proceed
without the PE satisfying this requirement.

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II. PROCUREMENT PLANNING13


Period:

Beginning of the fiscal year

Participants: End-users, Procuring Entity


Budget Office
HOPE
BAC
BAC Secretariat
Oversight bodies
Requisites:

Budget Call from the DBM

Purpose:

To ensure better allocation of resources which ultimately lowers the


procurement costs creating substantial savings, thereby ensuring access to
quality health goods and services
To ensure that resources match expected health outcomes through better
scheduling of procurement activities, better cash allocation, and
expenditure management

Tasks:

Preparing Work Financial Plans


Developing Project Procurement Management Plans
Consolidating PPMPs into Annual Procurement Plan
Approval of the Annual Procurement Plan

DBM
Budget Call

Prepare
WFP

Develope
PPMP

Consolidate
PPMP to
APP

Approve
APP

A. Procurement Planning
1. Preparations for the next fiscal years procurement start at the beginning of the fiscal year
and inextricably tied to planning annual projects and budgets
2. Each DOH Procuring Entity must judiciously plan its procurement for the whole year.
3. Procurement planning should be within the Procuring Entitys Budget Proposal reflecting
its priorities and objectives for the budget period.

B. Procedure

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Legal Reference: Sec.7, GPRA R-IRR.

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1. The Procuring Entity annually prepares an Agency Budget Proposal. The process is
triggered by the DBMs issuance of the Budget Call.
2. End-user units of the Procuring Entity prepare their respective Work Financial Plans
(WFP) for their different Programs, Activities, and Projects (PAPs) using the authorized
forms provided by the DBM annexed to the Budget Call.
a. The WFP contains the detailed list of projects and their corresponding budgetary
allocation.
3. Each end-user unit must submit their respective WFP to the Procuring Entitys Budget
Office on or before May of each year.
4. WFPs will be evaluated and, if acceptable, included in the Procuring Entitys Budget
Proposal.
a. The WFPs will support the Budget Proposal submitted to DBM.
b. WFP of each end-user unit of the Procuring Entity will be the basis for the proposed
Project Procurement Management Plan (PPMP).
5. End-user units of the Procuring Entity shall prepare their respective PPMP for their
proposed PAPs in the prescribed forms.
6. PPMPs shall then be submitted to the Procuring Entitys Budget Office for evaluation
and if acceptable, inclusion in the Budget Proposal for approval by the HOPE14
7. After the approval by the HOPE and/or other oversight bodies of the budget proposal, the
Budget Office shall furnish a copy of the Procuring Entitys Budget Proposal as well as
the corresponding PPMPs to the BAC Secretariat for review and consolidation with the
proposed Annual Procurement Plan (APP) which shall be consistent with the Budget
Proposal submitted.15
8. As soon as the General Appropriations Act (GAA) becomes final, usually around
November to December, the end-user units shall revise and adjust the PPMP to reflect the
budgetary allocation of their respective PAPs.16
9. The revised PPMP shall be submitted to the BAC, through its Secretariat, for the
finalization of the modes of procurement under the proposed APP.17
10. The APP shall be approved by the HOPE or the second-ranking official designated by
the HOPE to act on his behalf.18
14

Sec. 7.3.3, GPRA R-IRR.


Sec.7.3.4, GPRA R-IRR.
16
Sec. 7.3.4, GPRA R-IRR.
17
Sec. 7.3.5, GPRA R-IRR.
15

20

1. PROJECT PROCUREMENT MANAGEMENT PLAN19


Period:

Beginning of the fiscal year

Participants: Procuring Entity, End-users


Requisites:

Work Financial Plans (WFPs) for the Programs, Activities and Projects,
(PAPs) must already be available

Purpose:

To serve as procurement planning guide document during procurement


and contract implementation and contract implementation, and as a vital
reference in procurement monitoring

Tasks:

Developing Project Requirements


Determining the Approved Budget for Contract
Drafting the Terms of Reference
Plotting Procurement Milestones
Determining Method of Procurement

A. The Project Procurement Management Plan


1. The PPMP is a document prepared by the end-user units that reflects the different PAPs,
as well as the mode of procurement to be undertaken for the succeeding calendar year, in
consideration of the DOH Budget Proposal.
2. It is the basis of the Annual Procurement Plan.
3. Primarily, the PPMP deals with Procurement planning for various project requirements,
bidding and procurement strategy, source selection, delivery and payment schedule,
contract administration, contract termination, and other milestones.
4. A PPMP shall contain the following information20:
a. Whether PAPs will be contracted out, implemented by the administration in
accordance with the guidelines issued by the GPPB, or consigned21;
b. The type and objective of the contract to be employed;
18

Section 7.2 of the revised IRR.


LEGAL REFERENCE: Sec. 7, GPRA R-IRR.
20
Sec. 7.3.2, GPRA R-IRR.
21
Consignment under the GPRA refers to the agreement wherein a natural person or juridical entity, referred to as
consignor, enters into an agreement with the Procuring Entity (consignee) to consign goods for a particular period of
time without disbursement of government funds such that the only responsibility of the consignee is to sell the goods
and remit whatever proceeds of sale therefrom to the consignor.
19

21

c. The extent or size of contract scope and packages;


d. The procurement method to be adopted, indicating if the procurement is to be
outsourced, when the proficiency or capability to undertake a particular procurement
is wanting as determined by the HOPE concerned, through another Agency of GOP
or through the recruitment of competent consultants, at the option of the end-user22.
e.

The time schedule for each procurement activity and for the contract implementation;
and

f.

The estimated budget for the general components of the contract.

5. With the PPMP, the Procuring Entity is directed to follow a specific action plan and
employ a definite mode of procurement. Thus, it ensures strict adherence to the
provisions of the GPRA and significantly reduces, if not eliminate, graft and corrupt
practices by procurement personnel.

B. PPMP Preparation
Consolidate
APP

Develop
Project
Requirements

Determine ABC

Plot
Milestones

Determine
Procurement
Method

1. Develop Project Requirements


a. The development of Project Requirement should coincide with the preparation of the
proposed PPMP.
b. At this stage, the PMOs and End-user units may perform the following:
a. Identify the needs

Developing Project Requirements


i. What are the prevailing needs or problems needed
to be addressed?
ii. Will procurement satisfy these needs?
iii. What is the purpose of procurement?

b. Identify the method of


procurement

22

i. What mode of procurement will be advantageous


in satisfying the needs identified?
ii. What procurement strategy will be adopted?
iii. Will contracting out be necessary or is the
employment of the procurement procedure
prescribed by the R.A. 9184 and the revised IRR
enough to meet the needs identified? Or will
consignment be the best solution to the problem

Section 53.6 of the revised IRR

22

presented?
c. Identify the alternative
solution

i. What alternative solutions in satisfying the needs


are available in the market?
ii. Are these alternative solutions attainable?
iii. How much is the cost of each alternative?
iv. What is the profile of the supply market?
v. What are the sources of these products and
services?
vi. Are the products and services readily available?

d. Compare the Alternative


Solutions

i. Best Value for Money


ii. Risk Assessment and Management
iii. Government Policies Affecting Procurement
iv. Other Relevant Factors Identified

e. Decide

Choose from among the alternative solution one


that is most beneficial to the Procuring Entity and
make the necessary recommendation to the
Approving Authority.

2. Determine Approved Budget for Contract (ABC)


a. The ABC is the budget for the contract duly approved by the HOPE as provided in
the General Appropriations Act, continuing and automatic appropriation. It also
pertains to the estimated contract cost for Foreign-funded procurement.
b. In determining the ABC the end-user shall take into consideration:
b.1. Budgetary constraints embodied in the Budget Proposal as well as the APP;
b.2. Appropriation for the project or procurement reflected in the APP;
b.3. Market price of the goods to be procured or the value of the services to be
rendered;
b.4. Inflation or the cost of money which is related to the process of procurement; or
b.5. Mode of procurement sought to be enforced.
3. Terms of Reference
a. The Terms of Reference (TOR) for Consulting Services is the document prepared by
the Procuring Entity that provides the detailed description of the services deliverable
by the Consultant.
b. Guidelines in preparing the TOR (this shall be further be discussed in the succeeding
sections)
23

b.1. Product Quality It is essential that the quality of the service is determined and
set in writing.
b.2. Product Description The technical description of the product to be procured
should not be generic, not brand or product specific, unless it falls under the
exceptions products with intellectual property rights attached, those exclusively
offered by a single source, or with no substitutes. Description must be clear and
unambiguous.
b.3. Due to the complexity and highly technical nature of some procurement, of
which the Procuring Entity lacks necessary technical proficiency, it is prudent to
engage as consultants a pool of technical experts to assist in the preparation of TOR.
Due care should be taken that in-house consultants are not connected with the
prospective bidders and are barred from participating to the procurement at hand.
b.4. Clearance from Clearing Houses
b.4.1. Technical specifications in the procurement of goods and other related
services, infrastructure, and consulting services requiring technical expertise shall
be cleared with clearing houses having such expertise or the mandate to perform
such activity.
b.4.2. Designated DOH Services/ Divisions/Bureaus shall serve as clearing houses
which shall review and evaluate the procurement requirement of the different
End-user Offices/PMOs based on the (a) needs, (b) specifications and (c) cost.23
Pertinent DOH Clearing Houses
Consulting services
Health Policy Development and
Planning Bureau
National Center for Health
Promotion

Printing and audio visual supplies and


equipment
Tri-media placements or advertisements

National Center for Health Facilities


Development - Health Infrastructure
Division

Major repairs that require re-planning and


re-design and civil works
Construction design and supervision

Procurement Service

All other procurement (not identified in


the DPO).

23

Department Personnel Order No. 2006-1427: Reconstitution of Various Procurement Committees in the DOH
Central Office and Definition of Functions and Responsibilities, 10 MAY 2006,
(http://home.doh.gov.ph/dp/dpo2006-1427.pdf).

24

b.5. To allow the Procuring Entity to procure the latest products and/or services
available in the market, changes in technology or changes in the concerned industry
or field of expertise should be taken into account in writing the TOR.
4. Procurement Milestones
a. The procurement milestones referred to are the following:
a.1. pre-procurement conference (if required or necessary),
a.2. publication and/or posting of the opportunity,
a.3. pre-bid conference,
a.4. submission of eligibility and bid requirements,
a.5. bid evaluation,
a.6. determination of LCRB or HRRB,
a.7. issuance of Notice of Award,
a.8. contract approval and execution,
a.9. issuance of Notice To Proceed,
a.10. delivery dates or commencement of project implementation.
b. This will ensure that logistical support and other requirements of the Procuring Entity
are promptly addressed, hence contributing to more efficient and effective delivery of
public service.
c. The Procurement Milestones may be laid down in a GANNT chart.
5. Method of Procurement
a. As a general rule, all procurement should be through public bidding. However, the
law recognizes that certain unique circumstances require the use of other methods of
procurement.
b. The selection of the method of procurement is dependent on the presence or absence
of specific conditions that justify the use of a particular method.

25

2. ANNUAL PROCUREMENT PLAN24


Period:

Upon submission of the PPMPs from various end-users in Procuring


Entity

Participants: End-users/PMOs
BAC
BAC Secretariat
Requisites:

PPMPs of units within the Procuring Entity

Purpose:

To consolidate various PPMPs within the Procuring Entity

Tasks:

Consolidation of various PPMPs


Determining crucial procurement
Regular review and update of PPMPs and APP

A. Annual Procurement Plan (APP)


1. The APP is the document that consolidates the various PPMPs submitted by the various
PMOs and end-user units within the Procuring Entity. It reflects the entirety of the
procurement activities that will be undertaken by the Procuring Entity within the calendar
year.
PPMP
End-user A

APP
PPMP

PPMP

End-user B

End-user C

B. Guidelines
In preparing the APP, the BAC shall take into consideration the following factors:

24

LEGAL REFERENCE: Sec. 7, GPRA.

26

1. The APP should include all procurement activities planned for the year.
a. Since the approved APP shall be the basis for the Procuring Entitys procurement,
only projects or procurement included therein shall be undertaken.
2. The APP shall include only those procurements that are considered crucial to the efficient
discharge of governmental functions.
a. A certain procurement is crucial to the efficient discharge of governmental functions
if:
a.1. It is required for the day-to-day operations of the Procuring Entity; or
a.2. It is in pursuit of the principal mandate of the procuring entity concerned.
3. The APP shall include provisions for foreseeable emergencies based on historical
records.
a. The BAC, through the BAC Secretariat, shall include therein a lump sum to cover for
these emergencies or contingencies.
b. Such amount which amount shall not be more than four percent (4%) of the Procuring
Entitys total appropriations for Maintenance, Operating and Other Expenses.
4. Procurement activities should be scheduled in such a way that the conduct of
procurement transaction shall be efficiently managed by BAC and the other offices/units
in the Procuring Entity involved in the procurement.
5. It is important that project implementation timelines are met.
6. Review and updating of the individual PPMPs and the APP shall be done regularly, at
least once every six (6) months or as often as necessary.
a. The review and updating of the PPMPs will be done by the PMOs and the end-user
units.
b. Services of technical experts may be availed of to review the individual PPMPs.
c. The updated PPMPs will then be submitted to the BAC Secretariat for subsequent
inclusion in the updated APP.
7. The APPs of decentralized procuring entities should be submitted to the central office for
information and monitoring purposes.

27

C. Contents of the APP


1. The APP shall contain the following information
a. Name of the project/procurement;
b. PMO or end-user unit;
c. General description of the project/procurement (general description of requirements
and quantities, where applicable);
d. Procurement methods to be adopted, and indicating if the procurement tasks are to be
outsourced as provided in Section 53(e) of the revised IRR;
e. Time schedule for each procurement activity; and,
f. ABC.

28

3. PROCUREMENT STRATEGY
Period:

During consolidation of

Participants: BAC
BAC Secretariat
TWG
Requisites:

APP of the Procuring Entity, or at least submission of PPMPs by endusers

Purpose:

To ensure efficiency and achieving the most favourable terms in the


procurement of the Procuring Entitys requirements

Task:

Determine characteristics of procurement requirements


Determine common requirements which may be bidded together
Adopt procurement strategies

1. The procurement strategy is the approach to be adopted by the BAC in the procurement
of the goods, infrastructure projects and consulting services included in the APP.
2. In the process of consolidating the PPMPs, the BAC should determine the extent of
diversity, quantities, quality, cost, the supply market, and other characteristics of the
procuring entitys requirements for the year.
3. There may be common requirements for the various PPMPs.
a. For example, three (3) projects require the purchase of five (5) units of laptop
computers for each project office, or a total of fifteen (15) laptop computers.
Obviously, it will be more cost effective and efficient if the BAC will procure the
fifteen (15) laptop computers in one bidding exercise and as one bid lot.25
4. The BAC may also have to decide on procurement through bid lots and contract packages
whether or not it is best to bid out a project as a single package, or divide it into several
bid lots (based on independent components, not tantamount to splitting).
5. The BAC, through the help of the TWG and the Secretariat, shall determine the best
options for the Procuring Entity.

25

Example used in DOH Procurement Manual, Vol. 1.

29

III. PROCUREMENT PREPARATIONS


1. PROCUREMENT PLANNING26
Period:

Before undertaking procurement

Participants: End-user
Procurement Management Office (PMO)
Procuring Entity
Technical Working Group
Technical experts/consultants (when necessary)
Requisites:

Before proceeding to this stage, the APP should already be prepared and
the GAA already passed.

Purpose:

To achieve efficiency the procuring entity has to schedule its recruitment


activities in advance, and to ensure that procurement plans are properly
linked to corresponding budgets.

Tasks:

At this stage, the end-user has to prepare the draft terms of reference,
while the procuring entity has to determine the mode of procurement, the
type of consultant to be hired and the approved budget for contract (ABC).

Prepare the draft terms of reference

Determine mode of procurement

Determine type of consultant to be


hired

Determine ABC

A. Terms of Reference (TOR)


26

LEGAL REFERENCE: Sec. 7, GPRA R-IRR.

30

End-user
Procurement Entity

1. The TOR is prepared by the end-user/PMO and duly approved by HOPE or the
authorized approving official.
2. Assistance of external/internal technical experts may be engaged whenever needed in
drafting the TOR.
3. An adequate TOR should provide for the following:
a. Objectives, scope and expected outputs and/or results of the proposed contract;
b. The expected contract duration and/or time frame
c. Obligations, duties and/or functions of the consultant and government counter parts
and staff, including working arrangement between the consultant, its staff and
counterpart staff;
d. The minimum qualifications of consultants, such as track record to be determined by
the Head of the Procuring Entity; and
e. The services, facilities and data, of any, to be provided to the consultants.

B. Mode of Procurement
1. Unless otherwise provided, procurement is to be made through competitive bidding. The
exceptions, or alternative modes, are negotiated and limited source bidding which will be
discussed in greater detail in succeeding sections.

C. Type of Consultant
1. Consultants may either be a natural person or a juridical entity, so long as they meet
qualifications education, training, expertise, capability, and experience, among others
demanded by service to be performed.
2. In keeping with the policy of the GPRA, whenever the services needed are within
expertise and capability of Filipino consultants they should be hired.
3. However, upon the determination of the HOPE that Filipino consultants do not possess
sufficient expertise and capability needed for the project, foreign consultants may be
hired subject to all pertinent Philippine laws and regulations.

D. Approved Budget for Contract (ABC)

31

1. The ABC is the budget for the contract duly approved by the HOPE as provided in the
GAA and/or continuing appropriations. It refers to the proposed budget for the project
approved by the HOPE based on the APP, which is consolidation of various PPMPs.
2. To determine the ABC, the following factors have to be considered
a. Cost or market price of service itself;
b. Cost of money, to account for government agencies usually buying on credit terms;
and
c. Inflationary factor, since planning is done one year ahead of actual procurement date.
3. As a general rule, the ABC should not exceed the appropriation.
a. If various cost components is lower than appropriation, ABC must be equivalent to
total of cost components.
b. If various cost components higher than appropriation, the technical specifications and
computation of the ABC should be reviewed.
4. However, when so demanded by the contingencies, the ABC may be adjusted upward or
downward.
a. In case there is failure of bidding, the BAC must conduct a mandatory review and
evaluation of the ABC, technical specifications, terms, and conditions in the bidding
documents and revise the same based on its findings.
5. The cost of the consultancy shall take into consideration remuneration costs,
reimbursable costs, and a reasonable contingency cost.
Reimbursable
Costs
Remuneration
Costs

Agreed Fixed Rates


Actual Cost

Basic Rates
Billing Factor

Approved
Budget for
Contract

32

Contingency
(5% of contract
max.)

a.

Remuneration costs are costs to be paid to consultants staff/personnel directly


engaged in the consulting services as agreed, and shall cover basic rates of staff
multiplied by the consulting firms billing factor.
Salary history
Basic Rates

Industry rates
Floor

Remuneration Costs
Overhead Cost
Billing Factor/
Multiplier

Social Charges
Management Fee

a.1. Basic rates represent actual salaries received by the consultants professional
staff (certified by sworn statement submitted to the Procuring Entity).
a.1.1. In determining basic salary the following are considered:
-

Salary history,

Industry rates,

A floor of equivalent to two hundred percent (200%) of the equivalent rate


in the procuring entity.

a.1.2. Basic rates of the consultants staff component shall be indicated in the
contract.
a.2. The billing factor/multiplier shall be derived from overhead costs, social costs,
and management fee (supported by audited financial statements from an independent
auditing/accounting firm/entity and certified by the consulting firm).
a.2.1. Overhead costs are the general administrative expense of the firm, aside
from those directly related to the project. These are expressed in percentage of the
total of basic salaries of all personnel of the firm.
a.2.2. Social charges are cost items relative to the welfare and benefit of the
consultants staff in keeping with existing policies of the consultant and pertinent
government regulations. There are also expressed as a percentage of the basic rate
of the consultants staff.
a.2.3. Management fees are remuneration or the professional know-how and
expertise of the consultant. It is fixed as a percentage of the sum of basic salary,
33

overhead costs, and social charges, but not exceeding fifteen percent (15%)
thereof.
a.2.4. The sum of basic salary, overhead and social charges and management fee
represents the billing factor or multiplier.

a.2.5. The normal range of multiplier for technical personnel is from 2.0 to 3.0,
while that for administrative personnel does not exceed 1.8.
b. Reimbursable costs include those expenses associated with the execution of the
services, classified into those based on fixed rates and those based on actual costs.
Housing Allowance

Based on Agreed
Fixed Rates

Per diems
For foreign consultants
International Travel
Domestic Travel

Reimbursable Costs

Domestic Transportation
Communication Expenses

Based on Actual
Cost

Cost of office/other supplies


and services
Cost of field office
Equipment rental
Acquisition of software licenses
Other items

b.1. This includes cost items payable at agreed fixed rates to the staff, including
housing allowance, per diems, and international travel expenses of foreign
consultants.
b.1.1. Housing allowance covers power and water costs for consultants staff. It
should only be given to consultants staff that will be staying at the designated
official station of duty for more than one (1) month, without prejudice to the
34

procuring entitys option to provide for housing facilities at the designated duty
station in lieu of giving the allowance.
b.1.2. Per diems are daily allowances given to consultants staff while on official
trips authorized by the procuring entity or required in the contract.
-

It is for trips (1) outside the base of operation (home office) of consultant staff
or (2) outside the designated official station of duty, except when staying at
the base of operation.

Reckoned from a 24-hour day trip of at least 50 kilometers away from the
station.

