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2016 Non-Policy Opinions

NPM No. 142-2016


Subject: Multi-Year Contracts; Foreign Bidder
Requesting Entity: Legal Services Group Development Bank of the Philippines (DBP)
Date: 2016-12-29

NPM No. 140-2016


Subject: Multi-Year Obligational Authority
Requesting Entity: Bureau of Customs (BOC)
Date: 2016-12-29

NPM No. 138-2016


Subject: Authority of the BAC Secretariat to Sign Documents
Requesting Entity: Provincial Office of Negros Oriental
Date: 2016-12-29

NPM No. 136-2016


Subject: Applicability of the 2016 Revised IRR of RA 9184
Requesting Entity: Central Bicol State University of Agriculture (CBSUA)-Main Campus
Date: 2016-12-29

NPM No. 134-2016


Subject: Submission of Tax Clearance; Bid Modification
Requesting Entity: Department of Budget and Management (DBM) Regional Office (RO)
IX
Date: 2016-12-29

NPM No. 132-2016


Subject: Applicability of RA 9184 in Privatization of Government Assets
Requesting Entity: San Juan and Associates
Date: 2016-12-29

NPM No. 130-2016


Subject: Mode of Procurement; Joint Ventures
Requesting Entity: Cebu Port Authority (CPA)
Date: 2016-12-29

NPM No. 128-2016


Subject: Post-Qualification Documents; Period for the Conduct of Competitive Bidding
Requesting Entity: City Government of Baguio
Date: 2016-12-28

NPM No. 126-2016


Subject: Nature of Business of Supplier
Requesting Entity: Department of Agrarian Reform (DAR)
Date: 2016-12-06

NPM No. 124-2016

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Subject: Exemption from the Single Largest Completed Contract Requirement under
Small B category
Requesting Entity: Southern Rock Construction and Supply
Date: 2016-12-06

NPM No. 122-2016


Subject: Exceptional Cases in Post-Qualification
Requesting Entity: Local Government Unit of Tagbilaran
Date: 2016-12-06

NPM No. 120-2016


Subject: DOLE DO No. 150-16
Requesting Entity: Land Transportation Office (LTO) - Region I Department of Labor
and Employment (DOLE)
Date: 2016-12-06

NPM No. 118-2016


Subject: Notice to Proceed
Requesting Entity: Department of Agrarian Reform (DAR) - Benguet
Date: 2016-12-06

NPM No. 117-2016


Subject: Department of Labor and Employment (DOLE) Department Order (DO) No.
150-16
Requesting Entity: Clark International Airport Corporation (CIAC)
Date: 2016-12-06

NPM No. 116-2016


Subject: Technical Specifications
Requesting Entity: Biodiversity Management Bureau
Date: 2016-12-06

NPM No. 115-2016


Subject: Retention Money for Expendable Goods
Requesting Entity: Tagum Water District
Date: 2016-12-06

NPM No. 114-2016


Subject: Non-Refundable Protest Fee
Requesting Entity: Macaraig Law Office
Date: 2016-12-06

NPM No. 113-2016


Subject: Adjacent or Contiguous Infrastructure Projects
Requesting Entity: Leyte Normal University (LNU)
Date: 2016-12-06

NPM No. 112-2016


Subject: Revision of Terms of Reference; Eligibility Documents for SVP

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Requesting Entity: National Housing Authority (NHA)
Date: 2016-12-06

NPM No. 111-2016


Subject: BAC Composition; Honoraria
Requesting Entity: Indang Water District
Date: 2016-12-06

NPM No. 110-2016


Subject: Mixed Procurement
Requesting Entity: Philippine Atmospheric, Geophysical and Astronomical Services
Administration (PAGASA)
Date: 2016-12-06

NPM No. 109-2016


Subject: Delegation to the Technical Working Group of the Site Visit During Post
Qualification; Small Value Procurement
Requesting Entity: Department of Science and Technology (DOST)
Date: 2016-12-06

NPM No. 108-2016


Subject: Applicability of RA 9184 in the River Rehabilitation Project with "Zero" ABC
Requesting Entity: Municipality of Trinidad
Date: 2016-12-06

NPM No. 107-2016


Subject: Submission of Copies of Eligibility Requirements during the Bid Opening
Requesting Entity: All Transport Network International Freight Forwarder
Date: 2016-12-06

NPM No. 106-2016


Subject: Honoraria for Job Order Employees
Requesting Entity: Department of Social Welfare and Development (DSWD)
Date: 2016-12-06

NPM No. 105-2016


Subject: Format of Statement of All Ongoing Government and Private Contracts
Requesting Entity: Municipality of Boac
Date: 2016-12-06

NPM No. 104-2016


Subject: Submission of Expired PCAB License
Requesting Entity: Department of Interior and Local Government
Date: 2016-12-06

NPM No. 103-2016


Subject: Withdrawal of Performance Security
Requesting Entity: Mr. Jeremy Bayan
Date: 2016-11-15

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NPM No. 102-2016
Subject: Delegation of Authority
Requesting Entity: Department of Public Works and Highways (DPWH)
Date: 2016-11-15

NPM No. 101-2016


Subject: PhilGEPS Posting for Negotiated Procurement (Two Failed Biddings) under
Section 53.1 of the Revised Implementing Rules and Regulations (IRR) of Republic Act
(RA) No. 9184
Requesting Entity: Tagkawayan Water District
Date: 2016-11-15

NPM No. 100-2016


Subject: BAC Membership
Requesting Entity: Commission on Higher Education (CHED)
Date: 2016-11-15

NPM No. 099-2016


Subject: Lease Agreement; Purchase Order; Authority to Procure Vehicles
Requesting Entity: Bureau of Soils and Water Management (BSWM)
Date: 2016-11-15

NPM No. 098-2016


Subject: Authentication of Documents Written in Foreign and English Language
Requesting Entity: Boston Home Inc.
Date: 2016-11-15

NPM No. 097-2016


Subject: Alternative Bids
Requesting Entity: Social Security System
Date: 2016-11-15

NPM No. 096-2016


Subject: PhilGEPS Registration
Requesting Entity: Philippine Deposit Insurance Commission (PDIC)
Date: 2016-11-15

NPM No. 095-2016


Subject: Alternative Bids
Requesting Entity: Social Security System Luzon South Division 2
Date: 2016-11-15

NPM No. 094-2016


Subject: Submission of Special Power of Attorney
Requesting Entity: National Irrigation Administration (NIA) Magat River Integrated
Irrigation System
Date: 2016-11-15

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NPM No. 093-2016
Subject: Department of Labor and Employment (DOLE) Department Order (DO) No.
150-16
Requesting Entity: Supreme Court (SC) of the Philippines
Date: 2016-11-15

NPM No. 092-2016


Subject: Negotiated Procurement - Two Failed Biddings Modality
Requesting Entity: Securities and Exchange Commission (SEC)
Date: 2016-11-15

NPM No. 091-2016


Subject: Two-Failed Biddings; Foreign Bidders
Requesting Entity: PEA Tollway Corporation (PEATC)
Date: 2016-11-15

NPM No. 090-2016


Subject: SUC VP for Administration as BAC Chairperson
Requesting Entity: Palompon Institute of Technology
Date: 2016-11-15

NPM No. 089-2016


Subject: Department of Labor and Employment (DOLE) Department Order (DO) No.
150-16
Requesting Entity: Philippine Commission on Women (PCW)
Date: 2016-11-15

NPM No. 088-2016


Subject: Designation of BAC Chairman
Requesting Entity: Fiscal Planning and Reforms Bureau Department of Budget and
Management (DBM)
Date: 2016-11-15

NPM No. 087-2016


Subject: Procurement of Catering Services
Requesting Entity: Bureau of Corrections (BuCor) Department of Justice (DOJ)
Date: 2016-11-15

NPM No. 086-2016


Subject: Contract and Purchase Order
Requesting Entity: Light Rail Transit Authority (LRTA)
Date: 2016-11-15

NPM No. 085-2016


Subject: Technical Requirements
Requesting Entity: DBP Leasing Corporation
Date: 2016-11-15

NPM No. 084-2016

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Subject: Adjacent or Contiguous
Requesting Entity: City of Manila
Date: 2016-11-15

NPM No. 083-2016


Subject: Bid Security
Requesting Entity: Commission on Audit-Cordillera Administrative Region
Date: 2016-11-15

NPM No. 082-2016


Subject: Pakyaw Contracting System
Requesting Entity: Province of Zambales
Date: 2016-11-15

NPM No. 081-2016


Subject: Delinquent Debtor as Bidder
Requesting Entity: Philippine Postal Savings Bank (PostBank)
Date: 2016-11-15

NPM No. 080-2016


Subject: Failure of the BAC to follow the prescribed bidding procedures; Award of
Contract to the Highest Bidder
Requesting Entity: De Leon Import & Export Corp.
Date: 2016-11-15

NPM No. 079-2016


Subject: Documentary Requirements for Negotiated Procurement (Two-Failed Bidding)
Requesting Entity: Department of Budget and Management (DBM) Regional Office IX
Date: 2016-11-15

NPM No. 078-2016


Subject: Contractor`s Performance Evaluation Summary (CPES) Final Rating
Requesting Entity: ICONST Architectural Design Construction and Development
(ICONST)
Date: 2016-11-15

NPM No. 077-2016


Subject: Disqualification of Blacklisted Supplier in the Procurement of Goods through
Shopping
Requesting Entity: Basilan General Hospital
Date: 2016-11-15

NPM No. 076-2016


Subject: Role of Observers
Requesting Entity: Sultan Kudarat Water District (SKWD)
Date: 2016-11-15

NPM No. 075-2016


Subject: Period of Payment after the Delivery of Goods

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Requesting Entity: Baybay Printshop
Date: 2016-11-15

NPM No. 074-2016


Subject: Disposal of Property and Other Assets of the Government
Requesting Entity: Environmental Management Bureau Department of Environment
and Natural Resources (EMB-DENR)
Date: 2016-11-15

NPM No. 073-2016


Subject: Single Largest Completed Contract (SLCC)
Requesting Entity: Kemanlee General Merchandise
Date: 2016-11-15

NPM No. 072-2016


Subject: Delay in Delivery of Goods
Requesting Entity: Pili Water District
Date: 2016-11-15

NPM No. 071-2016


Subject: Single Bidder in the Procurement of Consulting Services
Requesting Entity: National Nutrition Council (NNC)
Date: 2016-11-15

NPM No. 070-2016


Subject: Lease of Real Property or Venue
Requesting Entity: Department of Education (DepEd) Region X
Date: 2016-11-15

NPM No. 069-2016


Subject: Chief Accountant as Member of BAC TWG
Requesting Entity: Province of Zamboanga del Sur
Date: 2016-11-15

NPM No. 068-2016


Subject: Single Largest Completed Contract
Requesting Entity: City of Baguio
Date: 2016-11-15

NPM No. 067-2016


Subject: Conduct of Mandatory Review after Failure of Bidding
Requesting Entity: Philippine Health Insurance Corporation (PhilHealth)
Date: 2016-11-15

NPM No. 066-2016


Subject: Lease of Privately-Owned Real Estate
Requesting Entity: Home Development Mutual Fund (PAG-IBIG)
Date: 2016-11-15

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NPM No. 065-2016
Subject: Lease of Public Property
Requesting Entity: Office Of The Executive Secretary
Date: 2016-11-03

NPM No. 064-2016


Subject: Bill of Quantities
Requesting Entity: Municipality of Alabel
Date: 2016-11-03

NPM No. 063-2016


Subject: Adjustment of the Approved Budget for Contract (ABC): Change of
Procurement Method from Public Bidding to Shopping
Requesting Entity: Requesting Entity Department of Environment and Natural
Resources - Provincial Environment and Natural Resources Offices (DENR -PENRO)
Cebu
Date: 2016-11-03

NPM No. 062-2016


Subject: Proper Sealing and Marking of Bid Envelopes
Requesting Entity: ATWORK Manpower and General Services
Date: 2016-11-03

NPM No. 061-2016


Subject: Documentary Requirements for Direct Contracting
Requesting Entity: Philippine Retirement Authority
Date: 2016-11-03

NPM No. 060-2016


Subject: Honoraria for Bids and Awards Committee (BAC) Secretariat and Technical
Working Group (TWG) Members
Requesting Entity: Northern Iloilo Polytechnic State College (NIPSC)
Date: 2016-11-03

NPM No. 059-2016


Subject: Honoraria; Supply Officer
Requesting Entity: Cavite State University (CvSU)
Date: 2016-11-03

NPM No. 058-2016


Subject: Clause 5.1 of the Bid Data Sheet (BDS); Additional Eligibility Documents; Ten-
year Business Existence of Bidder
Requesting Entity: East Pacific Industrial Trading
Date: 2016-11-03