Rates vary for short visits and longer stays by location. Stays in cities receive
higher rates compared to municipalities.

b.2. Expenses based on actual cost must be supported with invoices and other
supporting papers. It includes expenses for international travel, domestic travel,
domestic transportation, communication expense, cost of supplies, cost of field office,
equipment rental, acquisition of software licenses, and cost of other items necessary
for the project as certified by the procuring entity.
b.2.1. Cost for international travel covers full fare economy class air
transportation, preferably in a Philippine airline, through most direct and
expeditious air routes. Cost of excess baggage allowed is up to twenty (20)
kilograms for each expatriate staff per trip.
b.2.2. Cost for domestic travel covers full fare economy class air transportation
and/or land transportation through most direct and expeditious routes.
b.2.3. Domestic transportation covers provision of vehicles either through
purchase or rental.
b.2.4. communication costs includes telephone, mobile, two-way radio, telegrams,
internet, parcel, freight, courier, and fax, among others.
c. Contingency costs of not more than five percent (5%) of the amount of the contract
are considered for those items which in the performance of the service may turn out
to be necessary. These costs must be approved by the procuring entity prior to being
incurred, and must be in accordance to the unit rates and costs specified in the
contract and in strict compliance with the needs of the project.
6. In estimating the cost of consulting services, the end-user must conduct a cost research in
the local market focusing on the above cost components and taking into consideration
reasonable inflation rate, especially for contracts lasting for more than one (1) year.

35

II. PREPARATION OF BIDDING DOCUMENTS27


Period:

Bidding documents must be prepared in time for presentation at the preprocurement conference.

Participants: BAC
TWG
BAC Secretariat and/or the procurement office/unit
End-user/PMO
Consultants (hired to prepare the bidding documents)
Purpose:

To furnish prospective bidders with information sufficient for them to


prepare their bids.

Requisites:

Draft TOR
Determined type and method of procurement, and ABC

Tasks:

BAC Secretariat/TWG, with assistance of end-user/PMO prepares bidding


documents in accordance with procurement manuals and standard forms
prescribed by the GPPB.

A. Bidding Documents
1. Bidding documents refer to documents issued by procuring entity as the basis for bids,
furnishing all information necessary for a prospective bidder to prepare a bid for the
consulting services required by the procuring entity.
2. Equal access to information shall be ensured in all stages of the preparation of the
Bidding Documents. However, prior to their official release to prospective bidders no
aspect of the Bidding Documents shall be divulged or released to any prospective bidder
or person having direct or indirect interest in the project to be procured, or to any party,
except those officially authorized in the handling of the documents.

B. Contents of Bidding Documents


Content
1. ABC

27

Description
It is the budget for the contract duly approved by the HOPE as
provided in the GAA and/or continuing appropriations.

2. Request for Expression of


Interest

Serves as the notice to the public and interested parties of the


procurement opportunity.

3. Eligibility Requirements

Requirements that show the status of a bidder as a qualified

LEGAL REFERENCE: Sec. 17, GPRA-IRR.

36

consultant based on its legal, technical and financial competence


to comply with the contract to be bid.

4. Instructions to Bidders

All necessary information that would help consultants

prepare responsive proposals, indicating the evaluation


criteria and factors and their respective weights and the
minimum passing quality score.
5. Terms of Reference (TOR)

It outlines the objectives, scope and expected outputs and/or

results of the proposed contract, among others.


6. Scope of work, where
applicable;
7. Plans/Drawings and
Technical Specifications;

Detailed description of the goods or services deliverable by the


Supplier, Contractor or Consultant, similar to TOR but for
services and infrastructure projects.
Descriptions of what the purchaser requires and what a bidder
must offer.

8. Form of Bid, Price Form,


and List of Goods or Bill of
Quantities;
9. Delivery Time or
Completion Schedule;

Duration of the performance of service required.

10. Form, Amount, and


Validity Period of Bid
Security;

Bid Security Cash, check, bank draft, letter of credit, bank


guarantee, surety bond or a foreign government guarantee that
serves as a guarantee that the successful bidder shall not
default on his offer, and shall enter into contract with the
Procuring Entity and furnish the performance security.

11.Form, Amount, and


Validity of Performance
Security and Warranty; and

A security posted by the winning bidder to guarantee the faithful


performance by the same of its obligations under the contract
prepared in accordance with the bidding documents.
An undertaking by the supplier, manufacturer or distributor to
guarantee that it will correct any manufacturing defects of the
goods procured by the government.

12. Form of Contract and


General and Special
Conditions of Contract

37

C. Issuance of Bidding Documents


1. This preparatory stage requires merely that the bidding documents be prepared or made
ready as they are to be issued in the course of the procurement process.
a. Eligibility documents shall be made available from the time the REI is first advertised
until the deadline for the eligibility check.
b. Bidding Documents shall be made available from the determination of the short list
until the deadline for the submission and receipt of bids.
2. A reasonable fee to cover the cost of preparation and development of bidding documents
may be charged to the bidders. The BAC shall issue such bidding documents upon
payment of such cost to the collecting officer of the procuring entity.
3. Bidding documents are to be posted at the DOH and the PhilGEPS websites from the
time the REI is advertised. Such documents may be downloaded by the prospective
bidders provided that bidders shall pay the issuance fees upon submission of their bids.

38

III. CONDUCT OF PRE-PROCUREMENT CONFERENCE28


Period:

Prior to the advertisement or the issuance of the REI for each procurement
undertaken through a public bidding

Participants: BAC
Secretariat
Representatives of the PMO or end-user unit/s
Members of the TWG/s, including technical experts hired by the procuring
entity who prepared the TOR, bidding documents and the draft
advertisement, and
Technical experts who assisted in the preparation of the TOR and the
bidding documents for the procurement at hand.
Purpose:

To determine the readiness of the procuring entity to procure consulting


services in terms of the legal, technical and financial requirements.

Requisites:

Knowledge of amount to be procured, bidding documents should be


drafted (Cost more than 1M PhP)

Tasks:

BAC, through its Secretariat, shall call for a pre-procurement conference.


BAC/sec calls for conference, conduct of conference.

Bidding Documents

BAC call for preprocurement


conference

Hold Procurement
Conference

A. Pre-procurement Conference
1. A pre-procurement conference is mandatory for procurements of consulting services
costing more than one million pesos (PhP 1,000,000.00). For smaller procurements, the
holding of a pre-procurement conference may not be required.
2. During the procurement conference, participants should:
a. Confirm description and scope of the contract, the ABC, and contract duration;
b. Ensure procurement is in accordance with the project and APP;
c. Determine the readiness for procurement at hand, based on:
c.1. availability or appropriations and programmed budget for contract; and

28

LEGAL REFERENCE: Sec. 20, GPRA R-IRR.

39

c.2. completeness of Bidding Documents and their adherence to relevant general


procurement guidelines
d. Review, modify and agree on the criteria for eligibility screening and short- listing,
detailed bid evaluation and post-qualification;
d.1. determine number of consultants to be short listed
e.

Review and adopt the procurement schedule, including deadlines and timeframes, for
the different activities; and

f.

Reiterate and emphasize the importance of confidentiality, in accordance with


Section 19 of the revised IRR, and the applicable sanctions and penalties, as well as
agree on measures to ensure compliance with the foregoing.

40

II. PROCUREMENT PROCESS OVERVIEW


A. COMPETITIVE BIDDING
STEP 1: Advertise/Post Request for
Expression of Interest

STEP 2: Submission of Eligibility


Requirements

STEP 3: Short List Eligible Consultants

STEP 4: Issue Bidding Documents

STEP 5: Conduct Pre-bid Conference and


Issue Supplemental Bid Bulletins

STEP 6: Receive and Open Technical and


Financial Envelopes

STEP 7: Conduct Bid Evaluation of


Shortlisted Consultants

1. Competitive or public bidding is a method of


procurement that is open to all interested and qualified
parties.

2. Procurement shall be done through competitive


bidding, unless circumstances require the use of
other procurement methods.
3. Competitive bidding involves of the following
steps: advertisement, pre-bid conference, eligibility
screening of prospective bidders, receipt and
opening of bids, evaluation of bids, postqualification, and award of contract.
4. However, procurement for consulting service
entails additional steps such as the short listing of
prospective bidders, to ensure that qualified,
competent, and experienced consultants are hired
for the service needed.
5. The procurement process from opening of bids
up to the award of contract should not exceed three
(3) months, or a shorter period to be determined by
the procuring entity.
6. Should the deadline for a component step/task
fall on a non-working day, legal holiday, or special
non-working holiday, the deadline shall be the next
working day.

STEP 8: Conduct Post-Qualification

STEP 9: Award the Contract and Issue


Notice of Award

STEP 10: Sign and Approve Contract

STEP 11: Issue Notice to Proceed

41

STEP1. ADVERTISE AND/OR POST REQUEST FOR EXPRESSION OF INTEREST29


Period:

After the conduct of pre-procurement conference, when applicable

Participant/s: BAC Secretariat


Requisites:

REI approved by the BAC.

Purpose:

To increase number of prospective bidders and intensify competition for


the procurement project, thereby ensuring the best possible proposals, in
terms of quality and costs.

Tasks:

Posting of the REI in the Procuring Entity's premises, in newspapers of general


circulation, the PhilGEPS and the website of the Procuring Entity.

BAC approved REI

Post REI in premises


(7 days)

Publish REI in
newspaper (1 time)

Post REI in PhilGEPS,


DOH Website,
Office/Unit Website

Except: ABC 1M and


below, or contract period
less than 4mos.

A. Contents of the Request for Expression of Interest (REI)


1. The REI must contain the following30:
a. Name of the contract to be bid a general description and other important or relevant
information;
b. The criteria for eligibility check, short listing of prospective bidders, examination and
evaluation of bids, post-qualification, and award;
c. The date, time and place of:
c.1. the deadline for the submission and receipt of the eligibility requirements,

c.2. the pre-bid conference if any,


c.3. the submission and receipt of bids, and
c.4. the opening of bids;
29
30

LEGAL REFERENCE: Section 1.2.1., GPRA R-IRR.


Sec. 21, GPRA R-IRR.

42

d. ABC to be bid;
e. Source of funding;
f. Period of availability of the Bidding Documents, the place where the Bidding
Documents may be secured, the website where the Bidding Documents may be
downloaded, and, where applicable, the price of the Bidding Documents;
g. Contract duration or delivery schedule;
h. Name, address, telephone number, facsimile number, e-mail and website addresses of
the concerned procuring entity, as well as its designated contact person; and
i. Such other necessary information deemed relevant by the procuring entity.

B. Posting Guidelines
1. The REI shall be posted at any conspicuous place reserved for this purpose in the
premises of the procuring entity concerned for seven (7) calendar days.
a. Such posting shall be certified by the head of the BAC Secretariat of the procuring

entity concerned.
2. Thereafter, the REI may be advertised at least once in one (1) newspaper of general
nationwide circulation which has been regularly published for at least two (2) years
before the date of issue of the advertisement.
a. However, such advertisement in a newspaper of general nationwide circulation shall
not be required for the following contracts:
a.1. those with an approved budget of One Million Pesos (PhP 1,000,000.00) and
below; or
a.2. those whose duration is four (4) months or less for the procurement of consulting
services.
b. Advertisement is likewise not required for alternative methods of procurement.
3. The REI is to be posted continuously in the PhilGEPS website, the website of the
procuring entity concerned, if available, and the website prescribed by the foreign
government/ foreign or international financing institution, if applicable, for seven (7)
calendar days starting on date of advertisement.

43

Place of Posting
Premises of the
Procuring Entity

Duration
Seven (7) calendar days

Newspaper of general
nationwide circulation

One (1) publication

PhilGEPS and Procuring


Entity (DOH) Website

Seven (7) calendar days


from date of
advertisement

No. of Days
Posting at
Premises
Newspaper
advertisement
Posting at
Website

Minimum Periods
1
2
3
4

C. Reservation Clause
1. The REI likewise includes the reservation clause, wherein the procuring entity declares
that it reserves the right to reject any and all bids, declare failure of bidding, or not to
award the contract altogether.31
2. However, abuse in the exercise of power to reject any and all bids by influencing any
member of the BAC or any employee of the procuring entity, or for the purposes of
favouring any bidder, among others shall give rise to criminal liability.32

D. Relevant Jurisprudence
1. J.G. Summit Holdings Inc. v. CA, G.R. No. 124293, January 31, 2005
a. It is a well settled rule that where such reservation (of the governments right to
reject any or all bids or any part thereof or waive any defects contained thereon and
accept an offer most advantageous to the Government) is made in an Invitation to

31
32

Sec. 41, GPRA R-IRR.


Sec. 65.1.c, 65.1.e., GPRA R-IRR.

44

Bid, the highest or lowest bidder, as the case may be, is not entitled to an award as a
matter of right.
b. Even the lowest Bid or any Bid may be rejected or, in the exercise of sound
discretion, the award may be made to another than the lowest bidder.
2. NPC v. Philipp Brothers Oceanic, Inc., G.R. No. 126204 November 20, 2001
a. Where the government reserves its right to reject, bids may be rejected on mere
technicality. The losing bidder cannot complain nor dispute such act unless it is
shown to be unfair or unjust.
b. The government may not be compelled to award a contract nor accept any bid.
3. First United Constructors Corporation v. PPMC, G.R. No. 178799, January 19, 2009
a. The discretion to accept or reject bid and award contracts is vested in the
government agencies entrusted with that function. This discretion is of such wide
latitude that the Courts will not interfere therewith or direct the committee on bids to
do a particular act or to enjoin such act within its prerogatives unless it is apparent
that it is used as a shield to a fraudulent award; or an unfairness or injustice is shown;
or when in the exercise of its authority, it gravely abuses or exceeds its jurisdiction.

E. Practical Considerations
1. The prescribed modes of advertising and posting refer to the bare minimum requirements.
Thus, the Procuring Entity may ensure widespread dissemination, especially when
demanded by the nature of the procurement at hand, by resorting to other available modes
of information dissemination.

45

STEP2. SUBMISSION OF ELIGIBILITY REQUIREMENTS33


Period:

Eligibility envelopes shall be submitted on or before the deadline specified


in the REI.

Participants: BAC
TWG
Secretariat
Prospective bidders
Observers
COA Representative
Requisites:

REI must have already been posted and/or advertised.

Purpose:

To determine the eligibility of prospective bidders for the procurement of


consulting services.

Tasks:

Receive eligibility envelopes and issue corresponding receipt.


Conduct an eligibility check/screening

Post/ Advertise REI

Receive Eligibility
Envelopes

Conduct Eligibility
Check

A. Eligibility Requirements
1. For purposes of determining eligibility and short listing prospective bidders, the
following documents are to be submitted, using standard forms prescribed by the BAC in
the bidding documents.
Eligibility Documents34
Class A Documents

include legal, technical and financial documents

Legal Documents

Registration certificate from SEC, Department of Trade and


Industry for sole proprietorship, or Cooperative Development
Authority for cooperatives, or any proof of such registration as
stated in the Bidding Documents;
Mayors permit issued by the city or municipality where the
principal place of business of the prospective bidder is
located;

Technical documents

33
34

Statement of the prospective bidder of all its on-going and


completed government and private contracts, including

LEGAL REFERENCE: Sec. 24, GPRA R-IRR.


Sec. 24.4 and 24.5, GPRA R-IRR.

46

contracts awarded but not yet started, if any, whether similar


or not similar in nature and complexity to the contract to be
bid, within the relevant period as provided in the Bidding
Documents. The statement shall include all information
required in the PBDs prescribed by the GPPB.
Statement of the consultant specifying its nationality and
confirming that those who will actually perform the service
are registered professionals authorized by the appropriate
regulatory body to practice those professions and allied
professions.
Financial documents

The consultants audited financial statements, showing, among


others, the consultants total and current assets and liabilities,
stamped received by the BIR or its duly accredited and
authorized institutions, for the preceding calendar year which
should not be earlier than two (2) years from the date of bid
submission.
The prospective bidders computation for its Net Financial
Contracting Capacity (NFCC) or a commitment from a
Universal or Commercial Bank to extend a credit line in favor
of the prospective bidder if awarded the contract to be bid
(CLC).

Class B Documents

Valid joint venture agreement, in case a joint venture is


already in existence. In the absence of a JVA, duly notarized
statements from all the potential joint venture partners stating
that they will enter into and abide by the provisions of the
JVA in the instance that the bid is successful, shall be
included in the bid.
-

Failure to enter into a joint venture in the event of a


contract award shall be ground for the forfeiture of the
bid security.

Each partner of the joint venture shall submit the legal


eligibility documents.

The submission of technical and financial documents by


any of the joint venture partners constitutes compliance.

2. The consultant or its duly authorized representative shall certify under oath that each of
the documents submitted in satisfaction of the eligibility requirements is an authentic and
original copy, or a true and faithful reproduction or copy of the original, complete, and
that all statements and information provided therein are true and correct.
a. The BAC may require that the bidders authorized representative should initial every
page of the documents it submits as originals.

47

B. Receipt of Eligibility Documents


1. Prospective bidders must submit their eligibility requirements in a sealed envelope or any
appropriate container to the BAC on or before the deadline provided in the REI.
a. Submissions after the prescribed deadline should not be accepted by the BAC.
2. Upon actual receipt of the envelope, the BAC secretariat must stamp an eligibility
envelope as RECEIVED and also indicate date and time of receipt.
3. The BAC Secretariat must issue in triplicate a pre-numbered receipt, indicating the name
of the prospective bidder and the date and time when the eligibility envelope was
received. One copy shall be attached to the eligibility envelope, one furnished the
prospective bidder, and the original shall be kept as a record.

C. Eligibility Check
1. An eligibility check is a procedure to determine if a prospective bidder is qualified to
participate in the bidding at hand. The BAC shall use non-discretionary pass/fail
criteria, stated in the REI, to determine eligibility of prospective bidders.
2. A prospective bidder shall be eligible to bid for the procurement of consulting services if
it complies with eligibility requirements prescribed within the period stated in the
invitation to bid.
3. Bidders should not be under a declaration of ineligibility for corrupt, fraudulent, collusive
and coercive practices by the government

D. Procedure for Conducting Eligibility Check


1. The BAC shall open in public the submitted eligibility envelopes on the date specified in
the REI.
2. The contents of eligibility envelopes shall be read in public and examined the BAC
shall record presence or absence of eligibility documents from the checklist.
a. An absent, incomplete or insufficient submission shall render a prospective bidder
ineligible to bid for the procurement at hand.
3. Based on their findings, the BAC shall classify prospective bidders as either eligible or
ineligible and promptly inform them thereof.
a. Eligibility envelopes shall be marked as such accordingly. The markings shall be
countersigned by the BAC chairperson or a duly designated authority.
48

b. A pro-forma notice of eligibility or ineligibility shall be duly accomplished by the


BAC secretariat and signed by BAC members present during eligibility check.
c. In case of ineligibility, the notice shall state there reason therefore.
d. Notice shall be received by bidders authorized representative.
4. The BAC shall ask ineligible bidders whether or not they intend to file a request for
reconsideration.
a. If the ineligible bidder expressly waives the right to file a request for reconsideration,
the eligibility envelope should be returned.
a.1. Waiver should be made in writing by the ineligible bidder or by an authorized
representative.
b. If the ineligible bidder expresses intention to file a request for reconsideration, the
BAC shall keep the eligibility envelopes.
b.1. The BAC shall reseal the eligibility envelope and sign it in the presence of all
participants.
b.2. It will then be deposited into a bid box or any such designated secured place or
depository.

Open eligilbility envelopes

Read and examine contents


publicly
Record present/absent documents

Classify bidders: eligible/ ineligible

Mark envelopes accordingly

Issue Notice of Eligibility/


Ineligibility
State reasons for Ineligibility

49

E. Remedies for Ineligible Bidder


1. A written request for reconsideration must be filed with the BAC seven (7) calendar days
from notice of ineligibility.
a. If the prospective bidder was present during the Eligibility Check a verbal notification
suffices to trigger running of the period.
b. If the prospective bidder was absent, the period runs from the day the Notice of
Ineligibility is received.
2. Once it has received the letter-request, the BAC has seven (7) calendar days to resolve
the request for reconsideration.
a. The BAC must hold on to the Eligibility Envelopes of the prospective bidders until it
has resolved the matter.
b.

When necessary, the BAC can request the prospective bidder to clarify its eligibility
documents.

3. If the request for reconsideration is denied, a protest in writing may be filed with the
HOPE within seven (7) calendar days from receipt of the resolution.
a. A protest is made by filing a verified position paper with the HOPE, and paying a
non-refundable protest fee.
a.1. The position paper shall contain the following information:
a.1.1. the name of the bidder;
a.1.2. office address of the bidder;
a.1.3. name of the project or contract;
a.1.4. the implementing agency or procuring entity
a.1.5. brief statement of facts;
a.1.6. the issue to be resolved
a.1.7. other relevant and pertinent information.
a.2. The non-refundable protest fee should at least be one percent (1%) of the ABC.

50

b. The protest has to be resolved by the HOPE within seven (7) calendar days from
receipt thereof.
b.1. HOPE must resolve the issue strictly based on records of the BAC.
b.2. The decision of the HOPE shall be final up to the limit of his contract approving
authority, subject to provisions of existing laws.

Request for
Reconsideration

Applicable Periods
7 calendar days from receipt of notice
of ineligibility

Resolution of Request
for Reconsideration

7 calendar days from receipt of request

Protest to HOPE

7 calendar days from receipt of denial

Resolution of Protest

7 calendar days from receipt of protest

F. Scenarios
1. Even if only one bidder submits an eligibility envelope, the bidding process continues.
a. If the single bidder is declared eligible after passing a shortlisting and its bid is
responsive to the bidding requirements, its bid shall be declared as a Single Rated and
Responsive Bid (SRRB) and considered for contract award.

2. If only one bidder passes the eligibility check, the bidding process continues.
a. If the eligible bidder submits a bid that is found to be responsive to the bidding
requirements, its bid shall be declared as a SRRB and considered for contract award.
3. If questions/doubts have been raised about the eligibility of a prospective bidder
after it has been declared eligible, the Procuring Entity concerned can re-evaluate its
eligibility.
a. The procurement entity reserves the right to review bidders qualifications at any
stage of the procurement process if it has reasonable grounds to believe that a
misrepresentation has been made by the said prospective bidder, or if there has been
changes in the prospective bidders capability to undertake the project from the time
it submitted its eligibility requirements.

51

b. If there be misrepresentation in the eligibility requirements, statement or documents,


or supervening changes in the situation of the any prospective bidder, such shall be
considered ineligible and disqualified from submitting a bid or from being awarded
the contract.
c. A prospective bidder found guilty of presenting false information faces imprisonment
of not less than six (6) years and one (1) day but not more than 15 years.
4.

If no prospective bidder is found to be eligible, the BAC should declare the bidding a
failure.
a. The BAC shall issue a Resolution declaring a failure of bidding.
b. The BAC then reviews the terms and conditions stated in the REI.
b.1. If warranted, it changes any of the terms and conditions, including the
quantities or specifications, provided that the ABC is left unchanged.
b.2. It must, thereafter, conduct a re-bidding, in the process formulating a new
REI and posting and publishing this as required.
b.3. All bidders that have initially responded to the REI in the first bidding shall
be allowed to submit new bids.
b.4. If the original estimate is found to be inadequate on reassessment to meet the
objectives of the project, it may be necessary to reduce the scope of the project.
b.5. Should a second failure of bidding occur and the Procuring Entity finds that
there is a need to evaluate the responsiveness of the ABC, and so decides to revise
the ABC accordingly, the Procuring Entity should conduct another public bidding
with re-advertisement and/or posting.
c. Alternatively, the Procuring Entity may enter into a negotiated procurement with a
legally, technically, and financially capable consultant.
c.1. However, if the Procuring Entity resorts to negotiated procurement, the terms,
conditions, and specifications of the project as well as the ABC must be
maintained.

G. DOH Simplified Supplier Registration System


1. The DOH COBAC established a Simplified Supplier Registration System (SSRS)
through which any prospective bidder registered in the system is issued a SSRS
Certificate. The objective behind the development and maintenance of the registry system
is to facilitate eligibility check and expedite procurement process.
52

2. Registration in the SSRS requires prospective suppliers to submit specified documents


necessary for its participation in the conduct of procurement within the department.
a. These documents include, among others, a duly registered certification from SEC or
DTI for sole proprietorship or CDA for cooperatives, or any proof of such registration
as stated in the Bidding Documents and others, in lieu thereof, a SSRS Certificate is
issued to the registrant supplier which the latter may use in the procurement process.
3. Registered suppliers/contractors/manufacturers/ distributors must constantly renew their
SSRS registration, when applicable, by submitting copies of the recent documents
required to be submitted.
4. The coverage and applicability of the SSRS shall extend to, and mandatorily be
recognized by the Centers for Health Development (CHDs), DOH Hospitals,
Special/Specialty Hospital, Medical Centers, Bureaus and Attached Agencies.
H. Relevant Jurisprudence
1. Agan v. PIATCO, G.R. No. 155001, May 5, 2003
a. The purpose of pre-qualification in any public bidding is to determine, at the earliest
opportunity, the ability of the bidder to undertake the project..
b. Further, the determination of whether or not a bidder is pre-qualified to undertake the
project requires an evaluation of the financial capacity of the said bidder at the time the
bid is submitted based on the required documents presented by the bidder. The PBAC
should not be allowed to speculate on the future financial ability of the bidder to
undertake the project on the basis of documents submitted.
c. The basic rule in public bidding is that bids should be evaluated based on the required
documents submitted before and not after the opening of bids. Otherwise, the foundation
of a fair and competitive public bidding would be defeated. Strict observance of the rules,
regulations, and guidelines of the bidding process is the only safeguard to a fair, honest
and competitive public bidding.

53

STEP3. SHORT LIST ELIGIBLE CONSULTANTS35


Period:

Within twenty (20) calendar days from beginning of the eligibility check
(date stated in the REI).

Participants: BAC
HOPE
Requisites:

Eligibility of consultants should already be determined.


Shortlist criteria already determined and known to bidders (REI)

Purpose:

To determine the most qualified consultants for the project from all those
that submitted eligibility requirements.

Tasks:

Rate eligible consultants based on criteria.


Determine shortlisted consultants
Recommend short listed consultants to HOPE
Approval of shortlist

Eligible
Consultants
determined

Rate
consultants
based on
criteria

Determine
shortlisted
consultants

Recommend
shortlist to
HOPE

HOPE to
approve
shortlist

A. Short Listing
1. The procuring entity shall consider only those consultants whose contracts, as identified
in the eligibility documents submitted for registration, are similar in nature and
complexity to the contract to be bid, based on the REI.
2. A short list of five (5) consultants greatly increases the chances of a consultant and thus
encourages it to put in more time and effort in preparing a good proposal. In the end,
government in general, and the Procuring Entity in particular, receive better proposals to
choose from.
3. The entire process of eligibility check and short listing shall not exceed twenty (20)
calendar days.

B. Criteria for Short listing

35

LEGAL REFERENCE: Sec. 24.5, GPRA R-IRR.

54

1. The BAC shall specify in the REI the set of criteria and rating system for short listing of
consultants to be used for the particular contract to be bid.
2. Among the factors to be considered are:
a. Applicable experience of the consultant and members in case of joint ventures,
considering both the overall experiences of the firm or, in the case of new firms, the
individual experiences of the principal and key staff, including the times when
employed by other consultants;
b. Qualification of personnel who may be assigned to the job vis-- vis extent and
complexity of the undertaking; and
c.

Current workload relative to capacity.

C. Short Listing Procedure


1. The BAC shall rate each eligible consultant based on the short listing criteria (refer to
Section B above).
2. The BAC shall draw up the short list of consultants from those who have been
determined as eligible.
a. The preferred number of consultants is five (5). However, the number of short listed
consultants may vary from three (3) to seven (7) consultants, depending on the
number determined during the pre-procurement conference.
b.

If less than the required number apply for eligibility and short listing, pass the
eligibility check, and/or pass the minimum score required in the short listing, the
BAC shall consider the same.

3. Thereafter, the BAC shall recommend the short list of consultants to the HOPE for
consideration and approval.

55

Rate Eligible Consultants based on Criteria

Draw Short list from Eligible Consultants

Recommend Short List to HOPE

BAC
HOPE

Approve Short list

D. Bidding Failure
1. BAC should declare a bidding failure if no prospective bidder is short listed.
a. The BAC shall issue a Resolution declaring a failure of bidding.
b. The BAC shall conduct a mandatory review and evaluation of the terms, conditions,
and specifications in the Bidding Documents, including its cost estimates to
determine the cause of failure.
c.

Based on its findings, the BAC shall revise the terms, conditions, and specifications,
and if necessary, adjust the ABC, subject to the required approvals, and conduct a rebidding with re-advertisement and/or posting.

d. All bidders have initially responded to the REI and have been declared eligible or
short listed in the previous biddings shall be allowed to submit new bids.
e. The BAC shall observe the same process and set the new periods according to the
same rules followed during the previous bidding.
2. The procuring entity may resort to negotiated procurement in the event of a second
failure of bidding.

E. Relevant Jurisprudence
1. NPC v. Pinatubo Commercial, G.R. No. 176006, March 26, 2010
a. Bidders are subject to eligibility screening. Hence, the Procuring Entity can predisqualify any applicant who did not meet the requirements for pre-qualification.

56

b. Prospective bidders cannot claim any demandable right to take part in bidding if they
fail to meet the criteria.

F. Practical Considerations
1. It should be noted that the law does not prevent the procuring entity to undertake a third
or even fourth bidding and so forth.
2. A second failure of bidding may not result to a negotiated bidding especially if the
procuring entity is more interested in having more participants in the bidding to take
advantage of the variety.
3. Also, further public biddings are preferred over resort to negotiated procurement, which
is more prone to COA audits.
G. GPPB Opinion
1. 2012-01-18, NPM 014-2012 Third Re-bidding
a. Although Section 53.1 of the IRR allows procuring entities to resort to negotiated
procurement after two failed biddings, this is not mandatory. As provided in Section 48.1
of RA 9184 and its IRR, in order to promote economy and efficiency, the procuring
entity may resort to any of the alternative methods of procurement provided in the IRR
subject to the prior approval of the Head of the Procuring Entity (HOPE).
Based on the foregoing, we are of the view that JHMC is not compelled to resort to
negotiated procurement under Section 53.1 in case there has been two failed biddings.
Negotiated Procurement (Two Failed Biddings) is an option, the exercise of which is
merely permissive and discretionary upon the HOPE. thus, the Government Procurement
Policy Board's approval on JHMC's intended third re-bidding of its infrastructure project
is unnecessary and not required under RA 9184 and its IRR.

57

STEP4. ISSUE THE BIDDING DOCUMENTS36


Period:

From determination of the shortlist up to the deadline of submission and


receipt of bids

Participants: BAC/ BAC Secretariat


Requisites:

Approved shortlist of consultants

Purpose:

To provide prospective bidders with detailed information regarding the


procurement.

Tasks:

Receipt of fees for Bidding Documents


Issuance of Bidding Documents

A. Issuance of Bidding Documents


1. The Procuring Entity provides the Prospective Bidders a copy of the bidding documents
so that they can study the requirements and conditions of the procurement system being
adopted in general and the specific procurement being bided.

B. Guidelines for Issuance of Documents


1. To provide prospective bidders ample time to examine the Bidding Documents and to
prepare their respective bids, the concerned BAC shall make the following available:
a. Eligibility documents shall be made available from the time the REI is first
advertised/ posted until the deadline for the eligibility check;
b. Bidding Documents shall be made available from the determination of the short list
until the deadline for the submission and receipt of bids.
2. Bidders may be asked to pay for the Bidding Documents to recover the cost of its
preparation and development. Bidding Documents shall be issued by the BAC upon
payment of the corresponding cost to the such designated officer of the procuring entity.
3. The procuring entity shall also post the Bidding Documents at its website and at the
PhilGEPS website from the time that the REI is advertised and/or posted.
a. Prospective bidders may download the Bidding Documents from any of the said
websites. However, bidders shall pay the fee for the Bidding Documents upon
submission of their Bids.
36

LEGAL REFERENCE: Sec. 17, GPRA R-IRR.

58

STEP5. CONDUCT PRE-BID CONFERENCE


BULLETINS37
Issuance of
Bidding
Documents

Determine Need
for Pre-Bid
Conference
Mandatory/
Discretionary/
Requested

AND

ISSUE SUPPLEMENTAL BID

Conduct Pre-Bid
Conference

Issue Bid
Bulletin/s

Clarify bidding
documents

Post Bid
Bulletin/s
Inform bidders

Part I: Pre-Bid Conference


Period:

(1) The pre-bid conference must be held at least twelve (12) calendar
days before the deadline for the submission and receipt of bids.
(2) The pre-bid conference shall be held at least thirty (30) calendar days
before the deadline for the submission and receipt of bids, if a longer
period for the preparation of bids is necessary.38

Participants: BAC
BAC Secretariat
TWG members
Observers
End-user/PMO
Technical experts (on the consulting services to be procured)
Short listed consultants (may or may not attend the pre-bid conference)
Requisites:

Prepared TOR and other bidding documents


Bidding docs, eligibility documents issued
Shortlisted consultants
Any of the conditions for the conduct of pre-bid conference exist

Purpose:

To clarify or explain requirements, terms, conditions, and specifications


stipulated in the Bidding Documents.

Tasks:

Determine if Pre-Bid Conference should be conducted


Conduct Pre-Bid conference
Discuss/ explain/ clarify biding documents

37

LEGAL REFERENCE: Sec. 22, GPRA R-IRR.


This is the case when by reason of the method, nature, or complexity of the contract to be bid or when
international participation will be more advantageous to the GOP.
38

59

A. Pre-Bid Conference
1. The pre-bid conference is the initial forum where the Procuring Entitys representatives
and the prospective bidders discuss the different aspects of the procurement at hand.
a. The eligibility requirements and the technical and financial components of the
contract to be bid will be discussed in the conference, among other concerns.
2. The BAC shall convene a pre-bid conference to clarify and/or explain any of the
requirements, terms, conditions, and specifications stipulated in the Bidding Documents:
a. At least once for contracts to be bid with an ABC of One Million Pesos (PhP
1,000,000.00) or more;
b. At the discretion of the BAC for contracts to be bid with an ABC of less than One
Million Pesos (PhP 1, 000,000.00);
c. Subject to the approval of the BAC, a pre-bid conference may also be conducted upon
written request of any prospective bidder.
Pre-Bid Conference
Mandatory

Conditions
ABC of at least 1M PhP

Discretionary

ABC of less than 1M PhP

Requested

Approval of the BAC

c.1. Note the difference with Pre-procurement Conference which is required for
procurements which cost more than one million pesos (Php 1,000,000.00)
3. It is important that responsible and knowledgeable officials attend the conference.
a.

The persons who drafted/formulated the TOR for the project should be present.

4. Short listed consultants should be encouraged to send representatives that are legally and
technically knowledgeable about the requirements of the procurement at hand.
a. It is also important that the short listed consultants be given ample time to review the
bidding documents prior to the pre-bid conference.
b. Attendance of the bidders shall not be mandatory.
c. Only those who have purchased the Bidding Documents shall be allowed to
participate in the pre-bid conference and raise or submit written queries or
clarifications.
60

5. The minutes of the pre-bid conference shall be recorded and made available to all
participants not later than three (3) calendar days after the pre-bid conference.

B. Proper Conduct of participants


1. The participants are expected to act in an impartial, courteous and professional manner in
all their dealings and interactions with the bidders during all stages of the procurement.
2. Communications between the parties must, as much as possible, be made in writing,
except during the pre-bid conference when verbal clarifications may be allowed.
a. It should be clear that any statement made at the pre-bid conference would not modify

the terms of the bidding documents, unless such statement is specifically identified in
writing as an amendment of the documents and issued as a supplemental/bid bulletin.

C. Procedure for Pre-Bid Conference


1. How the pre-bid conference is conducted depends on the discretion of the BAC
Chairperson or his/her alternate who shall preside the proceedings.
2. The BAC must initiate discussions on contentious issues, most especially if the
participating prospective bidders have no ready questions.
3. The pre-bid conference shall include, among other things, a presentation by the BAC of
the:
a. eligibility requirements,
b.

technical and financial components of the contract to be bid,

c. the evaluation procedure,


d. evaluation criteria, and
e. possible causes of failure of the bidding.

Part II: Supplemental/Bid Bulletins


Periods:

At least seven (7) calendar days before submission and receipt of bids

Participants: BAC
BAC Secretariat
TWG members
Shortlisted consultants
61

Requisites:

Bidding documents ready


Request for qualification made by the bidder within prescribed period

Purpose:

To respond to queries of bidders or to provide clarifications on the


contents of the bidding documents

Tasks:

Determine if there is request for supplemental/bid bulletin


Determine if there is need to issue (if no requests)
Issue supplemental/bid bulletin
Issue amendments to bidding documents when necessary
Post issuance in PhilGEPS, DOH/Procuring Entity Website
Inform bidders who have submitted bids prior to issuance

A. Supplemental Bid Bulletins


1. Supplemental/Bid Bulletins are documents issued by the BAC, upon its own initiative or
as response to written queries or clarifications of eligible bidders, which seek to clarify,
modify, or interpret provisions of the bidding documents.
2. A supplemental/bid bulletin must contain a brief but comprehensive and accurate
summary of the issue or issues that it wishes to address.
a. If it was an eligible bidder that raised the issue addressed by the bulletin, then it ought
to contain a summary of that bidders request for clarification and/or interpretation,
without identifying the eligible bidder.
3. Bidders who have submitted bids before a supplemental/bid bulletin is issued have to be
informed in writing and allowed to modify or withdraw their respective bids

B. Requested Supplemental/Bid Bulletin


1. Eligible bidders may file requests for clarification/s on any part of the bidding documents
or for an interpretation.
a. Request must be in writing.
b. It must be submitted to the BAC at least ten (10) calendar days before the deadline for
submission and receipt of bids.
2. The BAC shall issue a response by issuing a supplemental/bid bulletin.
a. The supplemental/bid bulletin shall be made available to those who have properly
secured the bidding documents.

62

b. It shall be made available at least seven (7) calendar days before the deadline for the
submission and receipt of bids.
C. Supplemental/Bid Bulletin at Procuring Entitys Initiative
1. The Procuring Entity may, at its own initiative, also issue supplemental/bid bulletins for
purposes of clarifying or modifying any provision of the bidding documents.
a. It should be issued not later than seven (7) calendar days before the deadline for the
submission and receipt of bids.
2. If there is a modification to the bidding documents, the same must be identified as an
amendment.

D. Posting the Supplemental/Bid Bulletin


1. The BAC Secretariat is responsible of posting the supplemental/bid bulletin in the
following:
a. PhilGEPS website; and
b. DOH website/website of the procuring entity concerned, if available.
2. Nonetheless, it is the responsibility of all those who have properly secured the Bidding
Documents to inquire and secure Supplemental/Bid Bulletins that may be issued by the
BAC.
3. Bidders who have submitted bids before the issuance of the Supplemental/Bid Bulletin
must be informed and allowed to modify or withdraw their bids.

E. GPPB Opinion
1. 2013-12-26, NPM 122-2013 Extension of the Bid Closing Time; Late Issuance of
Supplemental/Bid Bulletin
a. If the procuring entity intends to postpone or reschedule the deadline for the
submission and receipt of bids, it may do so by issuing a Supplemental/Bid Bulletin
specifying the revised schedule for the procurement activity. It should be noted,
however, that Section 22.5.2 of the IRR of RA 9184 provides that "Supplemental/Bid
Bulletins may be issued upon the procuring entity's initiative for purposes of
clarifying or modifying any provision of the Bidding Documents at least seven (7)
calendar days before the deadline for the submission and receipt of bids."

63

b. In light of the mandatory directive to issue Supplemental/Bid Bulletin not later than
the period prescribed in Section 22.5 of the IRR, we are of the view that
Supplemental/Bid Bulletins issued by the BAC within seven (7) calendar days from
the deadline of the submission and receipt of bids will be considered invalid and
ineffective in modifying the Bidding Documents. If the BAC decides to carry the
modifications made by an invalid Supplemental/Bid Bulletin in proceeding with the
procurement activity, the BAC may be considered to have failed in following with the
prescribed bidding procedures.

64

STEP6. RECEIVE AND OPEN THE TECHNICAL AND FINANCIAL ENVELOPES


(BIDS)39
Period:

Completed in one (1) calendar day.


On the date, time, and place specified in the REI maximum period of
seventy-five (75) calendar days from the last day of posting of the REI

Participants: BAC
BAC Secretariat
Observers
COA Representative
Short listed Consultants
Requisites:

Approved shortlisted consultants


Pre-Bid Conference, when applicable
Bid Bulletins, when necessary

Purpose:

To receive and check the sufficiency or completeness of the bid to


undertake the services submitted by the interested bidders.

Tasks:

Receive technical and financial envelopes


Open technical envelopes in public

Shortlist, Pre-Bid
Conference, Bid
Bulletins

Submit four
copies of BID

BAC
acknowledge
receipt

1 original, 3 copies
1 bid=2 envelopes

BAC shall open


technical
proposal
f1st envelope

BAC shall check


completeness of
documents
Rate pass/fail,
accordingly

A. Bid
1. A Bid is a signed offer or proposal to undertake a contract submitted by a short listed
consultant in response to, and in consonance with, the requirements stated in the bidding
documents. It is equivalent to and used interchangeably with Proposal and
Tender.40
2. A Bid has two components (1) the Technical Proposal or the Technical Bid, and (2) the
Financial Proposal or the Financial Bid.41
a.

The Technical and Financial Bids must each be contained in separate sealed bid
envelopes

39

LEGAL REFEENCE: Secs. 25 to 31, GPRA R-IRR.


Sec.5.d, GPRA R-IRR.
41
Sec. 25.1, GPRA R-IRR.
40

65

Technical Proposal

Financial Proposal

1. The Technical Proposal should at least


contain the following technical
information/documents:

1. The Financial Proposal shall contain the


following financial information/documents,
at the minimum:

a. Bid security in the prescribed form,


amount and validity period;

a. Remuneration cost, indicating the basic


salary, overhead cost, social charges,
management fee and billing rate;

b. Organizational chart for the contract to


be bid;
c.

List of completed and on-going


projects;

d.

Approach, work plan, and schedule42;

e.

List of key personnel to be assigned to


the contract to be bid, with their
complete qualification and experience
data; and

f.

b.

Reimbursable cost; and

c. Other items as may be required in the


bidding documents.
1. The financial proposal should clearly
estimate the value added tax, income tax,
local taxes, duties, fees, levies and other
charges, as applicable.
2. In hiring individual consultant, the
acceptability of the ABC may just be
confirmed during the negotiation process
or reduced based on experience and salary
history of the consultant.

Sworn statement by the prospective


bidder or its duly authorized
representative in GPPB prescribed by
form:

3. Under the PBDs 3rd Edition, the Financial


Proposal requires completion of six (6)
forms, particularly, FPF 1 to 6.

f.1. It is not blacklisted or barred


from bidding;

a. FPF 1. Financial Proposal Submission


Form, constitutes the cover letter of the
Financial Proposal,

f.2. Each of the documents submitted


as bidding requirements is an authentic
copy of the original, complete, and all
statements therein are true and correct;

b. FPF 2. Summary of Costs,


f.3. It is authorizing the HOPE or his
duly authorized representative/s to
verify all the documents submitted;

c. FPF 3. Breakdown of Price per


Activity,
d. FPF 4. Breakdown of Remuneration
per Activity,

f.4. The signatory is the duly


authorized and designated
representative of the prospective
bidder, and granted full power and
authority, with the duly notarized
Secretarys Certificate;

e. FPF 5. Reimbursable per Activity, and


f.