NPM No. 057-2016


Subject: Chairmanship of the Bids and Awards Committee
Requesting Entity: University of Eastern Philippines
Date: 2016-11-02

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NPM No. 056-2016
Subject: Omission of the Name of One of the Joint Venture Partners in the Financial Bid
Form
Requesting Entity: Workcentric
Date: 2016-11-02

NPM No. 055-2016


Subject: Period of Payment after the Delivery of Goods/
Requesting Entity: Baybay Printshop
Date: 2016-11-02

NPM No. 054-2016


Subject: Request of the Department of National Defense (DND) to Repeal Executive
Order (EO) No. 235, s. 2003
Requesting Entity: Department of Budget and Management (DBM)
Date: 2016-11-02

NPM No. 053-2016


Subject: Adjacent or Contiguous Negotiated Procurement Modality
Requesting Entity: Cebu Port Authority (CPA)
Date: 2016-10-27

NPM No. 052-2016


Subject: Negotiated Procurement (Two-Failed Biddings)
Requesting Entity: Juvenile Justice and Welfare Council (JJWC)
Date: 2016-10-03

NPM No. 051-2016


Subject: Procurement for the Repair and Maintenance of Ships
Requesting Entity: Punonghimpilan Hukbong Dagat ng Pilipinas
Date: 2016-10-03

NPM No. 050-2016


Subject: Acceptance of Temporary Philippine Contractors Accreditation Board (PCAB)
Certificate of License Renewal and Official Receipt
Requesting Entity: National Housing Authority (NHA)
Date: 2016-10-03

NPM No. 026-2016


Subject: Bidder presented BIR Receipt instead of Tax Clearance
Requesting Entity: Municipality of Mulanay
Date: 2016-03-21

NPM No. 025-2016


Subject: Newspaper Publication
Requesting Entity: Department of Interior and Local Government - Regional Office VI
(DILG-ROVI)
Date: 2016-03-21

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NPM No. 024-2016
Subject: Posting in the Philippine Government Electronic System (PhilGEPS)
Requesting Entity: City Government of Antipolo (CGA)
Date: 2016-03-21

NPM No. 023-2016


Subject: Proposed DBP Venture Capital Program (VCP)
Requesting Entity: Development Bank of the Philippines (DBP)
Date: 2016-03-21

NPM No. 022-2016


Subject: Direct Contracting
Requesting Entity: Civil Aviation Authority of the Philippines (CAAP)
Date: 2016-03-21

NPM No. 021-2016


Subject: Origin of Goods
Requesting Entity: Cagayan Economic Zone Authority (CEZA)
Date: 2016-03-21

NPM No. 020-2016


Subject: Consignment Projects
Requesting Entity: Bicol Medical Center (BMC)
Date: 2016-03-21

NPM No. 019-2016


Subject: Demonstration Prior to Bidding
Requesting Entity: Aspen Multi-System Corporation
Date: 2016-03-21

NPM No. 018-2016


Subject: Method of Procurement
Requesting Entity: Municipality of Pagsanjan, Laguna
Date: 2016-03-21

NPM No. 017-2016


Subject: Applicability of Republic Act No. 9184
Requesting Entity: Philippine Postal Savings Bank (PostBank)
Date: 2016-03-21

NPM No. 016-2016


Subject: Blacklisting of an Agent
Requesting Entity: Department of National Defense (DND)
Date: 2016-03-21

NPM No. 015-2016


Subject: Approved Budget for the Contract (ABC)
Requesting Entity: Philippine Normal University (PNU)

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Date: 2016-03-21

NPM No. 014-2016


Subject: Period to Resolve Protest
Requesting Entity: Poro Point Management Corporation (PPMC)
Date: 2016-03-21

NPM No. 013-2016


Subject: Multi-year contracts (MYCs)
Requesting Entity: House of Representatives (HOR)
Date: 2016-03-21

NPM No. 012-2016


Subject: Delayed Award of Contract
Requesting Entity: Speedex Construction and Development Corp.
Date: 2016-03-21

NPM No. 011-2016


Subject: Designation of BAC Chairman
Requesting Entity: Climate Change Commission (CCC)
Date: 2016-03-21

NPM No. 010-2016


Subject: Tax Clearance Certificate
Requesting Entity: Department of National Defense
Date: 2016-03-21

NPM No. 009-2016


Subject: PCAB License for Joint Ventures (JVs)
Requesting Entity: Bendimil Construction and Development Corporation
Date: 2016-03-21

NPM No. 008-2016


Subject: Capitalization of Markings on the Bid Envelopes
Requesting Entity: Thaumaturgy (Trade) Philippines (TP)
Date: 2016-03-21

NPM No. 007-2016


Subject: Provision of Honoraria
Requesting Entity: Municipality of Mondragon
Date: 2016-03-18

NPM No. 006-2016


Subject: Acceptable Forms of Performance Security
Requesting Entity: Ericvonne Construction
Date: 2016-03-18

NPM No. 005-2016


Subject: Incomplete Omnibus Sworn Statement

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Requesting Entity: Department of Environment and Natural Resources (DENR) -
Environmental Management Bureau (EMB)
Date: 2016-03-18

NPM No. 004-2016


Subject: Joint Venture's (JVs) Technical Requirements
Requesting Entity: National Irrigation Administration (NIA)
Date: 2016-03-18

NPM No. 003-2016


Subject: Joint Venture's (JVs) Technical Requirements
Requesting Entity: National Irrigation Administration (NIA)
Date: 2016-03-18

NPM No. 002-2016


Subject: Continuing Validity of Tax Clearance
Requesting Entity: Provincial Government of Nueva Ecija
Date: 2016-03-18

NPM No. 001-2016


Subject: Separate Bids and Awards Committees (BACs)
Requesting Entity: Mindanao University of Science and Technology (MUST)
Date: 2016-03-18

2016-12-29
NPM No. 142-2016
Requesting Entity: Legal Services Group Development Bank of the Philippines (DBP)
Issues Concern: Multi-Year Contracts; Foreign Bidder

Details
1. Maximum year of the annual maintenance contract in case of multi-year contracts

Republic Act (RA) No. 9184 and its 2016 Revised Implementing Rules and Regulations (IRR) are
silent as regards the maximum number of years the annual maintenance contract can be
procured. As such, the duration of the Multi-Year Contract will depend on the sound discretion
of the Procuring Entity subject to government budgeting, accounting and auditing rules, and
depending on its necessity subject to the approval of the Head of the Procuring Entity, in
DBP�s case, its Board.

2. Definition of Foreign and Local Bidder (Consultants)

The following are considered as local consultants for purposes of participating in government
procurement:

1. Duly licensed Filipino citizens/sole proprietorships;

2. Partnerships duly organized under the laws of the Philippines and of which at least sixty
percent (60%) of the interest belongs to citizens of the Philippines;
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3. Corporations duly organized under the laws of the Philippines and of which at least sixty
percent (60%) of the outstanding capital stock belongs to citizens of the Philippines;

4. Cooperatives duly organized under the laws of the Philippines, and of which at least sixty
percent (60%) belongs to citizens of the Philippines; or

5. Persons/entities forming themselves into a joint venture, i.e., a group of two (2) or more
persons/entities that intend to be jointly and severally responsible or liable for a particular
contract: Provided, however, That Filipino ownership or interest thereof shall be at least sixty
percent (60%). For this purpose, Filipino ownership or interest shall be based on the
contributions of each of the members of the joint venture as specified in their JVA.

For those individual, sole proprietorship, partnership, corporation or joint venture not falling
under the above-enumeration, they shall be considered as foreign bidders. It bears stressing
that under Section 24.3.3 of the 2016 Revised IRR of RA 9184, foreign consultants may be hired
in the event Filipino consultants do not have the sufficient expertise and capability to render
the services required under the project, as determined by the Head of the Procuring Entity,
subject to the submission of documents in accordance with Section 37.1.4(a)(iv) of the 2016
Revised IRR of RA 9184.

2016-12-29
NPM No. 140-2016
Requesting Entity: Bureau of Customs (BOC)
Issues Concern: Multi-Year Obligational Authority

Details
Whether it is necessary for the BOC to secure, prior to the bidding, a Multi-Year Obligational
Authority (MYOA) for one of your procurement projects that has a contract duration of one (1)
year commencing on November 2016 until October 2017 and for which, the funding shall be
sourced from the existing/current year budget (2016 General Appropriations Act (GAA)

For projects with sufficient funding that would be sourced from an existing appropriation and
not requiring multi-year appropriations, it is no longer necessary to secure a MYOA from the
Department of Budget and Management (DBM) prior to the bidding of the project. This
notwithstanding, we refer you the DBM, as the agency that issued the Updated Guidelines for
Issuance of MYOA for a more authoritative clarification on the matter.

2016-12-29
NPM No. 138-2016
Requesting Entity: Provincial Office of Negros Oriental
Issues Concern: Authority of the BAC Secretariat to Sign Documents

Details

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Whether the Bids and Awards Committee (BAC) Secretariat can sign documents on behalf of
the BAC Chairperson, in case of the latter’s absence; and if so, who will give the proper
authorization.

The authority of the BAC Secretariat, particularly its Head, to sign procurement-related
documents should be confined to those that are within the scope of its duties and
responsibilities under RA 9184 and its IRR, and should exclude those that require the exercise
of discretion, consent or approval on matters under the jurisdiction of a different authority. For
those documents that are within the jurisdiction of the Chairperson to act, approve and/or sign,
it would be more prudent to have the Vice-Chairperson to act, approve and/or sign such
documents in the absence of the originally designated Chairperson.

2016-12-29
NPM No. 136-2016
Requesting Entity: Central Bicol State University of Agriculture (CBSUA)-Main Campus
Issues Concern: Applicability of the 2016 Revised IRR of RA 9184

Details
Which Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 should be
followed in the opening of bids, the 2009 IRR or the 2016 Revised IRR

The 2016 Revised IRR was published in the Official Gazette on 29 August 2016 and became
effective 60 days thereafter or on 28 October 2016. Accordingly, for procurement activities with
the advertisements or invitations for bids issued prior to such date, such as in the instant case,
the procuring entity may continue to adopt the procedures, rules, and regulations of the 2009
revised IRR. But for procurement activities with advertisements or invitations for bids issued on
28 October 2016 onwards, the rules and procedures under the 2016 Revised IRR shall be
applicable.

2016-12-29
NPM No. 134-2016
Requesting Entity: Department of Budget and Management (DBM) Regional Office (RO) IX
Issues Concern: Submission of Tax Clearance; Bid Modification

Details
1. Submission of Tax Clearance

For purposes of complying with the eligibility requirements under Section 23.1(a)(iii) of the
Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184, the Tax Clearance
must be valid and existing at the time it is submitted to the Bids and Awards Committee (BAC),
that is, on or before the deadline for the submission of bids. In case the Tax Clearance expires
prior to award of contract, the bidder is obligated to renew and update its Tax Clearance.

2. Bid Modification

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A renewed and updated Tax Clearance may be accepted even after the deadline for the
submission of bids, not for purposes of modifying its previously submitted bids, but in
recognition of the bidder’s obligation under Executive Order No. 398, series of 2005 to renew
and update its Tax Clearance.

3. Rescheduling of Bid Opening

Section 29 of the 2016 Revised IRR of RA 9184, which is a new provision pertaining to
rescheduling of bid opening under the 2016 Revised IRR of RA 9184, provides that in case the
bids cannot be opened as scheduled due to justifiable reasons, the BAC shall take custody of
the bids submitted and reschedule the opening of bids on the next working day or at the
soonest possible time through the issuance of a Notice of Postponement to be posted in the
Philippine Government Electronic Procurement System website and the website of the
Procuring Entity concerned.

2016-12-29
NPM No. 132-2016
Requesting Entity: San Juan and Associates
Issues Concern: Applicability of RA 9184 in Privatization of Government Assets

Details
Whether the absence of public bidding on the lowest service rate per kilowatt hour (kWh) is in
violation of the provisions of the Republic Act (RA) No. 9184 or the Government Procurement
Reform Act, rendering the concession contract for geothermal power distribution (Privatization
of the Mt. Apo Geothermal Power Plant in Mindanao) illegal

Considering that privatization of assets and liabilities covered by RA 9136 does not involve an
acquisition of goods, consulting services, and the contracting for infrastructure projects, it is
not considered as procurement and therefore, beyond the ambit of RA 9184 and its 2016
Revised Implementing Rules and Regulations

2016-12-29
NPM No. 130-2016
Requesting Entity: Cebu Port Authority (CPA)
Issues Concern: Mode of Procurement; Joint Ventures

Details
Appropriate mode of procurement (Goods, Infrastructure Projects or Consulting Services) to be
used for the preparation of Bidding Documents considering the uniqueness of the project

At the outset, we wish to clarify that in determining the classification of a procurement project,
it is our considered view that it is the Procuring Entity (PE) that is in the best position to
determine the correct classification of its procurement based on its identified needs, guided by
the parameters and conditions in the relevant provisions of Republic Act (RA) No. 9184 and its
2016 Revised Implementing Rules and Regulations on what should be considered as goods,
infrastructure project, and consulting services. We note, however, the peculiarity of the project

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being proposed by the CPA whereby private entities will be engaged at no cost on the part of
CPA but instead, will be required to remit certain fees to the CPA.

For the specific project subject of the request, CPA requires the bidder to provide the project
requirements at no cost to CPA and to remit a fixed annual fee and percentage variable fee of
the gross receipts of all transactions of services rendered to port stakeholders. In this regard, it
is our considered view that if the project of CPA contemplates a Joint Venture (JV) as defined
above, the rules, guidelines and procedures laid down in the Revised JV Guidelines shall be
observed, and not the provisions of RA 9184 and its associated issuances.

Non-Policy Opinions
2016-12-28
NPM No. 128-2016
Requesting Entity: City Government of Baguio
Issues Concern: Post-Qualification Documents; Period for the Conduct of Competitive Bidding

Details
1. Whether or not the requirement for the submission of additional documents during
post-qualification is proper

The City Government of Baguio may require the submission of documentary requirements as
stated in the Bidding Documents provided that the same are licenses or permits which are
required under the law. Thus, if part of the post-qualification requirements of the City
Government of Baguio includes the submission of clearances, permits or certifications issued
by the different agencies of the government, the same should be appropriate licenses and
permits required under the law and not merely to aid the Procuring Entity (PE) or the Bids and
Awards Committee in verifying the eligibility of the bidder.

We note that the additional documents being prescribed are those that would ensure
compliance with labor laws and social legislations. In this regard, we refer you, for proper
guidance, to Government Procurement Policy Board (GPPB) Circular No. 01-2008, dated 7
March 2008, clarifying the rules regarding the adoption of additional eligibility and technical
documents to ensure compliance with labor laws and other social legislation.

2. Whether or not the PE can proceed with the procurement beyond the three (3) month
period

Should the PE decide to extend the periods on procurement, it must show and provide
compelling, sufficient, valid, reasonable, and justifiable cause for such extension. Such valid
justification, however, will only free officials from penal sanction or liability, but not from
applicable administrative and civil sanctions or liabilities under existing laws, rules and
regulations.

2016-12-06
NPM No. 126-2016

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Requesting Entity: Department of Agrarian Reform (DAR)
Issues Concern: Nature of Business of Supplier

Details
1. Whether or not goods/services that are the subject of procurement should be included
in the "line of business" of the suppliers` Bureau of Internal Revenue (BIR) Certificate of
Registration and Mayor`s Permit

It is necessary for the Bids and Awards Committee (BAC) to determine whether the Mayor`s
Permit and BIR Certificate of Registration issued to the supplier authorizes it to engage in the
business stated therein, such that a finding to the contrary would amount to non-compliance
by the bidder and will result to its disqualification. A prospective bidder`s business as stated in
the Mayor`s Permit should at the very least be similar to the project to be bid.

2. Whether or not a supplier registered as "trading firm" qualify to submit bids for
goods/services under Shopping or Small Value Procurement

Sections 52 and 53.9 of the revised Implementing Rules and Regulations of Republic Act No.
9184 prescribed the rules on Shopping and Small Value Procurement. The Guidelines do not
prohibit nor prescribe that suppliers engaged in the business of trading from qualifying to
submit bids for supply of goods or services under the alternative modalities of Shopping and
Small Value Procurement. So long as the bidders engaged in trading business are qualified
under the guidelines, such supplier may not be prohibited from submitting its bid under these
alternative modes of procurement.

3. Whether or not there is a need to conduct an on-site inspection of the office/place of


business of suppliers to determine their capability to deliver and confirm the availability of
goods to be procured.

The act of the procuring entity in verifying, validating, and ascertaining the conformity of the
goods/equipment to be delivered with the technical specifications is in accordance with the
verification of technical requirements mandated under the rules for post-qualification. If, on
the scheduled date of inspection, the bidder fails to present the subject equipment for
examination or evaluation without justifiable cause, the BAC has the prerogative to declare the
bidder post-disqualified for failure to comply with the requirements.

2016-12-06
NPM No. 124-2016
Requesting Entity: Southern Rock Construction and Supply
Issues Concern: Exemption from the Single Largest Completed Contract Requirement under
Small B category

Details
Whether a newly established contractor with no work experience can be declared eligible in
accordance with Section 23.5.2.5 of the 2009 Implementing Rules and Regulations (IRR) of
Republic Act (RA) No. 9184

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Philippine Contractors Accreditation Board (PCAB) Circular No. 001, being the most recent
issuance of PCAB on the matter, should be used in determining a bidder’s (Allowable Range of
Contract Cost) ARCC. Considering that PCAB Circular No. 001 provides that the ARCC for Small
B contractors is Php15,000,000.00, Small B contractors without the required SLCC may be
allowed to bid on government infrastructure projects with an Approved Budget for the Contract
that does not exceed Php7,500,000.00 (50% of Php15,000,000.00) in accordance with Section
23.5.2.5 of the revised 2009 IRR of RA 9184.

2016-12-06
NPM No. 122-2016
Requesting Entity: Local Government Unit of Tagbilaran
Issues Concern: Exceptional Cases in Post-Qualification

Details
What are the exceptional cases in post-qualification that may extend the period of post-
qualification from seven (7) days to thirty (30) days

The determination of what constitutes an exceptional case warranting the extension of post-
qualification period, e.g., when the procurement requires an elaborate testing involving an
equipment sourced from abroad, lies within the sound discretion of the Head of the Procuring
Entity taking into consideration the nature and complexity of the procurement project.

2016-12-06
NPM No. 120-2016
Requesting Entity: Land Transportation Office (LTO) - Region I Department of Labor and
Employment (DOLE)
Issues Concern: DOLE DO No. 150-16

Details
Clarification on the application of the provisions of DOLE Department Order (DO) No. 150-16,
dated 9 February 2016, entitled Revised Guidelines Governing the Employment and Working
Conditions of Security Guards and other Private Security Personnel in the Private Security
Industry

Similar to the 10% administrative fee imposed under Section 9(b)(ii) of DOLE DO No. 18-A, the
20% administrative fee provided for under Section 4 of DOLE DO No. 150-16 is also a percentage
rate that has for its effect the fixing of a floor price on Service Agreements. In this regard and
following the position of the Government Procurement Policy Board (GPPB) as stated and
explained in the following GPPB issuances, namely: GPPB Resolution (Res.) No.14-2012 dated
1 June 2012; GPPB Res. No. 14-2015 and GPPB Circular No. 04-2015, both dated 30 April 2015;
and Policy Matter Opinion Nos. 03-2012 dated 30 November 2012 and 02-2013 dated 11 April
2014, as well as the case of Philippine Sports Commission, et. al. vs. Dear John Services, Inc.
(G.R. No. 183260 dated 4 July 2012), we are of the opinion that Section 4 of DOLE DO No. 150-
16, insofar as it imposes a minimum administrative fee of 20% of the total contract cost for

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Service Agreement for security services, likewise runs counter to the provision of Section 31 of
Republic Act No. 9184 and its 2016 Revised Implementing Rules and Regulations.

2016-12-06
NPM No. 118-2016
Requesting Entity: Department of Agrarian Reform (DAR) - Benguet
Issues Concern: Notice to Proceed

Details
Whether there is any violation committed if the date of the Notice to Proceed (NTP) is earlier
than the date of the contract

Although the date of the NTP is different from the date of its issuance, it is incumbent upon the
procuring entity to ensure that no NTP shall be issued unless the contract it seeks to execute is
already signed and approved by the appropriate approving authority in accordance with
Section 37 of Republic Act No. 9184 and its 2016 Revised Implementing Rules and Regulations.

2016-12-06
NPM No. 116-2016
Requesting Entity: Biodiversity Management Bureau
Issues Concern: Technical Specifications

Details
Whether it is allowed to include in the Technical Specifications for the procurement of laptops
the following requirements: "Branded computer laptop must be globally known brand and at
least top five worldwide vendor as per latest 2016 IDC Report."

At the outset, we would like to clarify that the Government Procurement Policy Board and its
Technical Support Office render policy and non-policy matter opinions, respectively, on issues
purely pertaining to the interpretation and application of procurement laws, rules and
regulations. We do not have the authority under law to instruct procuring entities on how to
proceed with their respective ongoing procurement activities. In this regard, we shall limit our
discussion on the relevant procurement rules and regulations pertinent to the issue presented.

The procuring entity cannot specifically indicate as a requirement in the technical specifications
that the goods to be offered by the bidder must be globally known as it runs counter to the
very essence and principle of competition, and to the prohibition against reference to brand
names.

2016-12-06
NPM No. 115-2016
Requesting Entity: Tagum Water District
Issues Concern: Retention Money for Expendable Goods

Details

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Whether the retention money can be released to the supplier of expendable goods short of
one year if the Special Conditions of the Contract (SCC) specifically states that it will only be
released after one year from the date of acceptance.

The Generic Procurement Manual (GPM) for Goods clarified that if the warranty period is longer
than the minimum period of three (3) months for supplies and one (1) year for equipment, the
period beyond the minimum period need not be covered by retention money or special bank
guarantee. After the lapse of the minimum period, the Procuring Entity must release the
retention money or special bank guarantee provided that the goods supplied are free from
patent and latent defects and all the conditions imposed under the contract have been fully
met.

2016-12-06
NPM No. 114-2016
Requesting Entity: Macaraig Law Office
Issues Concern: Non-Refundable Protest Fee

Details
Request for refund of Protest Fee after obtaining a favorable resolution on the Protest filed

The nature of the protest fee determined by the law itself as non-refundable, and the
fundamental principles in disbursement of public funds, limits the authority of the procuring
entity to effect the return of the protest fee paid for by the bidder, notwithstanding the result
of the protest.

2016-12-06
NPM No. 113-2016
Requesting Entity: Leyte Normal University (LNU)
Issues Concern: Adjacent or Contiguous Infrastructure Projects

Details
Whether the Negotiated Procurement (Adjacent or Contiguous) under Section 53.4 of the 2016
revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 modality may
only be resorted to only once for a specific project.

The 2006 edition of the Manual of Procedures for Infrastructure Projects provides that the
Adjacent or Contiguous modality can only be undertaken once for a particular ongoing
infrastructure project.

Accordingly, Negotiated Procurement under the Adjacent or Contiguous modality, as


sanctioned by Section 53.4 of the 2016 IRR of RA 9184, may be resorted to only when all the
conditions are complied with. Moreover, the procuring entity may only resort to Adjacent or
Contiguous modality once for a specific project as provided for under the 2006 edition of
Manual of Procedures for Infrastructure Projects.

2016-12-06

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NPM No. 112-2016
Requesting Entity: National Housing Authority (NHA)
Issues Concern: Revision of Terms of Reference; Eligibility Documents for SVP

Details
1. Whether or not the Bids and Awards Committee (BAC) may revise the Terms of
Reference with a condition that the winning bidder undertakes to submit an affidavit that it has
no tax liability with the Bureau of Internal Revenue (BIR) and that it will submit its Tax Clearance
before the final payment in the conduct of Small Value Procurement (SVP)

If based on the BAC`s findings, the requirement on the submission of the Tax Clearance in the
conduct of SVP for the project is the reason for the failed procurement, the BAC may revise the
Terms of Reference or the requirement for Tax Clearance with a condition that the winning
bidder undertakes to submit an affidavit that it has no tax liability with the BIR and that it will
submit its Tax Clearance before the final payment, provided such revision is in accordance with
the documentary requirements for SVP.

2. Whether or not the BAC has the discretion to change the list of eligibility documents to
be submitted for SVP since no bidder can submit its Tax Clearance Certificate from the BIR.

The procuring entity is given a wide discretion on the documents that will be submitted by the
consultant to prove that it is technically, legally and financially capable to execute the
procurement at hand. This does not however absolve the procuring entity from validating or
determining if it is entering into an agreement with a capable and legitimate consultant. The
procuring entity is still bound to exercise due diligence in contracting with the consultant
through the documents to be submitted by the latter.