42

FPF 6. Miscellaneous Expenses, relate


to the costs of consulting services
under two distinct categories, namely:

However, for architectural design, submission of architectural plans and designs shall not be required during the
consultants selection process;

66

f.5. It complies with the disclosure


provision under Section 47 of the Act
in relation to other provisions of R.A.
3019;

(a) Remuneration; and (b)


Reimbursable Expenditures.

f.6. It complies with the responsibilities


of a prospective bidder provided in the
PBDs; and
f.7. It complies with existing labor
laws and standards .

B. Bid Security
1. A bid security is a guarantee that the successful bidder shall:
a. Not default on its offer, and
b. Enter into contract with the procuring entity within ten (10) calendar days, or less as
indicated in the instructions to bidders, from receipt of the Notice of Award, and
furnish the performance security except when a longer period is allowed.
2. If a bidder does not submit a bid security, its bid will be rejected. Failure to enclose the
required bid security in the form and amount prescribed herein shall automatically
disqualify the bid concerned.
3. A bid security must be submitted with every bid. It must be operative on the date of bid
opening, and payable to the procuring entity.
4. The bid security shall be denominated in Philippine currency and posted in favor of the
procuring entity.

C. Submission of Bids
1. The BAC shall require one (1) original and at least three (3) duplicate copies of the Bid
Documents required under the First and Second Envelopes, respectively.
2. The original copy will be the one initialled by the BAC members or their authorized
representatives and will be kept by the BAC Secretariat for check and balance purposes
while the duplicate copies will be the ones used during Bid Evaluation.
3. Bidders shall submit their bids through their duly authorized representative using the
forms specified in the Bidding Documents in two (2) separate sealed bid envelopes, and
which shall be submitted simultaneously.
67

a. The first shall contain the technical component of the bid and the second shall contain
the financial component of the bid.
4. As with eligibility envelopes,
a. the BAC Secretariat, upon receipt of a bid envelope, must stamp it as RECEIVED
and have the stamp countersigned by an authorized representative.
b. It then must accomplish in triplicate a pre-numbered receipt indicating the name of
the prospective bidder and the date and time when the bid envelope was received.
c. It then attaches one triplicate copy of the receipt on the bid envelope, gives the other
triplicate copy to the prospective bidder, and keeps the original copy for records
purposes.

D. Procedures for receipt, opening and preliminary examination of bids


1. Bidders shall submit their bids through their duly authorized representative using the
forms specified in the Bidding Documents in two (2) separate sealed bid envelopes, and
which shall be submitted simultaneously.
a. The first shall contain the technical component of the bid and the second shall contain
the financial component of the bid.
2. The BAC shall open the bids at the time, date, and place specified in the Bidding
Documents.
a. The bidders or their duly authorized representatives may attend the opening of bids.
b. The BAC shall adopt a procedure for ensuring the integrity, security, and
confidentiality of all submitted bids.
c. The minutes of the bid opening shall be made available to the public upon written
request and payment of a specified fee to recover cost of materials.
3. The BAC shall open the first bid envelopes (technical proposal) of prospective bidders in
public to determine each bidders compliance with the documents required to be
submitted.
a. For this purpose, the BAC shall check the submitted documents of each bidder
against a checklist of required documents to ascertain if they are all present, using a
non-discretionary pass/fail criterion, as stated in the Instructions to Bidders.

68

b. If a bidder submits the required document, it shall be rated passed for that particular
requirement.
c. Bids that fail to include any requirement or are incomplete or patently insufficient
shall be considered as failed. Otherwise, the BAC shall rate the said first bid
envelope as passed.
Receive bids in 2 envelopes (technical
and financial proposals)
Open 1st envelope
Check submitted documents against
checklist
Rate as passed/failed depending on
completeness of documents

E. Scenarios
1. Even if only one short listed consultant submits a bid envelope, the bidding process
continues. If its bid is found to be responsive to the bidding requirements, its bid will be
declared as a SRRB and considered for contract award.
2. Before the deadline for submission and receipt of bids, a short listed consultant may
modify its bid.
a. If such a consultant modifies its bid, it shall not be allowed to retrieve its original bid,
but shall only be allowed to send another bid equally sealed, properly identified,
linked or related to its original bid and marked as a MODIFICATION of the
original, and stamped RECEIVED by the BAC.
b. Bid modifications received after the applicable deadline will not be considered and
must be returned to the consultant unopened.
c. Any discount should form part of the bid submission in the financial envelope.
3. A short listed consultant may, through a letter, withdraw its bid before the deadline for
the receipt of bids.
a. A short listed consultant that withdraws its bid prior to the deadline for submission of
bids, for a justifiable cause, does not forfeit its bid security.

69

b. Withdrawal of bids after the applicable deadline must be subject to appropriate


sanctions as prescribed.
b.1. If a short listed consultant withdraws its bid after the deadline for the submission
of bids, its bid security shall be forfeited.
c. A consultant that withdraws its bid shall not be permitted to submit another bid,
directly or indirectly, for the same contract
d. Moreover, a consultant that withdraws its bid without any justifiable cause shall be
subject to the administrative sanctions.
e. A short listed consultant may also express its intention not to participate in the
bidding through a letter which should reach and be stamped RECEIVED by the
BAC before the deadline for the receipt of bids.
4. If no short listed bidder submits a bid, the BAC should declare the bidding a failure.
5. If no short listed consultant passes the preliminary examination of bids, the BAC
should declare the bidding a failure (see previous discussion).
Bidding Scenarios
Only one shortlisted consultant
submits bid
Bidding proceeds
Bid Modification

Allowed: before deadline

Withdrawal of bid

No forfeiture of security: before


deadline

No shortlisted bidder
submits a bid
BIDDING FAILURE

No shortlisted consultant passes


examination of bids

F. Validity of Bids and Bid Security


1. Bids and bid securities must be valid for a reasonable period, as determined by the HOPE.
The period must be indicated in the bidding documents, but in no case exceed one
hundred twenty (120) calendar days from the opening of bids.

70

2. To extend the validity of the bids and bid securities, the procuring entity concerned shall
request in writing all those who submitted bids for such extension before the expiration
thereof. Bidders may refuse to grant such extension without forfeiting their bid security.

I. Return and Forfeiture of Bid Security


1. Bid securities shall be returned only after the bidder with the HRRB has signed the
contract and furnished the performance security, except to those declared by the BAC as
failed or post-disqualified, upon submission of a written waiver of their right to file a
request for reconsideration and/or protest.
a.

In no case shall bid security be returned later than the expiration of the bid validity
period indicated in the Bidding Documents, unless it has been extended.

2. A bidders bid security may be forfeited when:


a. The bidder withdraws its bid beyond the deadline;
b. The bidder does not accept correction of arithmetical errors;
c. The bidder being considered for award does not accept the award or does not sign the
contract within the period prescribed in the bidding documents;
d. The bidder being post-qualified did not provide the BAC the required clarifications;
or
e. The bidder is proven to commit any of the acts under Sections 65 and 69 of the
revised IRR of the GPRA.43

43

Sec. 65 Offenses and Penalties; Sec. 69 Imposition of Administrative Penalties, GPRA R-IRR.

71

STEP7. CONDUCT BID EVALUATION OF THE SHORTLISTED CONSULTANTS44


Period:

Completed in not more than twenty-one (21) calendar days after the
deadline for receipt of proposals.

Participants: BAC
TWG
BAC Secretariat
Observers
COA Representative
Requisites:

Opening of the first envelope (technical proposal)


Determination of evaluation method to be used

Purpose:

To determine the Highest Rated Bid

Tasks:

Evaluate bids
Recommend HRB to HOPE for approval
Negotiate with approved HRB

Open
envelopes

Recommend
HRB to
HOPE

Evaluate
Bids

Negotiate
with HRB

A. Modes of Evaluation
The BAC shall thoroughly evaluate the bids using either Quality-Based Evaluation (QBE) or
Quality-Cost-Based Evaluation (QCBE).
1. QBE considers only the Technical Proposals in the ranking of consultants. QCBE, on the
other hand, considers both the Technical and Financial Proposals in the ranking of
consultants.
a. QBE must be applied for:
a.1. Complex or highly specialized assignments for which it is difficult to precisely
define the TOR and the required inputs from the consultants; and
a.2. Where the assignment can be carried out in substantially different ways, such that
the proposals are not comparable.
b. In other cases, the QCBE procedure shall apply.
44

Sec. 22, GPRA R-IRR.

72

B. General Guidelines on the Evaluation of Technical Proposal

Quality of
Personnel

Experience/
Capability

Plan/
Methodology

CRITERIA FOR
TECHNICAL
PROPOSAL

1. The technical proposals of consultants shall be evaluated based on the following criteria
and using the corresponding numerical weights indicated in the Bidding Documents:
a. Quality of personnel to be assigned to the project which covers suitability of key
staff to perform the duties of the particular assignments and general qualifications
and competence including education and training of the key staff;
b. Experience and capability of the consultant which include records of previous
engagement and quality of performance in similar and in other projects; relationship
with previous and current clients; and, overall work commitments, geographical
distribution of current/impending projects and attention to be given by the
consultant. The experience of the consultant to the project shall be gauged by
considering both the overall experiences of the firm and the individual experiences
of the principal and key staff including the times when employed by other
consultants; and
c. Plan of approach and methodology with emphasis on the clarity, feasibility,
innovativeness and comprehensiveness of the plan approach, and the quality of
interpretation of project problems, risks, and suggested solutions.
2. For complex or unique undertakings45 participating short listed consultants may be
required, at the option of the agency concerned, to make an oral presentation to be
presented by each consultant, or its nominated Project Manager or head, in case of firms,
within fifteen (15) calendar days after the deadline for submission of technical proposals.
3. To eliminate bias in evaluating the technical proposals, it is recommended that the
highest and lowest scores for each consultant for each criterion shall not be considered in
determining the average scores of the consultants, except when the evaluation is
conducted in a collegial manner.

45

Those involving new concepts/technology or financial advisory services

73

4. All participating short listed consultants shall be furnished the results (ranking and total
scores only) of the evaluation after the HOPEs approval of the ranking.
5. The results shall also be posted in the PhilGEPS and the website of the procuring entity,
whenever available, for a period of not less than seven (7) calendar days.

C. Quality-Based Evaluation Procedure


1. A two-stage procedure shall be adopted whereby each consultant shall be required to
submit his technical and financial proposals simultaneously in separate sealed envelopes.
2. After receipt of bids, the technical proposals shall first be opened and evaluated.
a. The BAC shall rank the consultants in descending order based on the numerical
ratings of their technical proposals and identify the Highest Rated Bid (HRB).
However, HRB should pass the minimum score indicated in the Bidding Documents.
2. The HOPE shall approve or disapprove the recommendations of the BAC within two (2)
calendar days after receipt of the results of the evaluation from the BAC.
3. After approval by the HOPE of the HRB, its financial proposal shall then be opened.
4. The BAC shall, within three (3) calendar days, notify and invite the consultant with the
HRB for the opening of financial proposal for the purpose of conducting negotiations
with the said consultant.
a. In the letter of notification, the BAC shall inform the consultant of the issues in the
technical proposal the BAC may wish to clarify during negotiations.
5. The amount indicated in the financial envelope shall be made as the basis for
negotiations and the total contract amount shall not exceed the amount indicated in the
envelope and the approved budget for the contract as stated in the Bidding Documents.

74

Open 1st Envelope


Rank technical proposals
Recommend HRB to HOPE
Open 2nd envelope of approved HRB
Proceed to Negotiations w/ HRB

D. Quality-Cost Based Evaluation Procedure


1. The technical proposal together with the financial proposal shall be considered in the
evaluation of consultants. The technical proposals shall be evaluated first using the
general criteria. The financial proposals of the consultants who meet the minimum
technical score shall then be opened.
2. The financial and technical proposals shall be given corresponding weights
a. The financial proposal given a minimum weight of fifteen percent (15%) up to a
maximum of forty percent (40%).
b. The weight of the technical criteria shall be adjusted accordingly such that their total
weight in percent together with the weight given to the financial proposal shall add to
one hundred percent (100%).
c. The exact weights shall be approved by the HOPE upon the recommendation of the
BAC and indicated in the Bidding Documents.
3. The BAC shall rank the consultants in descending order based on the combined
numerical ratings of their technical and financial proposals and identify the HRB.
4. The BAC shall compute the ratings of each Financial Proposal in the following manner:
a. The consultant with the lowest price gets 100 points.
b. The scores of the other consultants will be computed using the formula:
Sf = 100 x Fl/F
75

Where:
Sf = financial score
Fl = lowest Financial Proposal
F = Financial Proposal under consideration.
5. The BAC should multiply the average score of each qualified consultants Technical
Proposal with the percentage value allowed as weight for Technical Proposals.
6. Thereafter, it shall also multiply the rate earned by each consultants Financial Proposal
with the percentage value allowed as weight for Financial Proposals.
7. It then adds the resulting products of both operations for each consultant. The sum
becomes the total score for the consultant.
The formula is as follows:
S = St x T% + Sf x F%
Where:
S = Total Score
St = Technical Score
Sf = Financial Score
T = weight given to the Technical Proposal
F = weight given to the Financial Proposal
8. The BAC ranks the consultants in descending order, with the consultant obtaining the
highest total score being declared as the bidder with the HRB.
9. The BAC submits the results of its evaluation to the HOPE, identifying the consultant
with the HRB, and recommending that consultant with the HRB be authorized to
negotiate.
10. The HOPE shall approve or disapprove the recommendations of the BAC within two (2)
calendar days after receipt of the results of the evaluation from the BAC.
11. After approval by the HOPE of the HRB, the BAC shall, within three (3) calendar days,
notify and invite the consultant with the HRB for negotiation.

76

Open 1st envelope, rank technical


proposals
Open 2nd envelopes of those who
meet minimum technical score
Compute scores and rank
consultants

Recommend HRB to HOPE

Proceed to Negotiations w/ HRB

E. Ways of Rating Bids


1. Whatever evaluation method is applied, bids are rated numerically. This can be done in
either of two ways: individual or collegial rating.
2. Individual Evaluation Process
a. In the individual rating process, each BAC member participating in the evaluation
assigns numerical rates to a proposal, these rates range from 1 to 100, with 100 as the
highest value. The rates are tabulated, and then the highest and lowest rates are
disregarded.
b. The latter step is done to remove the possibility of one BAC member unduly
influencing the results of the evaluation. The average of all remaining rates is then
calculated.
3. Collegial Evaluation Process
a. Under the Collegial Evaluation process, the BAC members evaluate the proposals,
deciding as a group. The rate obtained by a proposal is the consensus of the BAC
members involved in the evaluation.

F. Negotiation

77

1. Negotiations shall cover the following:


a. Discussion and clarification of the TOR and Scope of Services;
b. Discussion and finalization of the methodology and work program proposed by the
consultant;
c. Consideration of appropriateness of qualifications and pertinent compensation,
number of man-months and the personnel to be assigned to the job, taking note of
over-qualified personnel to be commensurate with the compensation of personnel
with the appropriate qualifications, number of man-months and schedule of activities
(manning schedule);
d. Discussion on the services, facilities and data, if any, to be provided by procuring
entity concerned;
e. Discussion on the financial proposal submitted by the consultant; and
f. Provisions of the contract.
2. Except for meritorious reasons, negotiations with any one of the consultants shall be
completed within ten (10) calendar days.46

G. Posting of Results
1. All participating short listed consultants shall be furnished the results (ranking and total
scores only) of the evaluation after the approval by the HOPE of the ranking.
2. Results shall also be posted in the PhilGEPS and the website of the procuring entity,
whenever available, for a period of not less than seven (7) calendar days.47

H. Replacement of Key Personnel


1. There should be no replacement of key personnel before the awarding of contract, except
for justifiable reason, such as, illness, death, or resignation provided it is duly supported
by relevant certificates, or any delay caused by the procuring entity.
2. The procuring entity shall immediately consider negotiation with the next ranked
consultant if unjustifiable replacement of personnel by the first ranked firm is made.

46

Sec. 33.2.5, GPRA R-IRR.


Sec. 33.2.4, GPRA R-IRR.

4747

78

3. Once the contract has been awarded, no replacement shall be allowed until after fifty
percent (50%) of the personnels man-months have been served, except for justifiable
reasons, subject to appropriate sanctions as prescribed in the PBDs.48

I. Failure of Bidding
1. In cases when no bid passes the minimum technical rating for QCBE, the BAC should
declare the bidding a failure.
a. In such a case, the BAC shall issue a Resolution declaring a failure of bidding.
b. To determine the reason for the failed bidding, the BAC shall conduct a mandatory
review and evaluation of the terms, conditions, and specifications in the Bidding
Documents, including its cost estimates.49
c. Based on findings, BAC shall revise the terms, conditions, and specifications, and if
necessary, adjust the ABC, subject to the required approvals, and conduct a rebidding with re-advertisement and/or posting.50
d. All bidders who have initially responded to the REI and have been declared eligible
or short listed in the previous biddings shall be allowed to submit new bids.
e. The BAC shall observe the same process and set the new periods according to the
same rules followed during the previous bidding.51
2. Should there occur a second failure of bidding, the procuring entity may resort to
negotiated procurement, as provided for

48

Sec. 33.3, GPRA R-IRR.


Sec.35.2, GPRA R-IRR.
50
Sec.35.3, GPRA R-IRR.
51
Sec. 35.4, GPRA R-IRR.
49

79

STEP 8. CONDUCT POST-QUALIFICATION52


Period:

Completed in not more than seven (7) calendar days from the
determination of the HRB.
In exceptional cases, period may be extended by the HOPE, but in no case
exceed thirty (30) calendar days

Participants: BAC
TWG
BAC Secretariat
Consultants (ranked starting from bidder with the HRB)
Requisites:

Bids evaluated and ranked accordingly


HRB already determined

Purpose:

To determine whether or not the consultant with the HRB is responsive to


all the requirements and conditions for eligibility and the bidding for the
contract, as specified in the bidding documents

Tasks:

Require HRB to submit additional requirements


Conduct Post-qualification (check)
Prepare Post-Qualification Report
Declare HRRB and send notification

A. Post-qualification
1. In post-qualification the validity of eligibility documents are ascertained.
2. This is important because the eligibility check is simply concerned with the completeness
of documents submitted, and does not involve ascertaining the validity and genuineness
of such eligibility documents, or verifying claims made by the bidders in their respective
proposals.

B. Criteria for Passing Post-qualification


1. The post-qualification shall verify, validate, and ascertain all statements made and
documents submitted by the bidder with the HRB, using non-discretionary criteria, as
stated in the Bidding Documents.
2. These criteria shall consider, but shall not be limited to, the following:

52

LEGAL REFERENCE: Sec. 34, GPRA R-IRR.

80

Criteria for Post-Qualification


a. Legal Requirements

To verify, validate, and ascertain licenses, certificates, permits, and


agreements submitted by the bidder, and the fact that it is not included
in any blacklist.
The GPPB shall maintain a consolidated file of all blacklisted
suppliers, contractors, and consultants.

b. Technical Requirements

To determine compliance of the consulting services offered with the


requirements specified in the Bidding Documents, including, where
applicable:
a. Verification and validation of the bidders stated competence and
experience, and the competence and experience of the bidders key
personnel to be assigned to the project, for the procurement of and
consulting services;
b. Ascertainment of the sufficiency of the bid security as to type,
amount, form and wording, and validity period.

c. Financial Requirements

To verify, validate and ascertain the bid price proposal of the bidder
and, whenever applicable, the required CLC in the amount specified
and over the period stipulated in the Bidding Documents, or the
bidders NFCC to ensure that the bidder can sustain the operating cash
flow of the transaction/

C. Additional Documentary Requirements


1. Within three (3) calendar days from receipt by the bidder of the notice from the BAC that
the bidder has the HRB, the bidder shall submit the following documentary requirements
to the BAC:
a. Tax clearance;
b. Latest income and business tax returns;
c. Certificate of PhilGEPS Registration; and
d. Other appropriate licenses and permits required by law and stated in the Bidding
Documents.
2. Failure to promptly submit any of the above requirements or any finding against the
veracity of those submitted shall be ground for the forfeiture of the bid security and
disqualify the bidder for award.
81

D. Post-Qualification Procedure
1. The BAC, through the Secretariat, shall notify the consultant with the HRB to submit
additional documentary requirements.
a. Non-compliance of the consultant with the HRB shall be ground for the forfeiture of
the bid security tendered and the cause for disqualification.
2. The BAC/TWG shall ascertain the genuineness, validity and accuracy of the legal,
technical and financial documents submitted by the bidder using the criteria described
above.
a. TWG may make inquiries with appropriate government agencies and examine the
original documents kept in the bidders place of business.
b. The use of other means for verification and validation of such documents may be
resorted to by the TWG, such as the Internet and other research methods that yield the
same results.
3. BAC/TWG inquires about the bidders performance in relation with other
contracts/transactions mentioned in its statement of on-going, completed or awarded
contracts.
4. If the post-qualification is conducted by the TWG, they shall prepare a Post-qualification
Report to be submitted to the BAC.
a. The Report shall contain, among others, the activities undertaken with regard to the
Post-qualification process, including feedback from inquiries conducted.
5. The BAC shall review the Post-qualification Report submitted by the TWG.
6. The BAC shall determine whether the bidder with the HRB passes all the criteria for
post-qualification.
7. The BAC shall declare the HRB that passes the post-qualification as the Highest Rated
Responsive Bid (HRRB).
8. After the BAC has determined the HRRB, the Secretariat, with the assistance of the
TWG, if necessary, shall prepare the BAC Resolution declaring the HRRB and the
corresponding Notice to the said bidder informing it that it passed the post-qualification.