Please note, however, that Appendix A of the Consolidated Guidelines for Alternative Methods
of Procurement or Annex "H" of the 2016 revised Implementing Rules and Regulations of
Republic Act No. 9184 prescribes the documents that the BAC shall require from suppliers,
contractors and consultants for Alternative Methods of Procurement. The BAC shall indicate in
the Request for Quotation or Request for Proposal at what stage of the procurement process
the documents shall be submitted, i.e. submission of offer/s, evaluation of offer/s, before
issuance of Notice of Award or prior to payment.

2016-12-06
NPM No. 111-2016
Requesting Entity: Indang Water District
Issues Concern: BAC Composition; Honoraria

Details
Which position/s in a local water district satisfies the requirement of third level ranking official
for membership to the Bids and Awards Committee (BAC) in accordance with Section 11 of
Republic Act (RA) No. 9184 and its 2016 revised Implementing Rules and Regulations (IRR)?

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A PE`s compliance with the rank requirement under Section 11.2.2 of RA 9184 and its IRR for
its BAC composition and membership is based on the term "permanent" as defined in the
above-mentioned provision. The term "permanent" refers to a plantilla position within the PE
concerned. Hence, it is the plantilla of the agency that will define whether the position qualifies
for regular BAC membership, and the determination of ranking should take into consideration
the hierarchy of the plantilla positions present in the PE. It does not qualify whether the person
occupying plantilla position is contractual, regular, or temporary, but rather the concern
specifically refers to whether the position exists within the organizational structure of the PE.
In a previous opinion, we have clarified that only officers occupying either second or third
ranking permanent positions may be designated as BAC Chairperson, while any officer holding
a lower position cannot be designated as such.

Can an employee, designated as Division Head, with a Salary Grade Sixteen (SG-16), be assigned
as the Chairperson of the BAC?

It is the plantilla position in the organizational structure of the PE that determines whether an
official is eligible to become a member of the BAC. Hence, she may be appointed as BAC
Chairperson or a member, as the case may be, provided that she is occupying the appropriate
position with the corresponding rank within the organizational structure of the PE pursuant to
Section 11 of RA 9184 and its 2016 revised IRR.

Thus, an employee occupying a SG 16 position is eligible to become a BAC Chairperson for as


long as the office he is currently occupying or the position of Division Head to which he is
designated is a third ranking existing plantilla position of the Local Water District.

Can the BAC be given Honoraria sourced from the fund of the Procuring Entity (PE) after a
successful award of contract if there are no proceeds from the sale of bidding documents?

The PE may grant Honoraria only from the sources enumerated in DBM BC Nos. 2004-5A and
2007-3. Absent such funds, Honoraria cannot be provided to BAC members.

2016-12-06
NPM No. 110-2016
Requesting Entity: Philippine Atmospheric, Geophysical and Astronomical Services
Administration (PAGASA)
Issues Concern: Mixed Procurement

Details
Whether the procurement method adopted by the PAGASA-Bids and Awards Committee
(PAGASA-BAC) for consulting services is in accordance with the provisions of Republic Act (RA)
No. 9184 and its Implementing Rules and Regulations (IRR)

The procuring entity, guided by the relevant provisions of RA 9184 and its IRR, has the
responsibility to determine the nature of procurement, i.e., goods, infrastructure projects or
consulting services, based on the identified primary purpose of the contracts.

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As regards the Bidding Documents for mixed procurement, Section 17.2 of the 2016 Revised
IRR of RA 9184 provides that the Procuring Entity shall specify in the Bidding Documents the
requirements, criteria and other conditions of the bidding procedures and of the ensuing
contract as applicable to each component of the project.

2016-12-06
NPM No. 109-2016
Requesting Entity: Department of Science and Technology (DOST)
Issues Concern: Delegation to the Technical Working Group of the Site Visit During Post
Qualification; Small Value Procurement

Details
Is the Bids and Award Committee (BAC) in violation of Section 32.1 of RA 9184 and its IRR when
it authorizes its Technical Working Group (TWG) to visit a supplier during post qualification for
validation of submitted documents prior to award of the contract?

This act of the procuring entity of verifying, validating, and ascertaining the conformity of the
goods/product to be delivered with the technical specifications is in accordance with the
verification of technical requirements mandated under the rules for post-qualification. If, on
the scheduled date of inspection, the bidder fails to present the subject equipment for
examination or evaluation without justifiable cause, the BAC has the prerogative to declare the
bidder post-disqualified for failure to comply with the requirements.

In sum, the "No Contact" Rule applies to making or accepting any communication with any
bidder regarding the evaluation of their bids. On the other hand, the conduct of inspection of
the premises or the testing of goods offered by the bidder as part of post qualification, is a part
of the verification process to ensure that the bidder complies with all the legal, technical and
financial requirements and specifications indicated in the bidding documents, hence, not
violative of the "No Contact" Rule

Is Small Value Procurement the appropriate mode of procurement for acquisition of laptops?

For guidance, Section 52.2 of the 2016 revised IRR provides that the phrase "ordinary or regular
office supplies" includes those supplies, commodities, or materials which are necessary in the
transaction of official business and consumed in the day-to-day operations. An examination of
the mandate of the Department of Science and Technology under Executive Order No. 128
alongside the definition of the phrase "ordinary or regular office equipment" shows that laptop
computers may be considered as such as they are necessary in the transaction of DOST`s official
businesses, as well as in its day-to-day operations. Hence, in the event that the laptop
computers needed by the DOST are not available from the Procurement Service, and the
amount for which does not exceed the prescribed threshold, the same may be procured
through Shopping under Section 52.1(b). As such, the procurement of which shall follow the
procedures prescribed in Section 52.1(b) and Annex "H" of the 2016 revised IRR.

2016-12-06
NPM No. 108-2016

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Requesting Entity: Municipality of Trinidad
Issues Concern: Applicability of RA 9184 in the River Rehabilitation Project with "Zero" ABC

Details
Whether or not Republic Act No. (RA) 9184 is applicable in the river rehabilitation project in
your municipality which will entail no cost on the part of the municipality

If an acquisition does not involve expenditure of funds in relation to an identified appropriation,


RA 9184 and its revised Implementing Rules and Regulations (IRR) do not apply. In line with
this, Section 4.4 of the revised IRR states that it shall not apply to activities involving public-
private sector infrastructure or development projects and other procurement covered by RA
6957, as amended by RA 7718, except those portions financed by the government.

In case of projects where the government entity partners with the private sector entity, where
the latter shoulders the cost or where the former is set to earn or profit rather than spend
public funds, commonly termed as Public-Private Partnership (PPP), it is advisable to look into
the applicability of the BOT Law.

Also, Section 35 of the 1991 Local Government Code (LGC) provides that local government units
(LGUs) may enter into joint ventures and such other cooperative arrangements with the private
sector to engage in the delivery of certain basic services, capability-building and livelihood
projects, and to develop local enterprises designed to improve productivity and income,
diversify agriculture, spur rural industrialization, promote ecological balance, and enhance the
economic and social well-being of the people. Thus, it is recommended for the LGU to look into
the applicability of the relevant provisions of the LGC in case it enters into a joint venture with
the project proponent.

2016-12-06
NPM No. 107-2016
Requesting Entity: All Transport Network International Freight Forwarder
Issues Concern: Submission of Copies of Eligibility Requirements during the Bid Opening

Details
Legal opinion on the decision of the Philippine Postal Corporation (PPC) to disqualify All
Transport Network Inc. (ATN) for its failure to present the original eligibility documents during
the bid opening for the procurement of service for carriage of mail.

The Government Procurement Policy Board (GPPB) and its Technical Support Office (TSO) has
no jurisdiction to rule over actual controversies with regard to the conduct of bidding of
procuring entities since it has no quasi-judicial function under the law. Hence, this office has
consistently refrained from passing upon decisions of the BAC or the procuring entities relative
to its procurement activities.

As regards your query, x x x Procuring Entities (PEs) cannot require the submission of originals
as the rules allow the submission of copies to be sufficient. This is clear under Section 25.1 of
the 2016 Revised Implementing Rules and Regulations (IRR) where the prospective bidder or

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its duly authorized representative must submit a Sworn Statement that each of the documents
submitted is an authentic copy of the original in satisfaction of the bidding requirements. Thus,
PEs cannot impose upon the bidder the additional requirement of having to present the original
copies of the eligibility documents for comparison, as it can verify, validate, and ascertain the
authenticity of the submitted copies through other means during post-qualification.

2016-12-06
NPM No. 106-2016
Requesting Entity: Department of Social Welfare and Development (DSWD)
Issues Concern: Honoraria for Job Order Employees

Details
Whether the Job Order (JO) employees are entitled to receive Honoraria when they are
designated members of the Technical Working Group (TWG), in addition to their regular
functions outside the procuring units of the Office

Personnel duly assigned as chair or member of the TWG may be entitled to the payment of
honoraria for successfully completed projects regardless of whether the personnel is occupying
a plantilla position, or is engaged under a Contract of Service or JO. This notwithstanding, we
refer you to the Department of Budget and Management, as the issuing agency of the cited
Budget Circulars, for a more authoritative response on the matter.

2016-12-06
NPM No. 105-2016
Requesting Entity: Municipality of Boac
Issues Concern: Format of Statement of All Ongoing Government and Private Contracts

Details
Whether or not the non-conformance to the standard or prescribed form of Statement of all
ongoing government and private contracts is a ground to post disqualify a bidder with the
lowest calculated bid (LCB).

The Statement of ongoing and completed contracts prescribed in the Philippine Bidding
Documents is part and parcel of the bidder`s bid, and being a standard form under existing
rules, it should then conform to the template provided by the GPPB. This is in accord with the
requirement under Section 6.2 of the IRR of RA 9184 that the use of standard forms, once issued
by the GPPB, shall be mandatory upon all procuring entities.

Failure of the bidder to comply with the prescribed template despite this being included in the
Philippine Bidding Documents is a cause for the bidder`s ineligibility or disqualification. In this
case, the bidder`s non-compliance with form of Statement of ongoing and completed contracts
as prescribed in the Bidding Documents is a ground for its post disqualification.

016-12-06
NPM No. 104-2016
Requesting Entity: Department of Interior and Local Government

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Issues Concern: Submission of Expired PCAB License

Details
Whether the Bids and Awards Committee (BAC) aptly declared the ineligibility of two (2)
prospective bidders for their submission of an expired Philippine Contractors Accreditation
Board (PCAB) license

A PCAB license as an eligibility requirement for the procurement of infrastructure projects


under Section 23.1 (a) (iv) of the revised Implementing Rules and Regulations (IRR) of Republic
Act (RA) No. 9184 should be valid at the time of the deadline for the submission and opening
of bids. In the case at hand, the bidders should have submitted a PCAB license that is valid as
of the date of the deadline for the submission of bids and bid opening.

Likewise, Government Procurement Policy Board Resolution No. 02-2015 applies only to the
submission of the bidder`s recently expired Mayor`s Permit and the Official Receipt as proof
that the bidder has applied for renewal of the permit within the prescribed period in
compliance with the requirements under Section 23 of the revised IRR of RA 9184. It does not
include the submission of an expired PCAB license and the corresponding proof of renewal
thereof in lieu of a valid PCAB license.

2016-11-15
NPM No. 103-2016
Requesting Entity: Mr. Jeremy Bayan
Issues Concern: Withdrawal of Performance Security

Details
Whether a winning bidder who is found to have submitted fraudulent eligibility documents may
be allowed to withdraw its Performance Security after the issuance of the Notice to Proceed
(NTP) but prior to delivery of the subject matter of the contract.

A Performance Security is a guarantee that the winning bidder will faithfully perform its
obligations under the contract in accordance with the Bidding Documents, it shall post a
Performance Security prior to the signing of the contract.

Upon submission of the Performance Security, and the subsequent execution of the contract
and issuance of the NTP, the Performance Security may not be withdrawn by the winning bidder
as it already operates to guarantee the existing contract between the contracting parties.

Accordingly, the winning bidder may not be allowed to withdraw its Performance Security after
the issuance of the Notice to Proceed because it stands to guarantee the contract entered into
by the procuring entity and the winning bidder.

2016-11-15
NPM No. 102-2016
Requesting Entity: Department of Public Works and Highways (DPWH)

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Issues Concern: Delegation of Authority

Details
Which procurement documents subject to the approval by the Head of the Procuring Entity
(HOPE) can be delegated

The Head of the Agency, as the designated HOPE, may delegate its functions such as the
approval of the following documents: (1) Annual Procurement Plan, (2) recommendation to
award a contract and Notice of Award, (3) recommendation to resort to alternative methods
of procurement and (4) recommendation for the imposition of administrative sanctions, among
others, in accordance with Republic Act No. 9184 and its associated 2016 Revised Implementing
Rules and Regulations, or any other function as it may deem necessary in accordance with
Executive Order No. 292. The decision, however, to delegate such functions solely depend on
the sound discretion of the Head of the Agency taking into consideration the aspects of
economy, efficiency and accountability, and the need to effectively implement plans and
programs of the Department.