82

Send request to HRB for additional


requirements
Verify documents and check past
performance
Prepare Post-qualification report

Declare HRRB

Notify HRRB of post-qualification

E. Disqualification of Consultants
1. The following consultants are disqualified from participating in the procurement process:
a. A bidder that has been blacklisted by any government agency or instrumentality.53
b. Bidder or its employees is related within the third civil degree of consanguinity or
affinity to the HOPE or any of officials or employees of the procuring entity with
direct access to information that may be substantially affect the result of the
bidding.54
c. A bidder is found to have committed an act that constitutes fraud or misrepresentation
or to have colluded with others for the purpose of influencing the outcome of the
bidding.55

F. Scenarios
1. If BAC determines that the bidder with the HRB fails the criteria for postqualification, it shall immediately notify the said bidder in writing of its postdisqualification and the grounds for it.56
53

If participating in an on-going bidding, it will be disqualified by the BAC from further participating in the process.
Sec. 47, GPRA R-IRR.
55
Upon conviction, it will suffer the penalty of imprisonment of not less than six (6) and one (1) day and not more
than fifteen (15) years (Section 65.2 of the revised IRR), and likewise suffer the administrative penalties of
suspension from participation in government procurement for the first offense, and suspension for two years on the
second offense (Section 69.1 of the revised IRR). In addition to the penalty of suspension, the bid security or the
performance security posted by the concerned bidder or prospective bidder shall also be forfeited (Section 69.2 of
the revised IRR).
54

83

a. Immediately after the BAC has notified the first bidder of its post-disqualification,
even pending its motion for reconsideration, the BAC shall initiate and complete the
same post-qualification of bidder with the second HRB.
b. If the bidder with second HRB passes the post-qualification, and request for
reconsideration of the first bidder has been denied, the second bidder shall be postqualified and declared as the bidder with the HRRB.
c. If the second bidder, however, fails the post-qualification, the procedure for postqualification shall be repeated for the bidder with the next HRB, and so on until the
HRRB is determined for award.
2. If no bidder passes post-qualification, the BAC should declare the bidding a failure.
a. BAC shall issue a Resolution declaring a failure of bidding.
b.

Thereafter, BAC shall conduct a mandatory review and evaluation of the terms,
conditions, and specifications in the Bidding Documents, including its cost estimates

c. Based on its findings, BAC shall revise the terms, conditions, and specifications, and
if necessary, adjust the ABC, subject to the required approvals, and conduct a rebidding with re-advertisement and/or posting.
d.

All bidders who have initially responded to the REI and have been declared eligible
or short listed in the previous biddings shall be allowed to submit new bids.

e.

The BAC shall observe the same process and set the new periods according to the
same rules followed during the previous bidding.

f. Should there occur a second failure of bidding, the procuring entity may resort to
negotiated procurement.
Scenarios
HRB fails criteria for post
Post-qualification done on
qualification
2nd HRB
No bidder post-qualifies

BIDDING FAILURE

G. GPPB Opinion
1. 2013-12-26, NPM 114-2013 Conduct of Post-Qualification

56

Section 34.5, GPRA R-IRR.

84

a. First, the adoption of an internal procedure on the manner of conducting postqualification is well within the discretion and accountability of the procuring entity to
undertake, and does not need the clearance or authority from the Government
Procurement Policy Board (GPPB) as long as it does not run counter to the provisions
of RA 9184 and its IRR.
b. Post-qualification should be conducted regardless of the extent of the procuring
entitys experience in contracting with any supplier. However, it is worth noting that
the manner of verifying, validating, and ascertaining all statements made and
documents submitted by the bidder with the Lowest Calculated Bid is not prescribed
in detail in RA 9184 and its IRR. Thus, the procuring entity may adopt internal
procedures on how it will conduct the post-qualification in a manner that it deems
effective in establishing the responsiveness of the bidder with the requirements, and
at the same time, reliable in impressing upon the procuring entity the confidence of
and certainty in declaring the bidder as having submitted the Lowest Calculated
Responsive Bid.

2.

2013-12-26, NPM

117-2013 Post-Qualification Team

a. Neither Republic Act No. (RA) RA 9184 nor its revised Implementing Rules and
Regulations (IRR) provides for the establishment of a post-qualification team that is
separate and distinct from the BAC, since the responsibility and authority of
conducting the post-qualification is categorically delegated to the BAC under Section
12.1 of the IRR of RA 9184. Differently stated, the post-qualification team shall be
the BAC, which can be assisted by the Technical Working Group, and shall be
responsible in determining the compliance of the bidder with the Lowest Calculated
Bid with all the requirements and conditions specified in the Bidding Documents.

85

STEP9. AWARD THE CONTRACT AND ISSUE THE NOTICE OF AWARD57


Period:

Recommendation for award should be approved within seven (7) days


seven (7) calendar days from the date of receipt, and thereafter
immediately issue NOA.
Contract award shall be made within the bid validity period

Participants: HOPE
BAC
Procurement Unit/Office
BAC Secretariat
Consultant who submitted the HRRB/SRRB
Observers
COA Representative.
Requisites:

Post-qualified HRB has been declared HRRB/SRRB

Purpose:

To finally decide on awarding the contract to the most qualified bidder,


based on the prescribed criteria and procurement rules, and inform bidder
of such fact

Task:

Issue resolution to recommend award of contract


Approve/disapprove of contract award
Determine compliance with additional requirements
Contract signing

Post-qualified
HRB declared as
HRRB

BAC
recommendi
award of
contract

Approval of
contract award

Compliance with
requirements

Contract signing

A. Award of Contract
3. The award of contract shall be made to the consultant with the HRRB/SRRB at its submitted
bid price or its calculated bid price, whichever is lower.
a. In the case of QBE, the award shall be based on the negotiated price or the submitted
price, whichever is lower.
b. In the case of an SRRB, the bidder with the SRRB shall be awarded the contract after the
post-qualification process has been completed.

57

Sec. 37, GPRA R-IRR.

86

4. The following documents shall form part of the contract:


a. Contract Agreement;
b. Bidding Documents;
c. Winning bidders bid, including the Eligibility requirements, Technical and Financial
Proposals, and all other documents/statements submitted;
d. Performance Security;
e.

Credit line, if applicable;

f. Notice of Award (NOA) of Contract; and


g. Other contract documents that may be required by existing laws and/or the procuring
entity concerned in n the Bidding Documents.

B. Procedure for Award of Contract


1. The BAC shall recommend to the HOPE the award of contract to the bidder with the HRRB
or the SRRB after the post-qualification process has been completed.
a. To facilitate the approval of the award, the BAC shall submit the following supporting
documents to the HOPE:
a.1. Resolution of the BAC recommending award;
a.2. Abstract of Bids;
a.3. Duly approved program of work or delivery schedule, and Cost Estimates;
a.4. Document issued by appropriate entity authorizing the procuring entity to incur
obligations for a specified amount; and
a.5. Other pertinent documents required by existing laws, rules, and/or the procuring
entity concerned.
2. Action by the HOPE on the BAC recommendation:
a. In case of approval, the HOPE shall immediately issue the NOA to the bidder with the
HRRB.

87

b. In the event the HOPE shall disapprove such recommendation, such disapproval shall be
based only on valid, reasonable, and justifiable grounds to be expressed in writing, copy
furnished the BAC.
3. The BAC, through the Secretariat, shall post, within three (3) calendar days from its issuance,
the NOA in the PhilGEPS, the website of the procuring entity, if any, and any conspicuous
place in the premises of the procuring entity.
4. The procuring entity shall enter into contract with the winning bidder within the same ten
(10) calendar days from receipt by the winning bidder of the NOA, provided that all the
documentary requirements are complied with.
a. Contract award shall be made within the bid validity period.
b. The contract shall be subject to the submission of the following:
b.1. Valid JVA, if applicable, within ten (10) calendar days from receipt by the bidder of
the notice from the BAC that the bidder has the HRRB;
b.2. Posting of performance security ;
b.3. Signing of the contract; and
b.4. Approval by higher authority, if required.

C. Failure and Refusal to Accept Award


1. If the bidder with the HRRB/SRRB, fails, refuses or is unable to submit the documents
required or to make good its bid by entering into a contract with the procuring entity or post
the required Performance Security within the period prescribed or stipulated in the Bidding
Documents, the bid security shall be forfeited and the appropriate sanctions provided in the
revised IRR and existing laws shall be imposed, except where such failure, refusal or
inability is through no fault of the said bidder.
2.

In the case of the failure, refusal or inability of the bidder with the HRRB to submit the
documents required or to enter into contract and post the required Performance Security, the
BAC shall disqualify the said bidder, and shall initiate and complete the post-qualification
process on the bidder with the second HRB.
a. In the case of consulting services, the second HRB must successfully undergo the
negotiation stage. This procedure shall be repeated until the HRRB is determined for
award.
b. If no bidder passes post-qualification, the BAC shall declare the bidding a failure and
conduct a re-bidding with re-advertisement. Should there occur another failure of bidding
88

after the conduct of the contracts re-bidding, the procuring entity concerned may enter
into a negotiated procurement.
3. Refusal to accept an award, without just cause or for the purpose of forcing the Procuring
Entity to award the contract to another bidder, if proven, is meted with a penalty of
imprisonment of not less than six (6) years and one (1) day by not more than fifteen (15)
years. Additional penalties of suspension for one (1) year from participation in government
procurement for the first offense, and suspension for two (2) years for the second offense
shall also be imposed on the bidder.

D. Relevant Jurisprudence
1. MMDA v. Jancom Environmental Corporation, G.R. No. 147465, January 30, 2002
a. For the existence of a valid contract, there must be a valid notice of award.
b. The invalidity of the notice of award may be cured by subsequent execution of a contract
by the parties.
c. Private party may not be faulted for the government agents failure to comply with
requirements for the notice of award.

G. GPPB Opinion
1. 2013-11-25, NPM 090-2013 Changes after NOA
a. No, the change in the project site after the issuance of Notice of Award amounts to
modification of bidding documents is not allowed under RA 9184 and its IRR.
b. In changing the project site after the issuance of the NOA runs counter with the following
procurement rules and regulations: (a) in the Invitation to Bid, the name and location of
the contract to be bid, the project background and other relevant information regarding
the proposed contract works, including a brief description of the type, size, major items,
and other important or relevant features of the works; and (b) in the PBDs for
Infrastructure Projects (Section VII, Drawings), the actual Drawings, including site plans,
should be attached to said section or annexed in a separate folder.
c. Modification of government contracts, after the same had been awarded after a public
bidding, is not allowed because such modification serves to nullify the effect of public
bidding and whatever advantages the Government had secured thereby and may also
result in manifest injustice to other bidders.
89

STEP 10. CONTRACT SIGNING AND APPROVAL58


Period:

Contract must be signed by the parties within ten (10) calendar days from
receipt by the winning bidder of the NOA
When further approval of a higher authority is required, the approving
authority for the contract, or his duly authorized representative, shall be
given a maximum of fifteen (15) calendar days from receipt thereof, to
perfect the said contract, to approve or disapprove it

Participants: Procurement Unit/Office/End-User Unit;


HOPE and/or higher contract approving authority; and
Winning bidder.
Requisites:

Notice of Award has been issued in favor of winning bidder


Performance Security and other requirements

Purpose:

To enter into an agreement with the HRRB regarding the provision of the
services.

Tasks:

Parties prepare and sign the contract


Submit contract by appropriate authority

NOA, Procurement
Security and other
Requirements

Contract
preparation

Contract Signing

Approval by
authority

A. Contract Signing Guidelines


1. The winning bidder and the Procuring Entity must enter into a contract immediately after the
former has submitted the performance security and all other documentary requirements.
2. The Chief Accountant or the Chief Budget Officer may sign the contract as an instrumental
witness thereto.
3. The Procuring Entity signatory is encouraged to sign within the same day as the signing of
the bidder as there are penalties against delaying, without justifiable cause, the award of the
contract.

58

Sec. 37, GPRA R-IRR.

90

4. It would be best for the winning bidder and the HOPE, or its appropriate signing authority, to
sign/execute the contract together provided that all contract documents and requirements
are complete so that both may personally appear before a Notary Public.

B. Effectivity of the contract


1. Unless otherwise specified in the contract, a contract is effective upon receipt of the NTP. If
an effectivity date is provided in the NTP by the Procuring Entity concerned, which date
shall not be later than three (3) calendar days from its issuance, all notices called for by the
terms of the approved contract shall be effective only from such effectivity date.

C. Approving Authorities
1. In most procuring entities, particularly the bureaus or lower-level offices of NGAs or
centrally managed GOCCs or GFIs, the contract signatory is a different official from the
approving authority. For example, a bureau director may only be authorized to approve
contracts up to Fifty Million Pesos (PhP 50,000,000.00).
2. Contracts exceeding the said amount are brought up to the Secretary for approval. Different
Procuring Entities have different levels of delegated authority, but the principle is essentially
the same the higher the contract amount, the higher is the level of the approving authority.
In cases like this, the contract is usually deemed effective upon approval of such higher
authority. The existence of this policy is the usual cause of delays in procurement
transactions.
3. If further approval of a higher authority within the Procuring Entity (other than the President
of the Philippines) is required, and that authority does not take any action on the contract
within the prescribed period, the contract concerned is deemed approved.
4. Only contracts that are duly signed by the appropriate signatory are covered by this rule. An
unsigned contract is a mere piece of paper and cannot be the basis of a government liability.
D. Rules governing the review and approval of government contracts 59
1. Except for government contracts required by law to be acted upon and/or approved by the
President, the HOPE shall have full authority to give final approval and/or enter into all
government contracts of his respective government agency, awarded through public bidding,
regardless of amount.
2. However, the HOPE must certify under oath that the contract has been entered into in faithful
compliance with all applicable laws and regulations.
59

Executive Order (E.O.) 423, s. 2005, as amended by E.O. 645, s. 2007, prescribes the rules and regulations on the
review and approval of government contracts.

91

3. The HOPE may also delegate in writing this full authority to give final approval and/or enter
into government contracts awarded through public bidding as circumstances may warrant,
subject to such limitations as he may impose.
4. For procurement undertaken through any of the alternative methods allowed by law,
involving an amount less than Five Hundred Million Pesos (PhP 500,000,000.00), except
where action or approval of the President is required, the HOPE shall have full authority to
give final approval and/or enter into such contract.
a. Provided that the Department Secretary concerned certifies under oath that the contract
has been entered into in faithful compliance with all applicable laws and regulations.
a.1. S/he may delegate in writing this authority, as circumstances may warrant, subject to
such limitations as he may impose.
5. Where the HOPE has made a determination that a Government contract, including those
required by law to be acted upon and/or approved by the President, involving an amount of
at least Five Hundred Million Pesos (P 500,000,000.00) falls under any of the exceptions
from public bidding allowed by law, the HOPE shall, before proceeding with the alternative
methods of procurement provided by law and applicable rules and regulations, obtain an
approval from the GPPB that said Government contract falls within the exceptions from
public bidding and the proposed specific alternative method of procurement is the
appropriate mode of procurement.
6. Except for Government contracts required by law to be acted upon and/or approved by the
President, the HOPE, after obtaining the foregoing requirements, shall have full contracts of
his respective agency, entered into through alternative methods of procurement allowed by
law. Provided, that the HOPE certifies under oath that the contract has been entered into in
faithful compliance with all applicable laws and regulations.

E. Performance Security
1. A performance security is a guarantee made by the winning bidder to warrant faithful
performance of its obligations under the contract in accordance with the bidding documents.
2. It must be denominated in Philippine Pesos and posted in favor of the procuring entity, which
shall be forfeited in the latters favor in the event it is established that the winning bidder is in
default in any of its obligations under the contract.
3. The performance security shall remain valid until issuance by the procuring entity of the
Certificate of Final Acceptance.
4. The bidder with the HRRB shall post the performance security within a maximum of ten (10)
calendar days from the winning bidders receipt of the NOA from the Procuring Entity and in
92

no case later than the signing of the contract by both parties. It is one of the requirements to
be submitted by the winning bidder, to form part of the contract.
5. The bidder shall post a performance security prior to the signing of the contract.
6. The procuring entity cannot limit the allowable forms of performance security provided
under the revised IRR of R.A. 9184 nor and modify the respective amounts thereof. The
winning bidder must choose which among the allowable forms it shall submit.
7. In case of a reduction in the contract value, or, in the case of procurement of infrastructure
projects, for partially completed works under the contract which are usable and accepted by
the GOP, and the use of which, in the judgment of the implementing agency or the procuring
entity, will not affect the structural integrity of the entire project, the said agency or
procuring entity shall allow a proportional reduction in the original performance security,
provided that any such reduction is more than ten percent (10%) and that the aggregate of
such reductions is not more than fifty percent (50%) of the original Performance Security.
8. The performance security may be released by the procuring entity after the issuance of the
Certificate of Acceptance, subject to the following conditions:
a. Procuring entity has no claims filed against the contract awardee or the surety company;
b. It has no claims for labor and materials filed against the contractor; and,
c.

Other terms of the contract.

F. Refusal or Failure to Post Performance Security and Sign Contract


1. If the bidder with the HRRB or SRRB refuses to, or is unable, without justifiable cause or
through its own fault, to post the performance security and sign the contract within the
prescribed period:
a. Its bid security is forfeited
b. It is disqualified from further participating in the bidding at hand,
c.

Upon conviction, it will suffer the penalty of imprisonment of not less than six (6) and
one (1) day and not more than fifteen (15) years; and

d. Upon determination of administrative liability, it will suffer the administrative penalties


of suspension for one (1) year from participation in government procurement for the first
offense, and suspension for two (2) years for the second offense.
2. If the failure of the bidder with the HRRB/SRRB to sign the contract within the prescribed
period is not due to its fault, the sanctions mentioned above shall not be imposed.
93

3. If bidder is one with HRRB, the BAC must initiate and complete the post-qualification of the
bidder with the second HRB.
a. This procedure must be repeated until the HRRB is determined for award.
b. If no bidder passes post-qualification, the BAC declares the bidding a failure and
conducts a re-bidding with re- posting and re-advertisement.
c. Should there be another failure of bidding after the conduct of the re-bidding; the
Procuring Entity may enter into a negotiated procurement.
4. If, on the other hand, the bidder that fails to post the performance security and sign the
contract happens to be one with the SRRB, the BAC must declare the bidding a failure.
a. It then conducts a re-bidding with re-posting and re-advertisement.
b. Should there be another failure of bidding after the conduct of the re-bidding; the
Procuring Entity may enter into a negotiated procurement.

G. Practical Considerations
1. It should be noted that GPPB Resolution No. 34-2013 grants additional authority in light of
the recent national disasters.
a.

It authorizes all concerned government procuring entities to procure goods and


infrastructure projects, for the purpose of providing rescue, recovery, relief, and/or
rehabilitation efforts for, and to continue to provide basic services to victims in areas
affected by Typhoon Yolanda with an Approved Budget for the Contract of at least
Five Hundred Million Pesos (PhP500,000,000.00) for the duration of the State of
National Calamity until lifted by the President pursuant to Proclamation No. 682, Series
of 2013.

H. GPPB Opinion
1. 2013-12-26, NPM 120-2013 NGO Required to Post Performance Security
a. Regardless of the category of procurement for a contract where the NGO is engaged
using Negotiated Procurement (NGO Participation) under Section 53.11 of the IRR of
RA 9184 and Section 6 of the NGO Participation in Public Procurement (Guidelines), the
selected NGO is required to post a performance security upon signing of the MOA. The
Guidelines require the posting of performance security in accordance with Section 39 of
the IRR of RA 9184 regardless of the modality adopted in selecting the NGO.

94

2. 2013-04-10, NPM 037-2013 Government Agency may be required to post Performance


Security
a. [T]he Implementing Guidelines on Agency-to-Agency Agreements (Guidelines), which
describes the conditions when a government agency may procure from another agency
without need of public bidding pursuant to Section 53.5 of the IRR of RA 9184, provides
under Section 5(c) thereof that the Procuring Agency may require the Servicing Agency
to post a Performance Security under Section 39 of RA 9184. This suggests that the
posting of a Performance Security is an option which the procuring agency may impose
upon the servicing agency subject to the former's discretion. Accordingly, PPI may be
required to post Performance Security for contracts where the procuring entity has elected
to require the same from PPI.

95

STEP11. ISSUE NOTICE TO PROCEED60


Period:

Within three (3) calendar days from the date of approval of the contract

Participants: Procurement Unit/Office/End-User Unit


HOPE/representative, and/or higher contract approving authority
Winning bidder
Requisites:

Duly approved contract with winning bidder

Purpose:

To notify the HRRB that it may already commence with the project

Tasks:

Issue the NTP to winning bidder


Post NTP in PhilGEPs and Procuring Entitys website

Contract Signed and


Approved

Issue Notice to
Proceed

Post Notice to Proceed


in PhilGEPs/Website

A. Notice to Proceed (NTP)


1. The NTP is procurement document which signify that the procuring entity and the
awarded bidder have already undergone contract signing and the latter shall now be
obliged to perform its obligation based upon the terms and conditions of the contract.
B. Issuance of the NTP
1. The NTP shall be issued together with a copy or copies of the approved contract to the
successful bidder within three (3) calendar days from the date of approval of the contract
by the appropriate government approving authority.61
2. The contract effectivity date shall be provided in NTP by the procuring entity, which
shall not be later than seven (7) calendar days from its issuance.
3. Procuring entity, through the BAC Secretariat, shall post a copy of the NTP and the
signed contract within fifteen (15) calendar days from the issuance of the NTP.
4. The NTP shall be posted in either of the following:
a. PhilGEPS website; or
b. Procuring Entitys website, if available.

60
61

Sec. 37.4, GPRA R-IRR.


Sec. 37.4.1, GPRA R-IRR.

96

B. LIMITED SOURCE BIDDING62


Period:

After procurement preparations

Participants: HOPE;
BAC;
TWG;
BAC Secretariat
Invited suppliers/consultants; and
Observers.
Requisites:

BAC Resolution regarding change of procurement mode (when


applicable)
GAA

Purpose:

To allow the use of alternative methods of procurement for administrative


convenience.

Tasks:

Securing list of consultants


Inviting listed consultants to bid

BAC
Recommendation
of LSB/

Secure list of
consultants

Invite listed
consultants to bid

Plan to use LSB

Proceed to steps in
Competitive
Bidding
those after posting/
advertising

A. Limited Source Bidding


1. Limited Source Bidding, otherwise known as Selective Selective Bidding, is a method of
procurement of goods and consulting services that involves the issuance of a direct
invitation to bid by the concerned procuring entity to a set of pre-selected consultants
with known experience and proven capability to provide the services required in a
particular contract.

B. Applicability of Limited Source Bidding


1. Limited Source Bidding may be employed by a Procuring Entity under any of the
following conditions:

62

LEGAL REFERENCE: Sec. 49, GPRA R-IRR.

97

a. Procurement of highly specialized types of and consulting services where only a few
consultants are known to be available, such that resorting to the public bidding
method will not likely result in any additional consultants participating in the bidding;
or
b. Procurement of major plant components where it is deemed advantageous to limit the
bidding to known qualified bidders in order to maintain uniform quality and
performance of the plant as a whole.

C. Bidders To Be Invited
1. In choosing the Bidders, the procuring entity shall consider only those suppliers or
consultants appearing in a list63 maintained by the relevant government authority that has
expertise in the type of procurement concerned.
2. The pre-selection shall be based upon the capability and resources of the bidders to
perform the contract taking into account their experience and past performance on similar
contracts, capabilities with respect to personnel equipment or manufacturing facilities,
and financial position.64
3. The BAC of the concerned procuring entity shall directly invite all the consultants
appearing in the pre-selected list.65

D. Performance Security
1. Performance security is required and should be posted in accordance with the procedures
for competitive bidding.

E. Procedure
1. If the original mode of procurement recommended in the APP was Public Bidding, the
BAC recommends the change in the mode of procurement from Public Bidding to
Limited Source Bidding through a Resolution to be approved by the HOPE.
2. The BAC Secretariat prepares the bidding documents, including the Invitation to Bid (IB)
indicating there in the method of procurement to be used and the technical
specifications.
3. The BAC, through the Secretariat, gets the list of pre-selected consultants from the
government authority that has expertise in the type of procurement at hand and submitted
63

This list should have been submitted to, maintained and updated with the GPPB and posted in the PhilGEPS.
Sec.49.3, GPRA R-IRR.
65
Sec.49.4, GPRA R-IRR
64

98

to the GPPB. It may also access the PhilGEPS website as a secondary source of
information.
4. If a pre-procurement conference66 is required or deemed necessary, the BAC holds the
said conference.
a. If a pre-procurement conference is held, the participants should confirm the existence

of the conditions required by law for procurement through Limited Source Bidding.
5. The BAC Secretariat sends the Invitation to Bid (IB)/Request for Expression of Interest
(REI) to the pre-selected consultants.
a. The IB/REI is sent to ALL consultants in the list.
b. IB/REI, issued by the BAC, should already indicate the relevant information required
to enable prospective bidders to prepare their bids.
6. The BAC proceeds with the pre-bid conference (if deemed warranted under the
circumstances), eligibility check and/or short-listing, bid evaluation, post-qualification
and succeeding activities up to contract award, signing and approval, following the
procedures for Competitive Bidding.
a. All other procedures for competitive bidding shall be undertaken, save for the
advertisement of IB.
7. The BAC, through the Secretariat, posts for information purposes the award in:
a. PhilGEPS;
b. Website of the Procuring Entity, if any; and
c. Any conspicuous place in the premises of the Procuring Entity.

F. When to hire Foreign Consultants


1. If Filipino consultants do not have enough expertise and capability to render the services
required under the project, foreign consultants may be hired.67

66

It is the forum called by the BAC for procurements undertaken through public bidding, where all officials
involved in the procurement meet and discuss all aspects of the transaction, including the technical specifications,
the Approved Budget for the Contract, the applicability and appropriateness of the recommended method of
procurement and the milestones, the bidding documents, availability of the pertinent budget release for the project /
contract, among others. Refer to subsection on this topic.
67
Sec.24.3.3, GPRA R-IRR.

99

2. The umbrella organization of consultants that will be recognized by the GPPB as


representative of the consulting industry in the Philippines will prepare and certify a list
of fields wherein Filipino consultants can provide competent consulting services.
a. As proof of the availability of Filipino expertise, it will also prepare a list of its
members that have expertise in a specific field.
b. It will list its standards for competence in the field and certify that the members that it
has listed have passed such standards.68
c. The absence of these lists will indicate the lack of local expertise in an area.

G. GPPB Opinion
1. 2013-06-26, NPM 061-2013 Limited Source Bidding Rationale
a. [T]he limited nature of the possible sources of the goods and services to be procured
is mainly qualified by the conditions under Section 50 of the IRR of RA 9184, and
not by the fact alone that there are only limited providers with which the procuring
entity is permitted to engage.
b. Considering that, ordinarily, Catering Services are available from and is being offered
by various companies in the country, and does not involve highly specialized
requirements, and is undoubtedly not a major plant component, we are of the view
that Limited Source Bidding cannot be resorted to in the procurement of Catering
Services. In this regard, we reiterate that Competitive Bidding should be resorted to in
the acquisition of the contemplated service.
2. 2013-12-27, NPM 135-2013 BAC cannot delegate authority to conduct Limited Source
Bidding
a. The BAC cannot delegate the conduct of LSB to another office/body in the procuring
entity. Section 12.1 of the IRR of RA 9184 categorically vests upon the BAC the
authority to process and evaluate the procurement requirements of bidders. Even the
BAC Secretariat cannot be delegated with the functions expressly conferred upon the
BAC by Republic Act No. (RA) 9184 and its revised Implementing Rules and
Regulations (IRR). An exception to this policy was established for procurement using
Shopping and Negotiated Procurement (Small Value Procurement) for the reason that
these particular methods of procurement are used for contracts that are of
considerably small amount and are generally simple/routinary, such that delegating
the functions to another unit will be more efficient and economical for the procuring
entity. Said exception is not applicable to the LSB inasmuch as the circumstances
surrounding procurement activities using LSB are not similar to those covered by
Shopping and Negotiated Procurement (Small Value Procurement).
68

Annex B General Principles On Consulting Services of the revised IRR

100

C. NEGOTIATED PROCUREMENT69
Period:

When demanded by circumstances, or


After procurement preparations

Participants: HOPE;
BAC, TWG and Secretariat;
End-user unit or PMO;
Capable consultant;
Observers; and
COA Representative
Requisites:

BAC Resolution regarding change of procurement mode (when


applicable)
GAA

Purpose:

To allow the use of alternative methods of procurement in exceptional


cases

Tasks:

Conducting Pre-procurement Conference, when applicable


Determination of capable consultants
Negotiations with consultants
Obtaining Performance Security, when applicable
Posting of the Notice of Award, when applicable

A. Negotiated Procurement Defined


1. Negotiated Procurement is a method of procurement whereby the procuring entity
directly negotiates a contract with a legally, technically and financially capable
consultant.

B. Applicability of Negotiated Procurement


1. Negotiated procurement must be resorted to only in the following circumstances:
a. Two Failed Biddings Where there has been failure of public bidding for the
second time;
b. Emergency Cases In case of imminent danger to life or property during a state
of calamity, or when time is of the essence arising from natural or man-made
calamities or other causes where immediate action is necessary to prevent damage

69

LEGAL REFERENCE: Sec. 53, GPRA R-IRR.

101

to or loss of life or property, or to restore vital public services, infrastructure


facilities and other public utilities70;
c. Take-Over of Contracts Take-over of contracts, which have been rescinded or
terminated for causes provided for in the contract and existing laws, where
immediate action is necessary to prevent damage to or loss of life or property, or
to restore vital public services, infrastructure facilities and other public utilities;
d. Adjacent or Contiguous Where the subject contract is adjacent or contiguous
to an on-going Consulting Service where the consultants have unique experience
and expertise to deliver the required service71;
e. Agency-to-Agency Procurement of consulting services, from another agency of
the GOP;
f. Procurement Agent Procuring Entities which may not have the proficiency or
capability to undertake a particular procurement, as determined by the HOPE
concerned, may request other GOP agencies to undertake such procurement for
them, or at their option, recruit and hire consultants or procurement agents to
assist them directly and/or train their staff in the management of the procurement
function;
g. Highly Technical Consultants In the case of individual consultants hired to do
work that is (i) highly technical or proprietary; or (ii) primarily confidential or
policy determining, where trust and confidence are the primary consideration for
the hiring of the consultant72;
h. Small Value Procurement - Where the procurement does not fall under
Shopping and the amount involved does not exceed the thresholds prescribed73;

70

In case of infrastructure projects, procuring entity has the option to undertake project through negotiated
procurement or by administration or, in high security risk areas, through the AFP.
71
Provided, however, that
(a) the original contract is the result of a Competitive Bidding;
(b) the subject contract to be negotiated has similar or related scopes of work;
(c) it is within the contracting capacity of the contractor/consultant;
(d) the contractor/consultant uses the same prices or lower unit prices as in the original contract less
mobilization cost;
(e) the amount involved does not exceed the amount of the ongoing project; and
(f) the contractor/consultant has no negative slippage/delay:
Provided, further, that negotiations for the procurement are commenced before the expiry of the original contract;
72
Provided, however, that the term of the individual consultants shall, at the most, be on a six (6) month basis,
renewable at the option of the appointing Head of the Procuring Entity, but no case shall exceed the term of the
latter.
73
The thresholds shall be subject to the periodic review by the GPPB. For this purpose, the GPPB shall be
authorized to increase or decrease the said amount in order to reflect the changes in economic conditions and for
other justifiable reasons.

102

i. Lease of Real Property Lease of privately owned real property and venue for
official use;
j. NGO Participation When an appropriation law or ordinance earmarks an
amount to be specifically contracted out to Non-Governmental Organizations, the
Procuring Entity may enter into a Memorandum of Agreement with an NGO,
subject to guidelines to be issued by the GPPB;
k. Community Participation Where, in the interest of project sustainability or to
achieve certain specific social objectives, it is desirable in selected project
components to call for participation of local communities in the delivery of
services, the procuring entity shall propose the procedures, specifications, and
contract packaging, subject to the approval of the GPPB;
l. UN Agencies - Procurement from specialized agencies of the United Nations of
any of the following: (a) small quantities of off-the-shelf goods, primarily in the
fields of education and health; and (b) specialized products where the number of
suppliers is limited, such as vaccines or drugs.
C. General Procedure
1. If the original mode of procurement recommended in the APP was competitive bidding,
the BAC recommends the change in the mode of procurement to negotiated procurement
through a Resolution to be approved by the HOPE.
2. The BAC convenes the appropriate officials for the pre-procurement conference, if
deemed necessary.
3. For alternative methods of procurement, advertisement and posting may be dispensed
with.
a. However, in the case of two-failed biddings and small value procurement, the BAC,
through the Secretariat, shall post for information purposes the procurement
opportunity for in:
a.1. PhilGEPS;
a.2. Website of the Procuring Entity, if available; and
a.3. Any conspicuous place in the premises of the Procuring Entity.
b. The posting shall be done for a maximum period of seven (7) calendar days prior to
bid opening.
4. The contract awarded must be posted in the aforementioned websites and at any
conspicuous place reserved for this purpose in the premises of the procuring entity.
103

D. Special Rules/Procedures Specific to the Kind of Negotiated Procurement


1. Two Failed Biddings74
a. After conduct of the mandatory review of the terms, conditions, specifications, and cost
estimates, the BAC shall revise and agree on the minimum technical specifications, and if
necessary, adjust the ABC, subject to the required approvals.75
b. If the original mode of procurement recommended in the APP was competitive bidding,
the BAC recommends the change in the mode of procurement to negotiated procurement
through a Resolution to be approved by the HOPE.
c. The BAC convenes the appropriate officials for the pre-procurement conference, if
deemed necessary.
d. The BAC shall invite and engage in negotiations with a sufficient number of consultants
to ensure effective competition.76
e. Requirements, guidelines, documents, clarifications, or other information relative to the
negotiations that are communicated by the procuring entity to a consultant shall be
communicated on an equal basis to all other consultants engaging in negotiations with the
procuring entity relative to the procurement.
f. BAC, through the Secretariat, shall post for information purposes for seven (7) calendar
days the procurement opportunity in:
e.1. PhilGEPS;
e.2. Website of the Procuring Entity, if available; and
e.3. Conspicuous place in the premises of the Procuring Entity.
g. Following completion of the negotiations, the procuring entity shall request all
consultants remaining in the proceedings to submit, on a specified date, a best and final
offer with respect to all aspects of their proposals.
h. The procuring entity shall select the successful offer on the basis of such best and final
offers which should meet the procuring entitys minimum technical requirements and
should not exceed the ABC.
74

Sec. 35, Sec. 53, GPRA R-IRR. In all stages of the negotiations, observers shall be invited.
However, the ABC cannot be increased by more than twenty percent (20%) of the ABC for the last failed bidding.
76
All Procuring Entities shall maintain a registry of suppliers, contractors, and consultants as basis for drawing up
the short list and/or selecting the suppliers, contractors, and consultants for negotiations.
75

104

i. The contract awarded must be posted in the aforementioned websites and at any
conspicuous place reserved for this purpose in the premises of the procuring entity.

2. Emergency Cases
a. If the procurement is being negotiated in case of imminent danger to life or property, the
BAC, through the BAC Secretariat, may negotiate with any legally, technically and
financially capable bidder.
b. Only notices of awards shall be posted.

3. Take Over Contracts


a. If the procurement is being negotiated as a result of a terminated or rescinded contract
being taken over because immediate action is necessary to prevent damage to, or loss of,
life or property, or to restore vital public services, infrastructure facilities and other public
utilities, then the contract may be negotiated:
a.1. By starting with the second lowest calculated bidder for the project under
consideration at the bidders original bid price.
a.2. If negotiation fails, then negotiation shall be done with the third lowest calculated
bidder at his original price. If the negotiation fails again, a short list of at least three (3)
eligible contractors shall be invited to submit their bids, and negotiation shall be made
starting with the lowest bidder.
a.3. Authority to negotiate contracts for projects under these exceptional cases shall be
subject to prior approval by the Head of the Procuring Entity or other higher authorities,
if required, within their respective limits of approving authority.

4. Adjacent or Contiguous
a.

If the procurement being negotiated is adjacent or contiguous, the procuring entity shall
directly negotiate with the previous winning contractor/consultant. 77

b. The negotiations for the procurement must be commenced before expiry of the original
contract.

77

Provided that all the conditions under Section 53.4, Sec. 53, GPRA R-IRR.

105

5. Agency To Agency Contracts78


a.

Conditions.
a.1. Agency-to-Agency Agreements may only be resorted to if the following conditions
are complied with:
a.1.1. Conduct of a Cost-benefit Analysis by the Procuring Agency indicating that
entering into an Agency-to-Agency Agreement with the Servicing Agency is more
efficient and economical for the government;
a.1.2. Total amount of all consulting projects undertaken or to be undertaken through
Agency-to-Agency Agreements shall not exceed twenty-five percent (25%) of the
Procuring Entitys total procurement budget for each consulting services as reflected
in its approved APP;
a.1.3. Servicing Agency has the mandate to deliver the consultancy servicres required
by the Procuring Agency; and
a.1.4. Servicing Agency owns or has access to the necessary tools and equipment
required for the project.
a.2. Subject to appropriate guidelines, the Procuring Agency may require the Servicing
Agency to post a Performance Security and/or post a warranty security
a.3. All procurement to be undertaken by the Servicing Agency, including those required
for the project, shall continue to be governed by the provisions of the GPRA.
a.4. All projects undertaken through Agency-to-Agency Agreements shall be subject to
pertinent budgeting, accounting, and auditing rules.

b. Procedural Requirements
b.1. The end-user unit shall undertake a Costbenefit analysis, taking into consideration
the following factors: prevailing standard cost for the project in the market, absorptive
capacity of the Servicing Agency, and such other factors.
b.2. It shall likewise secure a certificate from the relevant officer of the Servicing Agency
that the latter complies with the following conditions:
b.2.1. Mandate to deliver the goods and services required to be procured or to
undertake the infrastructure project or consultancy required by the Procuring Agency;
and

78

The procuring entity should follow the procedures provided under the Implementing Guidelines on Agency-toAgency Agreements, approved and adopted by the GPPB through Resolution No. 182007, dated 31 May 2007.

106

b.2.2. Owns or has access to the necessary tools and equipment required for the
project.
b.3. Based on the assessment and recommendation of the end-user unit, the BAC shall
issue a resolution recommending the use of Agency-to-Agency Agreement to the head of
the Procuring Agency.
b.4. Upon approval of the BAC resolution, the Procuring Agency shall enter into a
Memorandum of Agreement (MOA) with the Servicing Agency.
b.5. The MOA shall reflect the agreement of the parties with regard to the posting of a
performance bond and/or a warranty security.
b.6. For purposes of transparency, the Procuring Agency shall post the award of the
contract, in the following areas:
b.6.1. PhilGEPS website;
b.6.2. Website of the Procuring Agency and its electronic service provider, if any; and
b.6.3. Any conspicuous place in the premises of the Procuring Agency.
6. Small Value Procurement79
a. General Guidelines
a.1.The decision to resort to Small Value Procurement shall be reflected in the Annual
Procurement Plan and must take into consideration the annual procurement requirements
of the item to be procured and other market factors, such as fluctuations in prices.
a.2. Splitting of contracts is strictly prohibited.80
a.3. After the decision to resort to Shopping or Small Value procurement has been made,
the conduct thereof may be delegated to the appropriate bureau, committee, or support
unit duly authorized by the BAC.
b. Procedural Guidelines

79

In case of Small Value Procurement, the provisions of the Implementing Guidelines for Shopping and Small
Value Procurement provided under GPPB Resolution No. 092009, dated 17 December 2009 shall be followed.
80
Splitting of contracts means the breaking up of contracts into smaller quantities and amounts, or dividing contract
implementation into artificial phases or subcontracts, for the purpose of making it fall below the threshold for
shopping or small value procurement, or evading or circumventing the requirement of public bidding.

107

b.1. The Request For Quotation (RFQ), indicating the specification, quantity, ABC, and
other terms and conditions of the item to be procured, shall be prepared.
b.1.1.The RFQ must also prescribe the manner by which price quotations shall be
submitted i.e., by sealed or open quotation, and the deadline for their submission.
b.1.2. However, information relating to the examination, evaluation, and comparison
of price quotations shall be kept confidential in all instances, and should not be
disclosed to any other party except to those officially concerned until award of
contract.
b.2.The RFQ shall be sent to at least three (3) suppliers, contractors, or consultant of
known qualifications.
b.2.1.However, during unforeseen contingencies requiring immediate purchase81, the
RFQ may be sent to only one (1) supplier.
b.3. RFQs shall also be posted for a period of seven (7) calendar days in the PhilGEPS
website, website of the procuring entity, if available, and at any conspicuous place
reserved for this purpose in the premises of the procuring entity.
b.3.1.However, this posting requirement shall not be applicable:
b.3.1.1. When there is an unforeseen contingency requiring immediate purchase;
or
b.3.1.2. RFQs with ABCs equal to Fifty Thousand Pesos (PhP 50,000.00) and
below.
b.4. After the deadline for submission of price quotations, an Abstract of Quotations shall
be prepared setting forth the names of those who responded to the RFQ, their
corresponding price quotations, and the lowest quotation.
b.5. Award of contract shall be made, after successful negotiations, to the highest rated
offer (for consulting services) which complies with the specifications and other terms and
conditions stated in the RFQ.
b.6. All awards shall be posted in the PhilGEPS website, website of the procuring entity,
if available, and at any conspicuous place reserved for this purpose in the premises of the
procuring entity except for those with ABCs equal to Fifty Thousand Pesos (PhP
50,000.00) and below.
b.7. The procuring entity must validate whether it is entering into a contract with a
technically, legally and financially capable supplier, contractor or consultant by requiring
the submission of relevant documents or through other means.
81

Sec.52.1(a), GPRA R-IRR.

108

E. Posting of Performance Security


1. Performance security is generally required for negotiated procurement, except in the
following cases:
a. Emergency Cases;
b. Small Value Procurement;
c. Lease of Real Property; and
d. UN Agencies.
Rules for Negotiated Procurement
Two Failed Biddings

Mandatory review, ABC adjustments


BAC recommendation (when applicable)
Pre-procurement conferece (when necessary)
Negotiations with sufficient no. of consultants
Submission of best and final offers
Selection of successful offer
Contract award, posting

Emergency

Negotiate with any consultant who is legally,


technically and financially capable
Post notices of awards

Take Over Contracts

Negotiate with 2nd HRB


If it fails, negotiate with 3rd HRB
If it fails again, invite shortlist of at least 3 consultants

Adjacent/Contiguous

Directly negotiate with previous winning consultant


before end of contract

Agency to Agency

Conduct cost benefit analysis


Secure certificates from Servicing Agency
BAC resolution recommending agency-to-agency
If approved, MOA with Servicing Agency
Post Award

109

Small Value Procurement

Prepare RFQ
Send RFQ to at least 3 consultants of known
qualification
RFQs posted
Prepare Abstract of Quotations
Validate Consultant capability
Award of Contract
Post Award

F. Issues82
1. The DOH COBAC, in order to side-step the limit imposed on Agency-to-Agency
arrangements (25% of the total consultancy procurement), has resorted to executing Memoranda
of Agreement (MOAs) with various government agencies.
a. These MOAs, unlike Agency-to-Agency contracts, refer not to consultancy services, but
partnerships with various government agencies. However, the deliverables expected from
parties are still outlined therein.
b. However, the increased engagements under such MOAs have already stirred the Finance
Service concern. The BAC Secretariat/Procurement Service and Finance Service heads
are set to meet and discuss this issue.
2. Since the slant of the GPRA is the promotion of competitive bidding, resort to negotiated
procurement is rarely considered.
a. Among the factors for this attitude is the fact that stricter scrutiny is employed in case of
negotiated procurement or in the use of alternative methods in general.
b. It should also be noted, that in case of two failed biddings, while the law thereafter allows
negotiated bidding, it does not preclude the conduct of a third, fourth, and so on, bidding.
b.1. This practice is justified by the fact that there arent too many consultants anyway, so
it is unnecessary to leave out others. Conducting competitive biddings is believed to still
be more effective in obtaining more favourable contract terms.