2016-11-15
NPM No. 101-2016
Requesting Entity: Tagkawayan Water District
Issues Concern: PhilGEPS Posting for Negotiated Procurement (Two Failed Biddings) under
Section 53.1 of the Revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184

Details
Whether posting of the Request for Quotations (RFQs) in the PhilGEPS website is necessary
when Negotiated Procurement (Two Failed Biddings) under Section 53.1 of the IRR of RA 9184
is resorted to.

The 2016 Revised Implementing Rules and Regulations (2016 IRR) of RA 9184 was published on
29 August 2016 in the Official Gazette and took effect sixty (60) days after its publication or on
28 October 2016. Hence, in case the subject procurement activity is to be posted on or after 28
October 2016, the provisions of the 2016 IRR shall take effect, otherwise the old rules will apply.
In this regard, please be guided that the period for posting of RFQs has been reduced to three
(3) calendar days in accordance with the amendment of Section 54.2 under the 2016 IRR.

2016-11-15
NPM No. 100-2016
Requesting Entity: Commission on Higher Education (CHED)
Issues Concern: BAC Membership

Details
1. Is a member of the Bids and Awards Committee (BAC) with a plantilla of Chief Position
(Salary Grade 24) who is designated as Officer-in-charge (OIC) Director IV of the Legal Legislative
Service, which is equivalent to fifth ranking officer of CHED compliant with the requirement of
Section 11 of revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184?

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The determining factor for regular membership in the BAC is not the employment status of the
person but the position he is holding. Thus, notwithstanding appointment status as OIC of the
Legal Legislative Service, as long as such position is considered as a fifth ranking position in the
approved organizational structure, the personnel may be validly designated as BAC member
pursuant to Section 11.2 of the revised IRR.

2. Can the Head of the Procuring Entity (HOPE) designate the said OIC Director as a member
of the BAC based on trust and confidence?

The HOPE has the discretion to designate the BAC member as long as he has complied with the
qualifications prescribed under Sections 11.2.1, 11.2.2 and 11.2.3 of the IRR of RA 9184 and
unless sooner removed for a cause, the BAC members shall have a fixed term of one (1) year,
reckoned from the date of appointment, renewable at the discretion of the HOPE.

2016-11-15
NPM No. 099-2016
Requesting Entity: Bureau of Soils and Water Management (BSWM)
Issues Concern: Lease Agreement; Purchase Order; Authority to Procure Vehicles

Details
Whether there is an existing Guidelines on the procurement of field or laboratory equipment
through lease agreement.

There exists no specific guidelines on the procurement of field or laboratory equipment through
lease agreement, the relevant provisions on competitive bidding and alternative methods of
procurement under RA 9184 and the 2016 revised Implementing Rules and Regulations remain
applicable depending on the circumstances at hand.

Whether the issuance of a Purchase Order (PO) instead of a contract is sufficient for Negotiated
Procurement under two-failed biddings modality.

The contract may be embodied in the form of a Purchase Order. A Purchase Order will
constitute an accepted offer that will give rise to a perfected contract when the winning bidder
received the same and agreed to its terms and conditions, and the bidder acted upon it.

Whether there is a need to secure an authority to procure vehicles from the Office of the
President (OP) if the funds are released to the agency under the General Appropriations Act
(GAA).

The procuring entity shall secure the appropriate authority to purchase vehicles based on
Budget Circular No. 2010-2 (Guidelines on the Acquisition and Use of Government Motor
Vehicles) issued by the DBM, as revised by Budget Circular 2016-5.

2016-11-15
NPM No. 098-2016

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Requesting Entity: Boston Home Inc.
Issues Concern: Authentication of Documents Written in Foreign and English Language

Details
Whether a document written both in the English language and another foreign language needs
to be authenticated by a Philippine foreign service establishment/post or the equivalent office
having jurisdiction over the foreign bidder`s affairs in the Philippines

As the documents are already written in English, it is not required to be certified by the
appropriate embassy or consulate of the Republic of the Philippines or the equivalent office
having jurisdiction in the foreign bidder`s affairs here in the Philippines when submitted as part
of the eligibility documents under Section 23 of the 2016 Revised Implementing Rules and
Regulations of Republic Act No. 9184. To reiterate, the requirement for certification is limited
to documents that are originally written in a non-English foreign language and are consequently
translated to the English language.

016-11-15
NPM No. 097-2016
Requesting Entity: Social Security System
Issues Concern: Alternative Bids

Details
Whether or not the agency may consider the two price quotations submitted by one supplier
for the procurement of sacks of rice.

The submission by the bidder of two price quotations constitutes an alternative bid
contemplated in the aforementioned definition. R.A. No. 9184 and its IRR are governed by the
principles of competitiveness affording equal opportunity to enable eligible and qualified
parties to take part in public bidding. Submitting alternative bids hampers this principle since
submission of different bids for a single procurement amounts to manipulation of bid prices to
the detriment of other bidders who may be able to provide a bid proposal that may be more
advantageous to the government.

2016-11-15
NPM No. 096-2016
Requesting Entity: Philippine Deposit Insurance Commission (PDIC)
Issues Concern: PhilGEPS Registration

Details
Whether the Bank of International Settlements (BIS) may be exempt from the Philippine
Government Electronic Procurement System (PhilGEPS) registration under the concept of
exemption granted to United Nations (UN) agencies as provided in Section 54.6 of the revised
Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184

The procurement of the Financial Stability Institute (FSI) Connect Tutorials does not fall as
procurement from the specialized agencies of the UN. As disclosed, FSI Connect Tutorials is a

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"compendium of lessons relevant to banking and insurance regulators based on the latest
issuances of international standards set by international banking communities." Thus, it does
not involve the procurement from any UN of small quantities of off-the-shelf goods for
education and health; neither does it cover specialized products with limited number of
suppliers. Further, BIS is not one of the listed specialized UN Agencies enumerated under the
UN system.

Compliance with PhilGEPS registration is a requirement which is considered as mandatory


except for methods of procurement specifically exempted under the revised IRR. In this view,
BIS must be registered with PhilGEPS in compliance with Sections 8.5.1 and 54.6 of the revised
IRR of RA 9184.

2016-11-15
NPM No. 095-2016
Requesting Entity: Social Security System Luzon South Division 2
Issues Concern: Alternative Bids

Details
Validity of Submitting Alternative Bids

A bid with options is considered an alternative bid regardless of whether said bid proposal is
contained in a single envelope or submitted in two (2) or more separate bid envelopes.

Instructions to Bidders (ITB) Clause 14 of the Philippine Bidding Documents is instructive that
Alternative Bids shall be rejected in line with the general principle that improvement of bids or
alternative bids shall not be allowed. This practice defeats the concept of competition among
the bidders. The bidder who offers alternate bids has undue advantage over other bidders
when he will be allowed to pose two bids, thus eliminating competition.

Notice to Losing Bidder

RA No. 9184 and its revised IRR do not provide rules for the notification of bidders as to the
result of the bid evaluation. However, in the event of post-disqualification of the bidder with
the Lowest Calculated Bid (LCB), Section 34.5 of the revised IRR dictates that the BAC shall
immediately notify the bidder in writing that it was post-disqualified and the grounds relied
upon by the BAC for the disqualification. Relative to this, please be further advised that GPPB
issued Circular No. 03-2012 dated 17 August 2012, which provides guidelines on the process of
post qualification and notification of bidders determined by the procuring entity to be post-
disqualified.

Disposal of Sample/Tested Items or Products

RA 9184 and its revised IRR are silent on the disposal of items or products that has been
presented for testing. Nonetheless, please be guided that the items or products tested or
supplied for inspection may be returned or disposed provided that an award has already been

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made and no Motion for Reconsideration has been filed by non-winning bidder or a waiver of
such right has been made

2016-11-15
NPM No. 094-2016
Requesting Entity: National Irrigation Administration (NIA) Magat River Integrated Irrigation
System
Issues Concern: Submission of Special Power of Attorney

Details
Whether the NIA Administrator may validly issue a Memorandum Circular which prohibits the
use of a Special Power of Attorney (SPA) in the biddings of NIA Projects

In the case of a sole proprietorship where the general manager or the sole proprietor himself
submits the bid for the company, an affidavit stating that the fact of his representation in the
company, and that he possesses the authority to represent and bind the same may be
considered sufficient compliance to the subject requirement. On the other hand, if a person
other than the general manager or sole proprietor submits a bid for or represents the company,
a SPA delegating such authority to the person is sufficient. Failure to submit a document to this
effect will merit a rating of "failed" for the subject requirement, and disqualifies the bidder.

As to the propriety of the issued Memorandum Circular No. 52, the directive does not augur
well with the provisions of Republic Act (RA) No. 9184 specifically on the matter of competition
and efficiency. In addition, such issuance limits the bidder`s capacity to act, which could very
well be addressed by the Law on Agency, particularly the use of the SPA. Nonetheless, Section
25.3 of the 2016 revised Implementing Rules and Regulations of RA 9184 provides that the
Omnibus Sworn Statement executed by the bidder, or its duly authorized representative, in
case of sole proprietorship shall be accompanied by the duly notarized SPA.

2016-11-15
NPM No. 092-2016
Requesting Entity: Securities and Exchange Commission (SEC)
Issues Concern: Negotiated Procurement - Two Failed Biddings Modality

Details
Whether it is possible to request a bidder to conduct a system demonstration that is not part
of the Terms of Reference or Bidding Documents, and failure to comply with the requirement
can be used as a ground to disqualify the bidder

A procuring entity cannot request a bidder to conduct a system demonstration if it is not


required or allowed in the Terms of Reference or Bidding Documents. Imposing additional
requirement that is not posted or communicated through the Bidding Documents and
disqualifying a bidder for non-compliance therewith are both inconsistent with the principles
of competition and transparency being espoused by Republic Act No. 9184 and its
Implementing Rules and Regulations. Thus, for Two Failed Biddings modality of Negotiated
Procurement, the contract may be awarded to the lowest or single bidder provided that its

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offer meets the minimum technical requirements and does not exceed the Approved Budget
for the Contract.

2016-11-15
NPM No. 091-2016
Requesting Entity: PEA Tollway Corporation (PEATC)
Issues Concern: Two-Failed Biddings; Foreign Bidders

Details
Competitive Bidding as Default Method of Procurement Negotiated Procurement; Two-Failed
Biddings Modality

Being the default method of procurement, a procuring entity may still conduct competitive
bidding after the occurrence of a second failure of bidding. However, should there occur two
(2) failures of bidding due to any of the grounds under Section 35 of RA 9184 and its IRR, the
BAC may resort to Two-Failed Biddings Negotiated Procurement modality under Section 53.1
of the 2016 Revised IRR of RA 9184 upon prior approval of the HOPE, in order to promote
economy and efficiency, subject to the provisions of the Consolidated Guidelines for the
Alternative Methods of Procurement

Foreign Suppliers

In the procurement of goods, a procuring entity may only consider local suppliers for award of
procurement contract, whether through Competitive Bidding or any alternative method of
procurement. As an exception, foreign bidders can participate in the procurement of goods
when any of the conditions under Section 23.4.1.2 of the 2016 Revised IRR of RA 9184, subject
to the provisions of the Guidelines in the Determination of Eligibility of Foreign Suppliers,
Contractors, and Consultants to Participate in Government Procurement Projects.

2016-11-15
NPM No. 090-2016
Requesting Entity: Palompon Institute of Technology
Issues Concern: SUC VP for Administration as BAC Chairperson

Details
Whether the Vice President for Administration and Finance (VPAF) is qualified to be the
Chairman of the University’s Bids and Awards Committee (BAC)

A faculty member with an academic rank of Associate Professor II who was designated as the
Vice President for Administration may be appointed as BAC Chairperson, provided that the
position of Vice President for Administration to which he has been designated is at least 3rd
ranking permanent position in the University and such faculty member possesses all the
qualifications and none of the disqualifications under existing laws, rules and regulations, i.e.,
the faculty member ranked Associate Professor II is a person of unquestionable integrity and
procurement proficiency occupying a third ranking permanent position within the Procuring
Entity (PE) and who is not an approving authority of the PE concerned.

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2016-11-15
NPM No. 089-2016
Requesting Entity: Philippine Commission on Women (PCW)
Issues Concern: Department of Labor and Employment (DOLE) Department Order (DO) No. 150-
16

Details
Whether the GPPB ruling contained in its Resolution Nos. 14-2012 and 26-2013 on the
administrative cost for security services contract is still valid, considering that the latest DOLE
Order increased further the administrative cost for security services from 10% of the total
contract price per DOLE DO No. 18-A to 20% of the total contract price per DOLE DO No. 150-
16.