82

From informal interviews conducted.

110

G. Relevant Jurisprudence
1. Nava v. J. Palattao, G.R. No. 160211, August 28, 2006
a. Resort to negotiated procurement must be justified by showing immediate and
compelling reasons for resort thereto. It must be shown why public bidding would be
detrimental and antithetical to public service.
b. In justifying the negotiated purchase without public bidding, petitioner claims that any
delay in the enrichment of the minds of the public high school students of Davao del Sur
is detrimental and antithetical to public service. Although this reasoning is quite
laudable, there was nothing presented to substantiate it.
2. National Center for Mental Health v. Commission on Audit, G.R. No. 114864, December 6,
1996 (prior to GPRA)
a. The Court upheld the validity of the negotiated contracts for the renovation and the
improvement of the National Center for Mental Health. Petitioners were able to show
that the long overdue need to renovate the Center made it compelling to fast track what
had been felt to be essential in providing due and proper treatment and care.
3. Baylon v. OmbudsmanG.R. No. 142738. December 14, 2001 (prior to GPRA)
a. The Court recognized that the purchases were made in response to an emergency brought
about by the shortage in the blood supply available to the public.
a.1. The shortage was a matter recognized and addressed by then Secretary of Health
Juan M. Flavier, who attested that he directed the NKTI [National Kidney and
Transplant Institute] to do something about the situation and immediately fast-track the
implementation of the Voluntary Blood Donation Program of the government in order to
prevent further deaths owing to the lack of blood.
it was imperative that the blood bags were procured immediately to meet the urgent
need to supply the hospitals with blood bags to start the blood programThe negotiated
prices that NKTI obtained were even lower than the buying price of other tertiary
government hospitals

H. GPPB Opinion
i.

2013-12-27, NPM 136-2013 Lone Response to Invitation to Bid, Negotiated Procurement


a. Section 53.1.2 of the IRR of RA 9184 provides that where there has been a failure of
public bidding for the second time, the BAC shall invite and engage in negotiations with
111

a sufficient number of suppliers, contractors or consultants to ensure effective


negotiations. Unlike in Shopping under Section 52.1(b), which requires at least three (3)
quotations , the rules do not impose the same requirement to Negotiated Procurement
(Two-Failed Biddings) under Section 53.1 of the IRR. The phrase "sufficient number of
suppliers, contractors or consultant" refers to the minimum number of contractors that the
PE must invite for the purpose of engaging in negotiation. Accordingly, if only one
bidder responded to such invitation, the Procuring Entity may proceed with the
Negotiated Procurement as long as it has invited contractors of a number that it deems
sufficient to ensure competition in accordance with Section 53.1.2 of the IRR of RA
9184.
ii.

2013-12-20, NPM 100-2013 Waiver of Two-failed biddings requirement


a. LNU cannot resort to Negotiated Procurement under Section 53.1 of the IRR of RA
9184 upon the instance of one failed bidding for its procurement project. Section 53 (a) of
RA 9184 and Section 53.1 of its IRR clearly and categorically provide that Negotiated
Procurement as an alternative method of procurement may be resorted to in case of two
failed biddings as provided in Section 35 thereof. Both provisions of the existing rules on
government procurement do not provide for any qualifications as to its applicability in
the instance of one failed bidding.

iii.

2013-12-20, NPM 099-2013, Two-failed biddings explained


a. BCS cannot resort to Negotiated Procurement (Two-Failed Biddings) for either of its
two procurement activities since these are two distinct procurement activities. Section
53.1 of the IRR of RA 9184 allows procuring entities to resort to Negotiated Procurement
in the event that there has been a failure of public bidding for the second time for the
same procurement project. The occurrence of two failed biddings will warrant resort to
the Negotiated Procurement modality if the two failed biddings were for the same
procurement project and based on reasons provided under Section 35 of the IRR.

iv.

2012-10-08, NPM 122-2012 Agency-to-Agency Procurement, Government Financial


Institutions
a. Participation in public bidding requires GFIs to compete with private banks as the
former are not given preference over the latter. Further, in case the GFI wins, the
resulting contract with the procuring agency will not be in the form of a Memorandum of
Agreement as contemplated under Negotiated Procurement (Agency-to-Agency
Agreements), but will be in the nature of a contract executed between the government
agency and the GFI, as a private bidder.
b. Negotiated Procurement (Agency-to-Agency Agreements) contemplates negotiation
with another government agency but this option is only available after conducting CBA
and satisfying the conditions laid down in the corresponding Guidelines.

112

v.

2012-02-22, NPM 022-2012, Nature of an Adjacent and Contiguous Contract in Consulting


Services.
a. [W]e wish to clarify that the term "consulting service" as used in Section 53.4 of the
IRR is not limited to consulting services related to or implemented alongside
infrastructure projects. The nature of an "adjacent or contiguous" contract means that the
projects are in actual physical contact with each other in the case of infrastructure
projects, and shall refer to a necessary connection between the subject matters, outputs,
components or deliverables of the ongoing contract and the contract to be negotiated for
purposes of project continuity or completion, in the case of consulting services.

113

III. PROCUREMENT TIMELINES


A. Maximum Period of Action
1. The maximum allowable period for completing the procurement is three (3) months from
the opening of bid to award of the contract.
2. Should all the allowable periods be exhausted, the procurement could last at most for a
hundred and seventy (170) days. However, the abovementioned proscription on the
allowable time should be followed.

B. Minimum Period of Action


1. Taking into consideration all the steps involved in the procurement process, the earliest
possible time to complete it is twenty-eight (28) calendar days.
2. Although the DOH Procurement Manual states that the same may be completed in
twenty-four (24) days.
PERIODS FOR PROCUREMENT OF CONSULTING SERVICES *
(in calendar days)
Latest
Earliest
Stage
Activity
Deadline
Allowable
Possible Time
Time
1 Advertisement/
Invitation
7
7
2 Eligibility Check
20
3
3
From start of
Issuance of availability
Stage 1 to
of Bidding Documents
Stage 5
0
0
4
12 days before
Pre-bid Conference
Stage 5
1
1
10 days before
Request for clarification stage 5
0
0
Supplemental/ Bid
7 days before
Buletin
Stage 5
0
0
5
75 days from
Submission and receipt
of bids

last day of
Stage 1

Submission of additional
requirements

3 days after
Stage 5

114

Bid Evaluation
7 Notification for
negotiation
8 Negotiation
9 Post-qualification
10 Approval of resolution/
Issuance of Notice of
Award
11 Contract of preparation
and signing
12 Approval of contract by
higher authority
13 Issuance of Notice to
Proceed
Adjustments (due to minimum periods)
Total Time
Time Prescribed in Procurement Manuals

23

3
10
30

1
1
1

10

15

3
40
170
124

1
5
28
24

C. Causes of Delay83
1. Drafting the TOR
a. One of the main causes of delay in the procurement of consultancy services is the
preparation of the TOR.
b. While there is already a designated clearing house for this, it has not improved the
proficiency in writing TORs.
2. Approvals
a. Unlike in procurement of goods and infrastructure projects, the process of
procurement of consultancy is approval intensive.
b. The problem is that most of the time, the approvals are not given within the
designated period the documents are not signed on time or worse, lost and would
have to be reconstituted by the BAC Secretariat, thereby taking more time.
c. The effect of delay in approving contract awards has far-reaching consequences.
After the lapse of the period for approval, the same is deemed approved. While in the
past, bidders would patiently wait for such approval, they have been recently more
and more attentive to such issue reminding procurement staff of the aforesaid rule.
83

Based on informal interviews

115

3. Post-qualifications
a. Since the officers involved in the process are merely designated meaning their
procurement duties are imposed on top of their regular assignments setting meetings
can prove to be very difficult.
b. Moreover, since most of the members of the TWG are program managers, they are
hardly available to convene because of their workload. For some, procurement is not
on top of their priorities.
4. Protests
a. Motions for Reconsideration and Protests filed by participants in the procurement
process may very well cause delay. However, since these proceedings have proved to
be costly, participants in DOH procurement rarely file such actions.
b. For example, in a project which costs Php 100,000,000.00, a protesting bidder would
have to pay a non-refundable protest fee of at least one percent (1%) the contract
price.
b.1. The fee may be pegged at more than one percent (1%).
b.2. And there may be other costs such as compensation for legal and technical
services, which eventually discourage protests.

D. Practical Considerations
1. During procurement planning, approximate periods may be calculated using the GPPB
application found on its website.
a. The link to the said application : http://www.gppb.gov.ph/timelines/timelines.htm

116

IV. PROCUREMENT CHECKLIST84


Procurement
Activity
A.
Procurement
Planning

Maximum
No. of Days

Input
1.PPMP
2.TOR
3.ABC
4.Certificate
of Availability
of Funds
5. Clearance
from Clearing
Office

B. Preparation
of the REI and
Bidding
Documents

Responsible
Entity
1.End-user
2.PMO

Output
1.Evaluation and
inclusion into
ABP
2. Consolidation
of PPMP to APP
3. Approval of
APP

Responsible
Entity
1. End-user
2.PMO

1.Duly
approved APP
2. Duly
approved and
signed TOR

1.BAC
Secretariat
2. TWG/
Technical
Expert
3.Consultants
hired to
prepare PBD

1.REI
2.PBD

1.BAC
Secretariat
2. TWG/
Technical
Expert
3.Consultants
hired to
prepare PBD

C. Preprocurement
Conference

Prior to
advertisement
of REI

1. Notices to
preprocurement
conference
2. Attendance
sheet

1.BAC
2. BAC
Secretariat
3.End-users
4.TWG/
Technical
Expert
5.Consultants
hired to
prepare PBD

1.Minutes of the
pre-procurement
conference
2. Duly signed
attendance sheet
3.Revised TOR

1.BAC
2. BAC
Secretariat
3.End-users
4.TWG/
Technical
Expert
5.Consultants
hired to
prepare PBD

D. Posting/
Advertisement
of REI

Posting least
7 days:
1.PhilGEPS
2. Procuring
Entitys
Website
3.
Conspicuous
places within
premises

1.REI
2.PBD

BAC
Secretariat

Posting/
Advertisement

BAC
Secretariat

1 publication
in newspaper
of general
circulation
84

SOURCE: DOH Procurement Manual on Consulting Services (Vol.4)

117

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days

E. Issuance of
Eligibility Data
Sheet

From the 1st


day of posting/
advertisement
of the REI
until the
opening of the
eligibility
requirements

E.1. Conduct of
opening of
eligibility
requirements
for shortlisting

Responsible
Entity

Input

Output

Responsible
Entity

Issuance of
Eligibility
Data Sheet

1.
Consultants/
consulting
firms
2.BAC
Secretariat

1.List of
prospective
consultants/firms

BAC
Secretariat

1.Notice of
Bid Opening
(BAC, Enduser, TWG)
2. Attendance
sheet
3. Eligibility
requirements
checklist
4. Invitation
addressed to
observers

1.BAC
2. BAC
Secretariat
3. Prospective
Consultants
4. End-user
5. TWG
6. Observers

1. Eligible/
Ineligible
consultants/
consulting firms
2. Minutes of
opening of
eligibility
requirements for
shortlisting
3. Duly
accomplished
and signed
eligibility
requirements
4.Notice of
eligibility/
ineligibility

1. BAC
2.BAC
Secretariat

E.2.
Shortlisting of
prospective
consultants

Maximum of
21 cd from
opening of the
eligibility
requirements

1. Letter to the
TWG to
conduct
shortlisting
2. DPO for the
TWG to
conduct
shortlisting

1.BAC
Secretariat
2. TWG

1. List of
shortlisted
consultants/
consulting firms
2. Posting of
shortlist

BAC
Secretariat

F. Availability
and issuance
of Bidding
Documents

From
determination
of shortlist
until deadline
for submission
and receipt of
bids

1.Bidding
documents
2. List of
shortlisted
consultants /
consulting
firms

BAC
Secretariat

1. Receipt of
payment for
Bidding
Documents
2. List of
consulting firms/
consultants who
purchased the
bidding
documents

BAC
Secretariat

118

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days

Responsible
Entity

Input

Output

Responsible
Entity

G. Conduct of
Pre-Bid
Conference

At least twelve
12 cd before
the submission
and receipts of
bids

Notice of prebid conference

1.BAC
2. BAC
Secretariat
3. Shortlisted
consultants
4. End-user
5. TWG
6. Observers

Minutes of prebid conference


made available
within 3cd

BAC
Secretariat

G.1. Written
request for
clarification

Ten (10)
calendar days
before
submission
and receipt of
bids

Written
request for
clarification or
interpretation
on any
provision of
Bidding
Documents

Prospective
Bidder

Written
response/
comments

BAC
appropriate
authority

G.2. Issuance
of Bid
Bulletins

Seven (7)
calendar days
before the
submission
and receipt of
bids

Supplemental/
Bid bulletin

BAC
Secretariat

Posting
1. PhilGEPS
Website
2. Website of the
procuring entity,
if available
3. Conspicuous
places with the
procuring
entitys premises

BAC
Secretariat

H.1.
Submission
and Receipt of
Bids

Forty-five (45)
calendar days
after
advertisement/
posting of REI

1.Notice of
bid opening
(BAC, TWG,
End-user)
2. Attendance
sheet
3.Technical
Proposal
checklist
4. Invitation
letters
addressed to
observers

1.BAC
2.BAC
Secretariat
3. Prospective
Bidder
4. Observers
5. TWG
6. End-user

1. Minutes
Opening of
technical
proposals
2. Duly
accomplished
and signed
technical
proposal
checklist
3. Duly
accomplished
attendance sheet

1. BAC
2. BAC
Secretariat

I. Evaluation of
the Technical
Proposals

Must be
completed
within seven

1. Notice of
bid evaluation
(BAC/TWG)

BAC
Secretariat

1. Bid evaluation
report
2. Minutes of the

1.BAC
2.BAC
Secretariat

119

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days
(7) calendar
days from the
deadline of
receipt of bid
proposals

Responsible
Entity

Input
2. Eligible bid
proposals

Output
BAC/TWG
Evaluation
3. Notification to
bidders who
passed the
technical
evaluation
4. Posting of list
of consultants
who passed the
technical
evaluation
5.Resolution
approving the
technical
evaluation report
and opening the
financial
documents

Responsible
Entity
3.TWG

J. Conduct of
Opening of the
Financial
Proposals

One (1)
calendar day

1. Abstract of
bids
2. Attendance
sheet
3.Financial
proposal
checklist

1.BAC
2. BAC
Secretariat
3. Prospective
bidder
4. Observers
5. TWG
6. End-user
7. Observers

1. Minutes of
Opening of
technical
proposals
2. Duly
accomplished
and signed
technical
proposal
checklist
3.Duly
accomplished
attendance sheet

1.BAC
2. BAC
Secretariat

K. Evaluation
of the
Financial
Proposals

Must be
completed
within seven
(7) calendar
days from the
opening of the
financial
proposals

1. Notice of
bid evaluation
(BAC/TWG)
2. Financial
proposals of
consultants
who passed
the technical
evaluation

BAC
Secretariat

1. Bid evaluation
report
2. Minutes of the
BAC/TWG
evaluation
3. Posting of list
of consultants
who passed the
financial
evaluation
4. Resolution
approving the
combined

1.BAC
2. BAC
Secretariat
3. TWG

120

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days

Responsible
Entity

Input

Output

Responsible
Entity

technical and
financial
evaluation report
L. Notification Within three
for Negotiation (3) calendar
days, the BAC
shall notify
and invite the
consultant
with the
highest rated
bid for
negotiation

1.BAC
2.BAC
Secretariat
3. End-user
4. Consultant
5.Observers

1. Duly signed
and distributed
notice for
negotiation
2. Invitation
letters

BAC
Secretariat

M. Negotiation

1.BAC
2.BAC
Secretariat
3.Consultant
with HRB
4.TWG
5.End-user
6. Observer

1.Minutes of
negotiation
2. Duly signed
attendance sheet

BAC
Secretariat

1.Consultant
with HRB
2.BAC
Secretariat

1.Post1.BAC/TWG
qualification
2.BAC
evaluation report Secretariat
2.Minutes of
post-qualification
3.Notice of postqualification

N. Postqualification

1.Notice for
negotiation
(BAC, BAC
Secretariat,
End-user,
TWG)
2.Invitation
letter
addressed to
consultant
with the
highest rated
bid
3.Invitation
letters
addressed to
observers
Negotiation
1.Agenda for
with the
negotiation
consultant
2.Technical
with the
and financial
highest rated
documents of
bid shall be
the consultant
completed
with the
within ten (10) highest rated
calendar days
bid
from the
3.Terms of
approval of the Reference
resolution
4.Attendance
sheet
Must be
1.Postcompleted in
qualification
not more than requirements
seven (7)
2.Notice for
calendar days
postfrom the
qualification
determination (BAC/TWG)
of the
consultant
with the
highest rated
bid

121

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days
Extendible to
not more thirty
(30) calendar
days in
exceptional
cases
O. Drafting and Approval of
the resolution
Approval of
the Resolution to declare
HRRB and
to Declare
recommend
Highest Rated
award shall
and
not exceed
Responsive
seven (7)
Bidder and
calendar days
Recommend
Award
P. Issuance of
Notice of
Award

Q. Contract
Preparation
R. Contract
Signing

After
approval,
HOPE shall
cause the
immediate
issuance of the
NOA to
consultant
declared as the
HRRB

Enter into
contract with
the winning
bidder within
ten (10)
calendar days
after posting
of

Responsible
Entity

Input

Output

Responsible
Entity

BAC
resolution to
declare the
HRRB and
recommend
award (or
BAC
resolution to
declare a
failure of
bidding)
1.Notice of
Award
2.Submission
of the
following
a. JVA within
ten (10)
calendar days,
if applicable
b.
Performance
security
c. Approval of
higher
authority
3. Notification
of the bidding
results

BAC
Secretariat

Approval or
disapproval of
the BAC
resolution to
declare HRRB
and recommend
award

HOPE

BAC
Secretariat

1.Acceptance
(through signing
of conforme by
the consultant)
2. Posting of
NOA within
three (3) calendar
days in the
following media:
a. PhilGEPS
b.Website of
procuring entity

1.Awarded
consultant
2.BAC
Secretariat

Contract draft

1.End-user
2.PMO
BAC
Secretariat

Contract

Enduser/PMO
1.HOPE or
authorized
signatory
2. Winning
consultant

Contract

122

Duly approved
and signed
contract

IV. PROCUREMENT CHECKLIST84


Procurement
Activity

Maximum
No. of Days
performance
security and
submission of
documentary
requirements.

Input

Responsible
Entity

Output

Responsible
Entity

In contract
approval, the
approving
authority shall
have fifteen
(15) calendar
days from
receipt thereof
for approval or
disapproval.
S. Issuance of
the Notice to
Proceed

NTP and
approved
contract shall
be issued
within three
(3) calendar
days

1.NTP
2.Approved
contract

BAC
Secretariat

Proof of receipt
(Return Card)
and/or deliver
receipt of the
NTP and
approved
contract

BAC
Secretariat

T. Posting of
NTP

Within fifteen
(!5) calendar
days from the
issuance of
NTP

1.NTP
2. Approved
contract

BAC
Secretariat

Posting:
1.PhilGEPS
2.Website of the
procuring entity

BAC
Secretariat

123

V. CONTRACT IMPLEMENTATION
A. PAYMENTS85
A. Advance Payment
1. The procuring entity may make an advance payment to cover cost of mobilization in an
amount not exceeding fifteen percent (15%) of the contract amount.
2. To receive the advance payment, consultant must submit a written request with an
irrevocable letter of credit86 in an amount equal to the payment, and issued by an entity
acceptable to the procuring entity.
Advance Payment
Requirements

1. Written request for advance payment


2. Letter of credit equivalent to the requested
amount, issued by an acceptable entity

3. The advance payment shall be deducted by the procuring entity from the progress
payments to the consultant, in the amount agreed by the parties during the negotiations,
until the same has been fully liquidated.
4. The consultant may reduce the standby letter of credit or guarantee instrument by the
amount refunded in the advance payment.

B. Contract Price and Payment


1. Contracts for consulting services are fixed price contracts. Price escalation is not allowed;
the price in the awarded contract shall be the price for the work specified therein.
2. Contract prices must be denominated and payable in Philippine currency. This must be
reflected in the bidding documents.
3. However, PE may provide payment in foreign currency, subject to GPPB guidelines.

85

LEGAL REFERENCE: Secs.42.4, 61.1, Annex F, GPRA R-IRR.