The position of the GPPB, as contained in its Resolution No. 14-2012, was reiterated through
Resolution No. 14-2015 and Circular No. 04-2015, both dated 30 April 2015, and is therefore
still valid and existing.

Whether the BAC shall consider bids from interested bidders where the administrative cost is
lower than what the DOLE Order requires.

Similar to the 10% administrative fee imposed under Section 9(b)(ii) of DOLE DO No. 18-A, the
20% administrative fee provided for under Section 4 of DOLE DO No. 150-16 is also a percentage
imposition that has for its effect the fixing of a floor price on Service Agreements. In this regard
and following the position of the GPPB as stated and explained in the above-mentioned
issuances, as well as the case of Philippine Sports Commission, et. al. v. Dear John Services, Inc.,
we are of the opinion that Section 4 of DOLE DO No. 150-16, insofar as it imposes a minimum
administrative fee of 20% of the total contract cost for Service Agreement for security services,
likewise runs counter to the provision of Section 31 of RA 9184 and its IRR.

2016-11-15
NPM No. 088-2016
Requesting Entity: Fiscal Planning and Reforms Bureau Department of Budget and
Management (DBM)
Issues Concern: Designation of BAC Chairman

Details
Whether the Vice President for Administration and Finance (VPAF) is qualified to be the
Chairman of the University’s Bids and Awards Committee (BAC)

The VPAF may be designated as BAC Chairman, provided that such employee possesses all of
the qualifications and none of the disqualifications provided under existing laws, rules and
regulations. In particular, the Chairperson must be at least a third ranking permanent official of
the Procuring Entity (PE); a person of unquestionable integrity and procurement proficiency;
and, in no case shall be the Head of the Procuring Entity (HOPE), an approving authority, or a

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Chief Accountant or personnel of the Accounting Unit, except as an end-user representative
when the Accounting Unit is the requesting or procuring end-user.

All told, if the VPAF is designated in a position that is at least third ranking within the
organizational structure of the procuring entity, he or she may be designated as the chairman
of the BAC, subject to compliance with the other requirements above-mentioned.
2016-11-15
NPM No. 087-2016
Requesting Entity: Bureau of Corrections (BuCor) Department of Justice (DOJ)
Issues Concern: Procurement of Catering Services

Details
Whether the procurement of catering services for the food subsistence of inmates is a
procurement of expendable or non-expendable goods.

In this particular case, we are of the opinion that the procurement of catering services does not
fall as neither an expendable nor a non-expendable goods, but as a non-personal or contractual
service. As mentioned in your letter and Usec. Baraan`s memorandum, BuCor has no
participation whatsoever with the bidder`s purchase of raw materials, food preparation, hiring
of personnel, etc. and all non-expendable and semi-expendable supplies remain the property
of the caterer and does not add up to the assets of the BuCor. Apparently, tangible goods,
whether expendable or non-expendable, are not the subject of procurement in this case, but
the services of the caterer which include the provision of meals.

016-11-15
NPM No. 086-2016
Requesting Entity: Light Rail Transit Authority (LRTA)
Issues Concern: Contract and Purchase Order

Details
Whether a Contract document or a Purchase Order (PO) is necessary after the issuance of a
Notice of Award (NOA) for the procurement of the Supply and Delivery of Foreign Goods with
a contract amount of PhP 100 Million under the Rehabilitation Project

The receipt by the winning bidder of the NOA is the initial step that leads to the execution of
the contract and the issuance of the Notice to Proceed (NTP.) Hence, the issuance of the NOA
and its receipt by the winning bidder must be accompanied by the actual execution and signing
of the Contract, including the posting of the performance security, among others, for the
contract to be perfected and legally enforceable in accordance with Republic Act (RA) No. 9184
and its associated Implementing Rules and Regulations (IRR.)

A PO, by itself, is an offer to buy, and a meeting of minds thereon "takes place when the vendor
receives the PO, agrees to its terms and acts upon it." Thus, a PO will constitute an accepted
offer that will give rise to a perfected contract of sale when the winning bidder received the
same and agreed to its terms and conditions.

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As a rule, the winning bidder shall formally enter into contract with the Procuring Entity (PE)
within ten (10) calendar days from receipt of the NOA. In the case of government-owned and/or
controlled corporations, the concerned Board shall take action on the said recommendation
within thirty (30) calendar days from receipt thereof. Moreover, the PE shall issue the NTP to
the winning bidder not later than seven (7) calendar days from the date of approval of the
contract by the appropriate authority. Further, the different periods provided by RA 9184
within which certain stages of the procurement process must be completed is not merely
directory but mandatory.

2016-11-15
NPM No. 085-2016
Requesting Entity: DBP Leasing Corporation
Issues Concern: Technical Requirements

Details
Clarification on the proper determination of the Lowest Calculated and Responsive Bid (LCRB)
where one bidder offers better specifications than the other bidder.

Considering that the appreciation of superior specifications will require discretion among the
members of the BAC, we are of the opinion that they cannot be used as measures in any tie-
breaking method, which, on the contrary, requires non-discretionary and nondiscriminatory
measures that are based on sheer luck or chance. Any preference in favor of the supplier that
offered better specifications at the same or higher price would be a blatant violation of the
provisions of RA 9184.

2016-11-15
NPM No. 084-2016
Requesting Entity: City of Manila
Issues Concern: Adjacent or Contiguous

Details
Whether the additional works that you plan to procure may be classified as "adjacent or
contiguous" to your on-going infrastructure project so that you can procure the same through
the corresponding alternative method of procurement

At the outset, it seems that the additional works described as Concrete, Roofing, and Steel
Works should be necessarily part of the original infrastructure project for the construction of a
school building, which must already be usable and structurally sound even without the
additional works to be procured. Thus, we wish to remind you of the prohibition on splitting of
contracts under Section 54.1 of the 2016 Revised Implementing Rules and Regulations (IRR) of
Republic Act (RA) No. 9184.

Assuming arguendo that the subject contract to be negotiated are only additional works to the
foregoing, Negotiated Procurement under the Adjacent or Contiguous modality, sanctioned by
Section 53.4 of the IRR of RA 9184, may be resorted to only when all the conditions under the
said provision are complied with and the determination of the existence of the conditions

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warranting resort to any of the alternative methods of procurement falls solely within the ambit
of the authority and accountability of the Procuring Entity.

2016-11-15
NPM No. 083-2016
Requesting Entity: Commission on Audit-Cordillera Administrative Region
Issues Concern: Bid Security

Details
Whether it would be a violation of Section 27.2 of the revised Implementing Rules and
Regulations (IRR) of Republic Act (RA) No. 9184 and GPPB Resolution No. 03-2012 for a
Procuring Entity (PE) to require the submission of two forms of bid security from its bidders,
which include any of the forms under Sec. 27.2 above, and an additional Bid Securing
Declaration (BSD).

To illustrate, the PE shall include BSD as one of the choices; the other form of bid security may
be Cashier`s Check (or Cash, Manager`s Check, Bank Draft/Guarantee, Irrevocable Letter of
Credit, Surety Bond, or combination of the identified forms). The prospective bidder shall post
ONLY ONE (1) FORM of bid security, a BSD OR Cashier`s Check as its bid security. Accordingly,
the prospective bidder is required only to post one (1) form of bid security, in this example, it
could either be a BSD OR Cashier`s Check.

Thus, bidders are not required to post two (2) forms of bid security. And this is all the more true
in the current 2016 revised IRR, where the PEs can no longer limit the acceptable forms of bid
security into two. Ultimately, the bidder has the discretion and choice as to what form of bid
security it shall post. Accordingly, it is a violation of the rules to require two forms of bid security
from the bidders.

2016-11-15
NPM No. 082-2016
Requesting Entity: Province of Zambales
Issues Concern: Pakyaw Contracting System

Details
1. Whether a single invitation may contain multiple pakyaw contracting opportunities

A Procuring Entity (PE) undertaking pakyaw labor contracting need not comply with the
formalities required under the Implementing Rules and Regulations (IRR) of Republic Act (RA)
No. 9184. Moreover, there is no form prescribed under the Revised Guidelines for the
Implementation of Infrastructure Projects by Administration (Guidelines) to which invitations
for pakyaw contracting must adhere. Hence, the contents of the invitation shall be based on
the sound discretion of the PE.

2. Whether a Bid Securing Declaration is required in pakyaw contracting

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The submission of a Bid Securing Declaration, or any form of Bid Security, is not required in
pakyaw contracting in accordance with the Guidelines. Since pakyaw contracting is not
governed by public bidding rules under the IRR of RA 9184, the submission of eligibility
documents or other documents required in public bidding (i.e. Bid Securing Declaration) need
not be submitted in pakyaw contracting.

3. Whether a Statement of Work Accomplishment (SWA) is necessary to be submitted if


payment is made by lump-sum through the pakyaw group leader, or whether the individual
Daily Time Records (DTRs) of the pakyaw laborers are needed if payment is made through a
payroll system.

In the interest of transparency and accountability in procurement activities and usage of public
funds, pakyaw laborers must be able to substantiate and quantify their accomplishments. In
this regard, the submission of an SWA or DTR, or other similar documents which could validate
their work, must be submitted as a condition for payment. In the absence of such documents,
the PE may not have enough basis to determine whether an individual has rendered service or
not.

2016-11-15
NPM No. 081-2016
Requesting Entity: Philippine Postal Savings Bank (PostBank)
Issues Concern: Delinquent Debtor as Bidder

Details
Whether a delinquent debtor may bid under Negotiated Procurement (Two-Failed Bidding)
under Section 53.1 of the Revised Implementing Rules and Regulations (IRR) of Republic Act
(RA) No. 9184.

Qualifications must be ascertained by the Procuring Entity through documentary requirements


it has required to be submitted. Hence, a bidder may only be disqualified should it fail to comply
with the documentary requirements, or is found to be not technically, legally and financially
capable for the project being procured.

Accordingly, a bidder who has an outstanding debt with the Procuring Entity (a Savings Bank)
is not disqualified by virtue of such obligation. However, in such instance, the Procuring Entity
is cautioned to verify the financial capability of such bidder to undertake the project at hand
based on available information.

2016-11-15
NPM No. 080-2016
Requesting Entity: De Leon Import & Export Corp.
Issues Concern: Failure of the BAC to follow the prescribed bidding procedures; Award of
Contract to the Highest Bidder

Details

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Whether the company was properly disqualified in the bidding activity, and the resulting
contract may be awarded to the remaining bidder, which incidentally submitted the highest bid

Reservation Clause
Section 41(b) of the Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184
allows the Head of the Procuring Entity (HOPE) to reject any and all of the bids if the Bids and
Awards Committee (BAC) failed to follow the prescribed procedures in any of the stages of
Competitive Bidding.

Continuing Review of Qualifications


In accordance with Section 23.7 of the IRR of RA 9184, the Procuring Entity (PE) may review the
eligibility and qualifications of the bidder at any stage of the procurement activity. As such, the
BAC may correct any of its decisions or recommendations if it finds any error upon review.

Award to the Bidder with the Highest Calculated Bid


The bidder who submitted the highest bid may be awarded the contract, provided that the bid
is found to be one with the Lowest Calculated Responsive Bid after undergoing the post-
qualification process pursuant to Section 34 of the IRR. This situation occurs when lower bids
did not pass the post-qualification criteria enumerated in the Bidding Documents.
2016-11-15
NPM No. 079-2016
Requesting Entity: Department of Budget and Management (DBM) Regional Office IX
Issues Concern: Documentary Requirements for Negotiated Procurement (Two-Failed Bidding)

Details
Guidance on the eligibility requirements to be submitted when resorting to Negotiated
Procurement (Two-Failed Bidding) under Section 53.1 of the 2016 revised Implementing Rules
and Regulations (IRR) of Republic Act (RA) No. 9184.

Section V(D)(b)(i) of Annex "H" of the 2016 IRR provides that for Negotiated Procurement (Two-
Failed Bidding), the BAC, after conducting mandatory review of the terms, conditions,
specifications, and cost estimates, may revise and agree on the technical, legal, and financial
eligibility requirements of the procurement activity x x.

In light of such provision, Procuring Entities, in the interest of promoting economy and
efficiency, are now given the discretion to determine which requirements must be submitted
by bidders when resorting to Negotiated Procurement (Two-Failed Bidding) under Section 53.1
of the 2016 IRR. This gives Procuring Entities the authority to choose the eligibility documents
necessary for the project, provided that a mandatory review has been conducted to determine
the adjustments needed to address the previous failure of bidding.

Non-Policy Opinions
2016-11-15
NPM No. 078-2016
Requesting Entity: ICONST Architectural Design Construction and Development (ICONST)
Issues Concern: Contractor`s Performance Evaluation Summary (CPES) Final Rating

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Details
Whether the submission of a CPES Final Rating is a mandatory requirement in the Procurement
of Infrastructure Projects

Section 23.5.2.4 of the Revised Implementing Rules and Regulations of Republic Act No. 9184
expressly requires the submission of a Certificate of Final Acceptance or a CPES Final Rating
and/or Certificate of Completion, which must be satisfactory. These documents ensure that the
project identified in the Statement of Single Largest Completed Contract (SLCC) is not only
completed, but also satisfactorily fulfilled and accepted by the project owner. Accordingly, since
the two documents substantially attest to the status of the identified project, the submission
of either document shall suffice. In other words, in order to substantiate its SLCC, the bidder
may submit either a Certificate of Final Acceptance or a satisfactory CPES Final Rating and/or
Certificate of Completion.

2016-11-15
NPM No. 077-2016
Requesting Entity: Basilan General Hospital
Issues Concern: Disqualification of Blacklisted Supplier in the Procurement of Goods through
Shopping

Details
Whether a blacklisted supplier may be allowed to participate in a procurement activity
conducted through the alternative method of Shopping under Section 53.2 of the revised
Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.

In accordance with Item 3(j) of the Guidelines for Shopping and Small Value Procurement, a
procuring entity must validate whether it is entering into a contract with a technically, legally
and financially capable supplier. In order to determine such qualifications, the procuring entity
may require the submission of relevant documents, or conduct the validation through other
means. The latter includes, but is not necessarily limited to, verifying whether a supplier, upon
submission of its quotation, is included in the list of blacklisted suppliers as posted in the official
website of the GPPB. If the supplier is not included in the list, the procuring entity may accept
and proceed with the evaluation of the quotation received. Otherwise, it shall immediately
disqualify the said supplier.

2016-11-15
NPM No. 076-2016
Requesting Entity: Sultan Kudarat Water District (SKWD)
Issues Concern: Role of Observers

Details
Whether it is necessary for the procuring entity to provide procurement observers with a copy
of the bidding documents and entertain their questions/opinions/comments during the
procurement activities

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To maintain transparency and integrity, Observers may take an active part during the bidding
process by raising valid, reasonable and relevant questions based on the documents provided
by the Bids and Awards Committee (BAC) and its observations in relation to the procurement
law and associated rules. The Observer should also prepare a Report on its observations during
the procurement activities conducted by the BAC, it is for this reason that procuring entities
provide observers access to documents and entertain their questions. The BAC however, having
full authority over the conduct of the procurement activities, is not prohibited from instituting
order in its proceedings, and to regulate the manner and method of entertaining questions
from the Observers, taking into consideration the principles of transparency, accountability and
efficiency.

2016-11-15
NPM No. 075-2016
Requesting Entity: Baybay Printshop
Issues Concern: Period of Payment after the Delivery of Goods

Details
Clarification on the period of payment by the procuring entity after full delivery by the supplier
of the goods subject of procurement.

Except with the prior approval of the President, no payment shall be made for services not yet
rendered or for supplies and materials not yet delivered under this Contract. Ten percent (10%)
of the amount of each payment shall be retained by the Procuring Entity to cover the Supplier`s
warranty obligations under the Contract as described in GCC Clause 17. The Supplier`s
request(s) for payment shall be made to the Procuring Entity in writing, accompanied by an
invoice describing, as appropriate, the goods delivered and/or services performed, and by
documents submitted pursuant to the Special Conditions of the Contract (SCC) provision for
GCC Clause 6.2, and upon fulfillment of other obligations stipulated in the Contract. Pursuant
to GCC Clause 10.2, payments shall be made promptly by the Procuring Entity, but in no case
later than sixty (60) days after submission of an invoice or claim by the Supplier.

2016-11-15
NPM No. 074-2016
Requesting Entity: Environmental Management Bureau Department of Environment and
Natural Resources (EMB-DENR)
Issues Concern: Disposal of Property and Other Assets of the Government

Details
Whether the posting for auction for the disposal of confiscated cyanide by the EMB-DENR is
allowed in the Philippine Government Electronic Procurement System (PhilGEPS) website

The disposal of government property and assets is governed by other rules such as the
Commission on Audit Circular No. 86-264, dated 16 October 1986, and Department of Budget
and Management (DBM) National Budget Circular No. 425, dated 28 January 1992. Under
Section 4.5(f) of the 2016 revised Implementing Rules and Regulations of Republic Act No. 9184,
it was clarified that the disposal of property and other assets of the government is not a

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procurement activity under the rules. Accordingly, the posting of the opportunity to participate
in the auction for the disposal of the confiscated cyanide in PhilGEPS is not a requirement under
the procurement law and its associated rules. On the other hand, there is no harm to inquire
from PhilGEPS if such posting can be performed for purposes of transparency.

2016-11-15
NPM No. 073-2016
Requesting Entity: Kemanlee General Merchandise
Issues Concern: Single Largest Completed Contract (SLCC)

Details
Clarification on the rule that the required SLCC need not be 50% of the Approved Budget for
the Contract (ABC), and that accumulated similar contracts which sums up to 50% of the ABC
would suffice. It is in this wise that you ask for clarification on the matter.

The SLCC requirement under Section 23.5.1.3 of the revised Implementing Rules and
Regulations (IRR) of Republic Act (RA) No. RA 9184, as technical eligibility criterion, is imposed
for the purpose of establishing a tangible gauge for the bidder`s track record and capacity to
perform contractual obligations. This is a guarantee to all Procuring Entities (PEs) that only
eligible and qualified private contracting parties can participate in public bidding. Nonetheless,
this general rule on the SLCC requirement for the procurement of goods is subject to exception.

In this regard, if it is determined by the procuring entity that imposing the SLCC requirement
will likely result in failure of bidding, or monopoly that will defeat the purpose of public bidding,
the exception under the second paragraph of Section 23.5.1.3 of the IRR of RA 9184 may be
utilized, provided that it is clearly indicated in BDS Clause 5.4 of the PBDs for the Procurement
of Goods.
2016-11-15
NPM No. 072-2016
Requesting Entity: Pili Water District
Issues Concern: Delay in Delivery of Goods

Details
Whether it is allowed to rescind the contract and forfeit the performance security if the
liquidated damages is less than ten percent (10%) of the contract price. If not, the other
remedies that may be pursued under the circumstances

Aside from rescinding the contract as a consequence of the liquidated damages reaching at
least 10% of the contract price, the Procuring Entity (PE) may terminate its procurement
contract under the grounds provided in the Guidelines for Termination of Contracts
(Guidelines.)

In case of delay in the delivery of goods, the PE may opt to terminate the contract and blacklist
the supplier with forfeiture of performance security when warranted by the circumstances,
provided the procedures provided in the Guidelines are properly observed.

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2016-11-15
NPM No. 071-2016
Requesting Entity: National Nutrition Council (NNC)
Issues Concern: Single Bidder in the Procurement of Consulting Services

Details
Requirement for LOI, Not Necessary

In our previous Non-Policy Matter (NPM) Opinion, we clarified that in line with simplifying the
process and preventing collusion, the submission of LOI is no longer required for procurement
activities, the Invitation to Bid or Request for Expression of Interest for which were advertised
or posted after 10 September 2013, the effectivity date of the Government Procurement Policy
Board (GPPB) Resolution No. 27-2012. Said Resolution repealed Sections 23.4.3 and 24.4.3.3 of
the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.

Single Rated Responsive Bid

Section 36 of RA 9184 and its associated IRR allows the award of contract to a single
calculated/rated responsive bid if it falls under the circumstances enumerated therein.

xxx

The intent of the legislature is to mandate the procuring entities to consider a single rated and
responsive bid (or single calculated and responsive bid for goods and civil works procurement)
for award of procurement contracts, and ensure that the ABC reflects the most advantageous
prevailing price for the Government. Accordingly, upon compliance with the entire
requirement of the procurement law and its associated rules, award of contract can be made
to the bidder with the Single Rate and Responsive Bid.
2016-11-15
NPM No. 070-2016
Requesting Entity: Department of Education (DepEd) Region X
Issues Concern: Lease of Real Property or Venue

Details
Whether or not prior resort to public bidding is necessary before a Procuring Entity can use
Negotiated Procurement-Lease of Real Property, specifically for the procurement for lease of
venue (session hall, meals and accommodation, etc.) with an Approved Budget for the Contract
(ABC) of Five Hundred Thousand pesos (Php500,000.00)

While the procuring entity is not prohibited from resorting to competitive bidding in acquiring
contracts for lease of property, such as venue, lease contracts may be procured under Section
53.10 of the Implementing Rules and Regulations of Republic Act No. 9184, regardless of the
ABC and without need of prior resort to public bidding, subject to the rules and conditions set
forth in the Consolidated Guidelines for the Alternative Methods of Procurement.

2016-11-15

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NPM No. 069-2016
Requesting Entity: Province of Zamboanga del Sur
Issues Concern: Chief Accountant as Member of BAC TWG

Details
Whether the Chief Accountant can be a member of the Bids and Awards Committee - Technical
Working Group (BAC-TWG).

The COA Circular only applies to members of the BAC, members of the Technical Working Group
are not included in the prohibition. Thus, we are of the view that a Chief Accountant or one of
the personnel of the accounting unit may be designated as a member of the TWG as it is not
proscribed under COA Circular 2003-004.

2016-11-15
NPM No. 068-2016
Requesting Entity: City of Baguio
Issues Concern: Single Largest Completed Contract

Details
Clarification on Non-Policy Matter Opinion No. 120-2015 regarding the requirement of Single
Largest Completed Contract (SLCC)

A bidder under Small A or Small B category who does not have a previous completed contract
with cost of not at least 50% of the ABC being bid out, are allowed to participate up to 50% of
its Allowable Range of Contract Cost (ARCC). In addition, Sec. 23.5.2.5 of the 2009 revised
Implementing Rules and Regulations (IRR) is now Sec.23.4.2.4 of the 2016 revised IRR, which
allows contractors under Small A and Small B categories (without similar experience on the
contract to be bid) to participate if the cost of the contract being bid out is not more than the
ARCC based on the guidelines as prescribed by the Philippine Contractors Accreditation Board.

2016-11-15
NPM No. 067-2016
Requesting Entity: Philippine Health Insurance Corporation (PhilHealth)
Issues Concern: Conduct of Mandatory Review after Failure of Bidding

Details
Inquiry on the conduct of mandatory review after a failure of bidding.

Sections 35.2 and 35.3 of the revised Implementing Rules and Regulations (IRR) of Republic Act
(RA) No. 9184 x x x of the IRR are instructive on the conduct of mandatory review of the terms,
conditions, specifications in the bidding documents as well as cost estimates in the event that
there is a failure of bidding. With this mandatory review, the BAC may revise the technical
specifications or adjust the ABC subject to the amendment of the APP and approval of the
HOPE. The BAC shall then conduct a re-bidding with re-advertisement and/or posting.

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NPM No. 066-2016
Requesting Entity: Home Development Mutual Fund (PAG-IBIG)
Issues Concern: Lease of Privately-Owned Real Estate

Details
1. Whether or not the agency can indicate in the Technical Specifications that it is in need
of an area that is adjacent to its existing office area

The law authorizes procuring entities to prepare and craft detailed technical specifications in
their bidding documents; and it is incumbent upon them to show that the specifications or
conditions set forth are based on relevant characteristics and/or performance requirements.

2. The method of procurement to be adopted by the agency for this project.

Contracts for lease of real property, such as venue, may be procured by way of negotiated
procurement under the revised Implementing Rules and Regulations without need of prior
resort to public bidding, subject to the rules and procedures established in the Guidelines for
Lease of Privately-Owned Real Estate and Venue.

2016-11-03
NPM No. 065-2016
Requesting Entity: Office Of The Executive Secretary
Issues Concern: Lease of Public Property

Details
Opinion relative to the proposed agreement between the Foundation of Our Lady of Peace
Mission, Inc. (FOLPMI) and the Department of Health (DOH) for the former`s continuous use of
a parcel of land under the administration of the Philippine Reclamation Authority (PRA).

The proposed agreement between the DOH and FOLPMI does not fall within the coverage of
RA 9184 and its IRR as its nature is similar to that of leasing out of government building or
property for private use which is more appropriately governed by EO 301 and COA Circular No.
87-282.