Land Bank v. Monet Export, G.R. No. 161865, March 10, 2005. A letter of credit is a financial device developed
by merchants as a convenient and relatively safe mode of dealing with sales of goods to satisfy the seemingly
irreconcilable interests of a seller, who refuses to part with his goods before he is paid, and a buyer, who wants to
have control of the goods before paying.
86

124

4. Submitted Bids which are denominated in foreign currency shall be converted to


Philippine currency based on prevailing exchange rate officially prescribed by the BSP
on the date of the bid opening.
5. Payments must be made by the Procuring Entity as soon as possible and in no case later
that forty-five (45) days after submission of request for payment, accompanied by
pertinent documents pursuant to contract, and upon fulfilment of other obligations in the
contract.
a. The Procuring Entity must also ensure that all accounting and auditing requirements
are met prior to payment.
b. Only the portion of a claim that is not satisfactorily supported/ accepted may be
withheld from payment subject to the usual accounting and auditing rules and
regulation.
c. The final payment must be made only after the consultant submits its final report and
such report is approved as satisfactory by the Procuring Entity.
C. Kinds Consultancy Contracts Based on Payment Terms
1. Lump Sum Contract
a. Lump sum contracts are used mainly for assignments in which the content and the
duration of the services and the required output of the consultants are clearly defined.
Payments are linked to outputs (deliverables), thus, they are easy to administer
because payments are due on clearly specified outputs.
2. Time-based Contract
a. This type of contract is appropriate when it is difficult to define the scope and the
length of the services, either because the services are related to activities by others for
which the completion period may vary, or because the input of the consultants
required attaining the objectives of the assignment is difficult to assess.
b. Payments are based on agreed hourly, daily, weekly or monthly rates for staff (who
are normally named in the contract) and on reimbursable items using actual expenses
and/or agreed unit prices.
b.1. The rates for staff include salary, social costs, overhead, fee (or profit), and,
where appropriate, special allowances.
c. This type of contract should include a maximum amount of total payments to be made
to the consultants. This ceiling amount should include a contingency allowance for

125

unforeseen work and duration, and provision for price adjustments, where
appropriate.
d. Time-based contracts need to be closely monitored and administered by the client to
ensure that the assignment is progressing satisfactorily and that payments claimed by
the consultants are appropriate.
3. Retainer and/or Contingency (Success) Fee Contract
a. Retainer and contingency fee contracts are widely used when consultants are
preparing companies for sales or mergers of firms, notably in privatization operations.
b. The remuneration of the consultant includes a retainer and a success fee, the latter
being normally expressed as a percentage of the sale price of the assets.
4. Percentage Contract
a. Percentage contracts directly relate the fees paid to the consultant to the estimated or
actual project construction cost, or the cost of the goods procured or inspected.
b. Contracts are negotiated on the basis of market norms for the services and/or
estimated staff-month costs for the services, or competitively bid.
c. As for architectural services only it is recommended only if it is based on a fixed
target cost and covers precisely defined.
5. Indefinite Delivery Contract (Price Agreement)
a.

Used when Procuring Entities need to have on call specialized services to provide
advice on a particular activity, the extent and timing of which cannot be defined in
advance.

b. Commonly used to retain services of experts normally for a period of a year or more.
c. The Procuring Entity and the firm agree on the unit rates to be paid for the experts,
and payments are made on the basis of the time actually used.

Lump Sum Contract

Time-Based Contract

Kinds of Consultancy Services


Simple planning and feasibility studies
Environmental studies
Detailed design of standard or common
structures
Preparation of data processing systems
Complex studies
Supervision of construction
Advisory services
126

Training assignments
Retainer/ Contingency Fee
Contract

Preparing companies for sales or mergers of


firms
Privatization operations

Percentage Contract

Architectural services
Procurement and inspection

Indefinite Delivery Contract

Advisers for implementation of complex


projects Expert adjudicators for dispute
resolution panels
Institutional reforms
Procurement advice
Technical troubleshooting

D. Incentive Bonus
1. The procurement entity may not grant incentive bonuses to consultants, regardless of its
form and purpose.

E. GPPB Opinion
1. 2013-12-26, NPM 119-2013 Additional deliverables at no additional cost
a. BCDA may revise the existing design contract to include additional deliverables,
provided, however, that such revision will entail no additional payment or cost on the
part of the procuring entity.
b. Section 61.1 of the revised Implementing Rules and Regulations (IRR) of Republic
Act No. (RA) 9184 provide that all bid prices shall be considered as fixed prices, and
therefore not subject to price adjustment and escalation during the contract
implementation. Moreover, Section 2 of Annex "F" of the IRR of RA 9184 reiterates
the principle that all consultancy contracts shall be fixed price contracts and any
extension of contract time shall not involve any additional cost. Lastly, Clause 55.6 of
the General Conditions of Contract of the Philippine Bidding Documents for the
Procurement of Consulting Services provides that no additional payment for variation
order, if any, shall be allowed for the consultancy contract.

127

B. DAMAGES87
A. Replacement of Consultant, Key Personnel
1. Changes in key personnel, to which the PE has not agreed to, or for reasons other than
death, illness or incapacity, during such individual personnels completion of the first
fifty percent (50%) of his/her contracted inputs shall result in a liability for damages.
2. For the replacement to result in a liability for damages, the following conditions must
concur:
a. The procurement entity has not agreed to such change, or it is not due to death, illness
or incapacity of the replaced personnel; and
b.The change took place during the performance of the individuals first fifty percent
(50%) contracted inputs.
3. The fine imposed shall be equivalent to the replaced personnels basic rate, which should
be at least fifty percent (50%) of the total basic rate for the duration of the engagement.

B. Unsatisfactory Performance of Key Personnel


1. The procuring entity may request the consultant for replacement of any personnel if such
personnel has committed serious misconduct, has been charged with a criminal act, or has
performed in a dissatisfactory manner.
1. The request must be made in writing, specifying the grounds therefore.
2. The replacement must be a person with qualifications and experience acceptable to
the procuring entity, equal to or better than that of the personnel replaced.
3. The replacement shall receive compensation not exceeding the amount originally to
be paid to the person replaced.
4. The consultant, in complying with the request for replacement, may not claim for any
additional costs arising out of or incidental to the removal or replacement of any
personnel.

C. Liquidated Damages

87

LEGAL REFERENCE: Secs. 68, GPRA R-IRR

128

1. When the consultant fails to satisfactorily complete the services required under the
contract within the specified period, inclusive of duly granted time extensions, if any, the
consultant shall be liable for damages for the delay.

2. It will have to pay the Procuring Entity liquidated damages in an amount equal to onetenth (1/10) of one percent (1%) of the cost of unperformed portion for every day of
delay.88
3. The sum of liquidated damages shall not reach ten percent (10%) of the contract amount.
a. If it does, the contract shall automatically be rescinded by the Procuring Entity,
without prejudice to other courses of action and remedies open to it.
4. The Procuring Entity may also take over the contract or award the same to a qualified
consultant through negotiation.
5. In addition to the liquidated damages, the erring consultants performance security shall
also be forfeited.
6. In case the delay in the completion of the services exceeds ten percent (10%) of the
specified contract time plus any time extension duly granted to the consultant, the
Procuring Entity may rescind the contract.
a. It then forfeits the consultants performance security and takes over the prosecution of
the contract or awards the same to a qualified consultant through negotiated
procurement.
Rescission of Contract
Automatic

Sum of liquidated damages reach 10% of the


contract amount

Optional

Delay in completion extends 10% of specified


contract time (plus extensions if any)

D. Relevant Jurisprudence
1. NPC v. Philipp Brothers Oceanic, Inc., G.R. No. 126204 November 20, 2001
a. When inability to perform an obligation arises out of fortuitous event or force
majeure, the non-performing party cannot be held liable for damages.

129

b. Extant in our Civil Code is the rule that no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were inevitable. This
means that when an obligor is unable to fulfil his obligation because of a fortuitous
event or force majeure, he cannot be held liable for damages for non-performance.
2. COA v. Linkworth International, Inc., G.R. No. 182559, March 13, 2009
a. No award of damages can be made in favor of Audio Visual in this case, however.
COA is an unincorporated government agency which does not enjoy a separate
juridical personality of its own. Hence, even in the exercise of proprietary functions
incidental to its primarily governmental functions, COA cannot be sued without its
consent.

130

C. SUBCONTRACTING89
A. Subcontracting Guidelines
1. Unless otherwise specified in the bidding documents, the Consultant may subcontract
portions of the Consulting Services to an extent as may be approved by the Procuring
Entity and stated in the bidding documents.
2. However, the discretion of whether or not to allow subcontracting arrangements is within
the determination of the procuring entity.
3. The procuring entity also has the authority to specify the portions of Consulting Services
and the maximum percentage allowed being subcontracted.
a. Only a maximum of twenty percent (20%) of the Consulting Services may be
subcontracted.
4. Subcontracting of any portion shall not relieve the Bidder from any liability or obligation
that may arise from the contract for this Project.
a. The Supplier will be responsible for the acts, defaults, and negligence of any
subcontractor, its agents, servants or workmen as fully as if these were the Suppliers
own acts, defaults, or negligence, or those of its agents, servants or workmen.
5. Subcontractors must comply with the eligibility criteria and the documentary
requirements specified in the bidding documents.
6. In the event that any subcontractor is found by the Procuring Entity to be ineligible, the
subcontracting of such portion shall be disallowed.
7. The Bidder may identify the subcontractor to whom a portion of the Goods will be
subcontracted at any stage of the bidding process or during contract implementation.
a. If the Bidder opts to disclose the name of the subcontractor during bid submission,
the Bidder shall include the required documents as part of the technical component of
its bid.
b. Subcontractors disclosed and identified during the bidding may be changed during the
implementation of this Contract, subject to compliance with the required
qualifications and the approval of the Procuring Entity.

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LEGAL REFERENCE: GPPB Procurement Manual, Vol. 4.

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B. Relevant Jurisprudence
1. Roque v. COMELEC, G.R. No. 188456, February 10, 2010
a. The GPRA allows subcontracting portions of an awarded contract.
b. And, of course, the Court is at a loss to understand how the sub-contract would, in
the scheme of things, constitute grave abuse of discretion on the part of Comelec so
as to nullify the contract award of the automation project. As petitioners themselves
acknowledge, again citing news reports, Smartmatic has unilaterally made the new
subcontract to the Chinese company. Petitioners admit too, albeit with qualification,
that RA 9184 allows subcontracting of a portion of the automation project.

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D. SUSPENSION OF WORK90
A. By Procuring Entity
1. The Procuring Entity may, by written notice of suspension to the consultant, suspend all
payments to the consultant if the consultant fails to perform any of its obligations due to
its own fault or due to force majeure or other circumstances beyond the control of either
party.
2. The notice of suspension shall:
a. Specify the nature of the failure; and
b.

Request the consultant to remedy such failure within a period not exceeding thirty
(30) days after receipt by the consultant of such notice of suspension.

3. Procedure for issuance of Suspension Order


a.

PMO or end-user unit determines the existence of any of the grounds for suspension
enumerated above.

b. PMO or end-user unit drafts the suspension order for the approval of the HOPE.
c. Suspension order is issued to the consultant, stating the grounds there of.
d. Prior to the expiration of the suspension order, the PMO or end-user unit shall
determine whether or not the grounds for suspension still exist.
e. If such grounds continue to exist, or if it is no longer practicable to continue with the
work, it shall terminate the work subject of the order or cancel the delivery of the
items subject of such suspension.
f. If, however, the grounds for suspension no longer exist, and continuation of the work
is practicable, the PMO, with the approval of the HOPE or his/her duly authorized
representative, shall lift the suspension order and notify the consultant to proceed
with the work/delivery of items in accordance with the amended contract.
Determine
existence of cause
for suspension

Draft Suspension
order

B. By Consultant
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LEGAL REFERENCE: GPPB Procurement Manual, Vol. 4.

133

HOPE approves
suspension order

Suspension Order
issued

1. The consultant may, by written notice of suspension, suspend work on any or all
activities affected by the following:
a.

Failure on the part of the Procuring Entity to deliver government-furnished


equipment, resources, reports or data as stipulated in the contract;

b.

Peace and order conditions that make it extremely dangerous, if not impossible, to
work, provided that the consultant secures a written certification from the Philippine
National Police station that has responsibility over the affected area, as confirmed by
the Department of the Interior and Local Government Regional Director, that such
conditions exist; or

c.

Delay in the payment of consultants claim for progress billing beyond forty five (45)
calendar days from the time the consultants claim has been certified by the Procuring
Entity as being supported by complete documentation and a notice from the
consultant has been received by the Procuring Entity that such payment is overdue,
unless there are justifiable reasons which shall be communicated in writing to the
consultants.

2. The Procuring Entity can order the resumption of work if the grounds for work
suspension no longer exist and the continuation of the work is practicable.
3. Period when work was suspended shall be considered in extending the contract time, but
only in cases when the total suspension or the suspension of activities along the critical
path is not due to the fault of the consultant.
a. The elapsed time between the effective order suspending operation and the order to
resume work shall be considered in the adjustment/extension of contract time.

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E. WARRANTY91
A. Warranty Guidelines
1. A warranty is an assurance that the consultant who worked on a project shall be held
liable when structural defects and/or failures arise during the applicable warranty period
due to faulty and/or inadequate design and specifications as well as construction
supervision.
2. It is required of a consultant for detailed engineering design and construction supervision,
but may also be incorporated as a provision of the contract for other consulting services,
as mutually agreed upon by the consultant and the Procuring Entity.

B. GPPB Opinion
1. 2012-01-18, NPM 011-2012 Warranty for Consulting Services
a. For your guidance, Section 62 of RA 9184 and its IRR requires the issuance of
warranty security only for goods and infrastructure projects procured, and does not
include consulting services.
b. The warranty contemplated in the Manual does not involve an amount similar to the
warranty security provided in the IRR. It refers to a mere statement that emphasizes
the liability of the consultant in line with Section 62.2.3.1 (b) of the IRR. This is akin
to the warranty mentioned in the PBDs for the Procurement of Consulting Services,
particularly, Clause 16 of its General Conditions of the Contract, where the consultant
warrants its eligibility and the fulfilment if its obligations by using knowledge
according to the best accepted professional standards.
c. Based on the foregoing, we wish to clarify that Section 62.2 of the IRR, insofar as it
requires the posting of warranty security, does not apply to procurement of consulting
services. However, this does not preclude procuring entities from requiring in
consultancy contracts that the consultants warrant or ensure that they shall be liable in
case of Structural Defects/Failures as provided in Section 62.2.3.1 of the IRR and/or
pecuniary civil liability and damages.

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LEGAL REFERENCE: GPPB Procurement Manual, Vol. 4.

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F. TERMINATION OF CONTRACT92
A. Termination
1. Termination in Part means the termination of a part but not all, of the work that has not
been completed and accepted under a contract.
2. Termination in Whole means the termination of all of the work that has not been
completed and accepted under a contract.

B. Grounds for Termination of Contracts


1. Termination by Default
The Procuring Entity shall terminate a contract for default when any of the following
conditions attend its implementation:
a. Outside of force majeure, the Consultant fails to deliver or perform the Outputs and
Deliverables within the period(s) specified in the contract, or within any extension
thereof granted by the Procuring Entity pursuant to a request made by the Consultant
prior to the delay;
b. As a result of force majeure, the Consultant is unable to deliver or perform a material
portion of the Outputs and Deliverables for a period of not less than sixty (60)
calendar days after the Consultants receipt of the notice from the Procuring Entity
stating that the circumstance of force majeure is deemed to have ceased; or
c. The Consultant fails to perform any other obligation under the contract.
2. Termination for Convenience
a. The Procuring Entity may terminate the Contract, in whole or in part, at any time for
its convenience.
a.1.The HOPE may terminate a contract for the convenience of the Government if
he has determined the existence of conditions that make Project Implementation
economically, financially or technically impractical and/or unnecessary.
b. The notice of termination shall specify that the termination is for the Procuring
Entitys convenience, the extent to which performance of the contractor under the
contract is terminated, and the date upon which such termination becomes effective.

92

LEGAL REFERENCE: Appendix 4 of the Handbook on Philippine Government Procurement, GPPB Resolution
018-2004 dated 22 December 2004

136

c. Any of the following circumstances may constitute sufficient grounds to terminate a


contract for convenience:
c.1. If physical and economic conditions have significantly changed so as to
render the project no longer economically, financially or technically feasible, as
determined by the HOPE;
c.2. The HOPE has determined the existence of conditions that make project
implementation impractical and/or unnecessary, such as, but not limited to,
fortuitous event/s, changes in laws and government policies;
c.3. Funding for the project has been withheld or reduced by higher authorities
through no fault of the Procuring Entity; or
c.4. Any circumstance analogous to the foregoing.
3. Termination for Insolvency
a. The Procuring Entity shall terminate the contract if the Consultant is declared
bankrupt or insolvent as determined with finality by a court of competent jurisdiction.
b. Termination will be without compensation to the Consultant, provided that it will not
prejudice or affect any right of action or remedy which has accrued or will accrue
thereafter to the Procuring Entity and/or the Consultant.
4. Termination for Unlawful Acts
a. The Procuring Entity may terminate the contract in case it is determined prima facie
that the Consultant has engaged, before or during the implementation of the contract,
in unlawful deeds and behavior relative to contract acquisition and implementation.
b. Unlawful acts include, but are not limited to, the following:
b.1. Corrupt, fraudulent, collusive and coercive practices93;

93

Coercive Practice means harming or threatening to harm, directly or indirectly, persons or their property to
influence their participation in a procurement process, or affect the execution of a contract.
Collusive Practice means a scheme of arrangement including practice among bidders (prior to or after bid
submission) designed to establish bid prices at artificial non-competitive levels to prevent free and open
competition.
Corrupt Practice means the offering, giving, receiving or soliciting of anything of value to influence the action of a
public official in the selection process or in contract execution. It also means entering, on behalf of the Government,
into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public
officer profits or will profit thereby; and similar acts as provided in Republic Act 3019.
Fraudulent Practice means a misrepresentation of facts in order to influence a selection process or the execution of
a contract to the detriment of the Procuring Entity.

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b.2. Drawing up or using forged documents;


b.3. Using adulterated materials, means or methods, or engaging in production
contrary to rules of science or the trade; and
b.4. Any other act analogous to the foregoing.
5. Termination by Consultant
a. The Consultant may terminate its agreement if the Procuring Entity latter is in
material breach of its obligations pursuant to the contract and has not remedied the
same within sixty (60) calendar days following its receipt of the Consultants notice
specifying such breach.
Grounds for Termination
Termination by default

No force majeure - failure to deliver or perform the


Outputs and Deliverables within the specified periods
force majeure - unable to deliver or perform a material
portion of the Outputs and Deliverables for a period of not
less than 60 days after notice of cessation of cause
Fails to perform any other obligation

Termination for Convenience

Changes in physical and economic conditions that render


the project no longer feasible
Existence of conditions that make project implementation
impractical and/or unnecessary
Funding for the project has been withheld or reduced by
higher authorities
Analogous circumstances

Termination for Insolvency

Declared bankrupt or insolvent as determined with finality

Termination for Unlawful Acts

Corrupt, fraudulent, collusive and coercive practices


Drawing up or using forged documents
Using adulterated materials, means or methods, or
engaging in production contrary to rules of science of the
trade
Analogous acts

Termination by Consultant

Procuring Entitys material breach of its obligations which


it has not remedied the same within 60 days from receipt of
notice

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C. Procedure for termination


1. Verification
a.

Upon receipt of a written report of acts or causes which may constitute ground(s) for
termination as aforementioned, or upon its own initiative, the Implementing Unit
shall, within a period of seven (7) calendar days, verify the existence of such
ground(s) and cause the execution of a Verified Report, with all relevant evidence
attached

2. Notice to Terminate
a. Upon recommendation by the Implementing Unit, the HOPE shall terminate contracts
only by a written notice to the Consultant conveying the termination of the contract.
b.

The notice shall state:


b.1. that the contract is being terminated for any of the ground(s) aforementioned, and a statement of the acts that constitute the ground(s) constituting
the same;
b.2. the extent of termination, whether in whole or in part;
b.3. an instruction to the Supplier/Contractor/Consultant to show cause as to why
the contract should not be terminated; and
b.4. special instructions of the Procuring Entity, if any.

c. The Notice to Terminate shall be accompanied by a copy of the Verified Report.


c.1. Verified Report refers to the report submitted by the Implementing Unit to the
HOPE setting forth its findings as to the existence of grounds or causes for
termination and explicitly stating its recommendation for the issuance of a Notice
to Terminate.
3. Show Cause
a. Show Cause refers to a notice which the Procuring Entity is required to issue prior to
terminating a contract. The purpose of a show cause notice is to enable the contractor
to present its position why the contract should not be terminated.
b. Within a period of seven (7) calendar days from receipt of the Notice of Termination,
the Supplier/Contractor/Consultant shall submit to the HOPE a verified position paper
stating why the contract should not be terminated.

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c. If the Supplier/Contractor/Consultant fails to show cause after the lapse of the seven
(7) day period, either by inaction or by default, the HOPE shall issue an order
terminating the contract.
4. Rescission of Notice of Termination
a. The Procuring Entity may, at any time before receipt of the Consultants verified
position paper to withdraw the Notice to Terminate if it is determined that certain
items or works subject of the notice had been completed, delivered, or performed
before the Consultants receipt of the notice.
5. Decision
a. Within a non-extendible period of ten (10) calendar days from receipt of the verified
position paper, the HOPE shall decide whether or not to terminate the contract.
b. It shall serve a written notice to the Consultant of its decision and, unless otherwise
provided, the Contract is deemed terminated from receipt of the Consultant of the
notice of decision.
c. The termination shall only be based on the ground(s) stated in the Notice to
Terminate
6. Contract Termination Review Committee (CTRC)
a. The HOPE may create a committee to assist him in the discharge of his function
under these Guidelines.
b. All decisions recommended by the CTRC shall be subject to the approval of the
HOPE.
7. Take-over of Contracts
a. If a Procuring Entity terminates the contract due to default, insolvency, or for cause, it
may enter into a negotiated procurement.
8. Notices by Consultant
a. The Consultant must serve a written notice to the Procuring Entity of its intention to
terminate the contract at least thirty (30) calendar days before its intended
termination.
b. The Contract is deemed terminated if it is not resumed in thirty (30) calendar days
after the receipt of such notice by the Procuring Entity.

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