2016-11-03
NPM No. 064-2016
Requesting Entity: Municipality of Alabel
Issues Concern: Bill of Quantities

Details
1. Whether the recommendation of the Technical Working Group (TWG) is sufficient to
disqualify Landrock Construction for submitting a non-responsive bid when it modified the
quantity of an item in the Bill of Quantities issued by the Procuring Entity

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Instructions to Bidders (ITB) Clause 15.2 of the Philippine Bidding Documents for Infrastructure
Projects is instructive, such that the Bill of Quantities shall contain items of work for the
construction, installation, testing, and commissioning of work to be done by the Contractor.
Bids not addressing or providing all of the required items in the Bidding Documents including,
where applicable, bill of quantities, shall be considered non-responsive and, thus, automatically
disqualified.

2. If there is a need to notify in writing Landrock Corporation that it failed in the detailed
evaluation of bids considering that during the opening of bids it was determined to be the
"lowest as read"

Republic Act (RA) No. 9184 and its revised Implementing Rules and Regulations (IRR) do not
provide rules for the notification of bidders as to the result of the bid evaluation. However,
Section 34.5 of the revised IRR dictates that the Bids and Awards Committee (BAC) shall
immediately notify the bidder in writing that it was post-disqualified and the grounds relied
upon by the BAC for such disqualification. Moreover, GPPB Circular No. 03-2012, dated 17
August 2012, provides the guidelines on the post-qualification process and notification of
bidders determined by the procuring entity to be post-disqualified.

If Landrock Construction has already been subjected to post-qualification, it should be notified


in writing that it was post-disqualified if it is determined that it failed to comply with the
requirements of the project as stated in the bidding documents.

2016-11-03
NPM No. 063-2016
Requesting Entity: Requesting Entity Department of Environment and Natural Resources -
Provincial Environment and Natural Resources Offices (DENR -PENRO) Cebu
Issues Concern: Adjustment of the Approved Budget for Contract (ABC): Change of
Procurement Method from Public Bidding to Shopping

Details
Whether your agency may resort to Shopping as an alternative mode of procurement when
upon review of the ABC, it was found out that the amount will fall under the threshold for
Shopping.

If the original mode of procurement recommended in the APP was Competitive Bidding, the
BAC shall recommend the change in the mode of procurement from Competitive Bidding to
Shopping through a Resolution to be approved by the Head of the Procuring Entity. Moreover,
if the items to be procured are not included in the APP, updating of the individual PPMPs and
the consolidated APP must be undertaken to comply with Sections 7.1 - 7.5 of the IRR of R.A.
9184. The BAC is required to issue a Resolution recommending to the HOPE the change from
Competitive Bidding to any of the Alternative Methods of Procurement, such as Shopping under
Section 52 of the IRR, and this procurement modality should be reflected in the Annual
Procurement Plan vis-a-vis particular Project Procurement Management Plan for approval of
the HOP

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2016-11-03
NPM No. 062-2016
Requesting Entity: ATWORK Manpower and General Services
Issues Concern: Proper Sealing and Marking of Bid Envelopes

Details
Proper sealing and marking of bid envelopes because another bidder did not affix his signature
on the submitted sealed envelopes

Clause 20.3 of the Instructions to Bidders, Philippine Bidding Documents for the Procurement
of Goods, provides that the original and copies of the envelopes containing the technical and
financial components of the bid shall be signed by the bidder, but is silent whether the same
should be done on the main (outer) envelope where all the envelopes containing the original
and copies of the technical and financial components of the bid are enclosed. Nonetheless, it is
our considered view that a Procuring Entity (PE) may require that all envelopes shall be duly
signed on the sealed overlaps or flaps by the bidder or duly authorized representative in order
to maintain the integrity of the documents, provided that this requirement is expressly and
clearly indicated in the PE`s Bidding Documents.

2016-11-03
NPM No. 061-2016
Requesting Entity: Philippine Retirement Authority
Issues Concern: Documentary Requirements for Direct Contracting

Details
Whether there is an existing policy relative to the documentary requirements for Direct
Contracting modality in order for the Procuring Entity (PE) to prove that the bidder is legitimate.

In resorting to the Direct Contracting modality, the decision on what eligibility documents may
be required to determine the technical, legal and financial capability of the singular source
bidder pursuant to Section 50 of RA 9184 and its IRR is within the sound discretion of the
Procuring Entity.

2016-11-03
NPM No. 060-2016
Requesting Entity: Northern Iloilo Polytechnic State College (NIPSC)
Issues Concern: Honoraria for Bids and Awards Committee (BAC) Secretariat and Technical
Working Group (TWG) Members

Details
Clarification on the claim for honoraria of the BAC members, including BAC Secretariat and TWG
members
Section 15 of the Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 states
that the procuring entity may grant payment of honoraria to the BAC members in an amount
not to exceed twenty five percent (25%) of their respective basic monthly salary subject to the

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availability of funds. Under the same provision, the BAC Secretariat and the TWG members may
likewise be granted honoraria, subject to the relevant rules of the Department of Budget and
Management (DBM).

The DBM has issued Budget Circular (BC) No. 2004-5A , as amended by BC No. 2007-3 , which
allows the payment of honoraria to members of the BAC, BAC Secretariat and TWG for
successfully completed procurement projects. This provides sufficient basis in the grant of
honoraria to members of the BAC, its Secretariat and the TWG.

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). Consequently, honoraria
will not be paid when procurement is through all the other alternative modes of procurement
provided in RA 9184 and its IRR where competitive bidding or a semblance thereof is not
present.

Furthermore, the amount necessary for the payment of honoraria and overtime pay shall be
sourced from the items enumerated under Section 3.1 of BC No. 2007-3

2016-11-03
NPM No. 059-2016
Requesting Entity: Cavite State University (CvSU)
Issues Concern: Honoraria; Supply Officer

Details
Whether a Supply Officer designated as a member of the Bids Awards Committee (BAC) is
entitled to honoraria.

The designation of the OIC of the Supply and Property Office as a BAC member entitles him/her
to honoraria for successfully completed procurement projects in accordance with Sections 5.1
and 5.5 of DBM BC 2004-5A. The disqualification on the entitlement of honoraria only refers to
BAC Secretariat members whose positions are in the Procurement Unit of the agency and
whose functions, duties and responsibilities involve the performance of BAC Secretariat
functions; the rationale being that one should not be compensated another time for performing
work he or she ought to perform, as this will be against the principle of double compensation.

2016-11-03
NPM No. 058-2016
Requesting Entity: East Pacific Industrial Trading
Issues Concern: Clause 5.1 of the Bid Data Sheet (BDS); Additional Eligibility Documents; Ten-
year Business Existence of Bidder

Details
Legality of Clause 5.1 of the BDS relative to the procurement of Starter Toolkits by the Technical
Education and Skill Development Authority (TESDA)

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Clause 5.1 of the BDS of the Philippine Bidding Documents for Goods refers to those bidders
who are allowed to participate in bidding, and does not, in any way, allow additional eligibility
requirements, as the same are limited to those enumerated under Section 23.1 of the revised
Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.

Instead of bidder`s years of business existence, the bidder is required to submit its SLCC within
the period specified by the Procuring Entity, in accordance with Section 23.5.1.3 of the IRR of
RA 9184.

2016-11-02
NPM No. 057-2016
Requesting Entity: University of Eastern Philippines
Issues Concern: Chairmanship of the Bids and Awards Committee

Details
Whether a designated Vice President for Administration and Finance who is holder of Professor
II plantilla position is qualified to become the Chairman of the Bids and Awards Committee
(BAC).

BAC Rank and Plantilla Position

The organizational plantilla of the Procuring Entity defines whether the official qualifies for
regular BAC membership; and the determination of ranking should take into consideration the
hierarchy in the plantilla positions present in the agency`s organizational structure. Note that
the consideration for designation as regular BAC member is not the nature of the appointment,
that is, whether the official/personnel was engaged as a permanent, temporary, seconded or
detailed employee, but on whether the employee possesses the appropriate ranking and holds
a plantilla position.

BAC Members: Prohibition

Under RA 9184, the personnel disqualified from being a member of the BAC include the HOPE
or approving authority and the official who approves procurement transactions. Likewise, COA
Circular No. 2003-004 prohibits the Chief Accountant and personnel of accounting units to be
regular members of the BAC as it is necessary to ensure that the procurement and payment
functions are segregated, in keeping with the rules and principles of good internal control and
to avert the possibility of conflict of interest as prohibited under the rules.

From the foregoing, if the functions of the Vice President for Administration and Finance do
not cover payment functions, i.e., certification as to the availability of funds and approval of
vouchers in payment of procurements made by the agency, he is not prohibited from being
designated as a regular member of the BAC or Chairman of the BAC, if he is at least a third
ranking permanent official of the procuring entity.

2016-11-02
NPM No. 056-2016

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Requesting Entity: Workcentric
Issues Concern: Omission of the Name of One of the Joint Venture Partners in the Financial Bid
Form

Details
Whether the bid of a proposed Joint Venture (JV) can be declared "failed" if one of the names
of the JV partners was not included in the first part of the Financial Bid Form, but was signed
by all the representatives of the JV partners

The signature of the JV partners or their duly authorized representatives constitutes their
assent to be bound as such JV partners. The fact that all the JV partners signed the Financial Bid
Form is a clear proof that the JV partners are tendering their offer with full intention to be
bound and take part in the procurement at hand.

2016-11-02
NPM No. 055-2016
Requesting Entity: Baybay Printshop
Issues Concern: Period of Payment after the Delivery of Goods/

Details
Clarification on the period of payment by the procuring entity after full delivery by the supplier
of the goods subject of procurement.

There are several conditions that must be complied with prior to the payment to the supplier
for the goods delivered or services rendered. Nonetheless, payment to the supplier must be
made immediately after the supplier submitted or filed its written claim and must not be later
than sixty (60) days after such claim.

2016-11-02
NPM No. 054-2016
Requesting Entity: Department of Budget and Management (DBM)
Issues Concern: Request of the Department of National Defense (DND) to Repeal Executive
Order (EO) No. 235, s. 2003

Details
The DND request pertains to the delegation of the signing/approval of contracts and the
creation of separate Bids and Awards Committees (BACs) in the procurement activities of the
DND

Creation of Separate BACs


Section 12 of Republic Act (RA) No. 9184 and its 2016 revised Implementing Rules and
Regulations (IRR) enunciates the general policy of having a single BAC for each procuring entity.
This notwithstanding, the same Section allows the Head of the Procuring Entity (HOPE) to
create separate BACs where the number and complexity of the items to be procured shall so

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warrant, or establish similar committees for decentralized and lower level offices when deemed
necessary; and

Delegation of Signing/ Approval of Contracts


In accordance with Sections 5(j), 12 and 37 of RA 9184, the Head of Agency may delegate the
functions of the HOPE, such as the approval of the recommendation to award a contract and
the signing of Notice of Award, among others. The decision, however, to delegate such
functions lies solely on the sound discretion of the Head of the Agency taking into consideration
the aspects of economy, efficiency and accountability, and the need to effectively implement
plans and programs.

2016-10-27
NPM No. 053-2016
Requesting Entity: Cebu Port Authority (CPA)
Issues Concern: Adjacent or Contiguous Negotiated Procurement Modality

Details
GPPB Approval to Resort to Alternative Method of Procurement

GPPB approval is not necessary whenever a PE undertakes procurement through Competitive


Bidding, regardless of the ABC, or where the ABC is less than 500 Million Pesos in case of any
alternative method of procurement,. In such cases, the determination of the appropriate
procurement method to be used for a particular project rests within the sole authority and
accountability of the HOPE as the approving authority, and the BAC, as the recommendatory
body.

Methods of Procurement

A PE may only resort to Negotiated Procurement Adjacent or Contiguous modality under


Section 53.4 of the 2016 Revised IRR of RA 9184 if it has determined that all the conditions
warranting its use, as further clarified in the Consolidated Guidelines for the Alternative
Methods of Procurement, are present. Otherwise, the PE shall undertake its procurement
through Competitive Bidding or any other appropriate alternative method of procurement. As
regards negative slippage/delay, the contractor shall have no negative slippage/delay in the
original contract at the time of the negotiation.

2016-10-03
NPM No. 052-2016
Requesting Entity: Juvenile Justice and Welfare Council (JJWC)
Issues Concern: Negotiated Procurement (Two-Failed Biddings)

Details
Whether JJWC may resort to Negotiated Procurement under the Two-Failed-Biddings modality
considering that the first bidding was for the procurement of Asian Utility Vehicle, while the
second bidding was for Sports Utility Vehicle procurement.

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Negotiated Procurement through Two-Failed Biddings modality can be resorted to only if the
original or the first mode of procurement, including the second failure, is Competitive Bidding
and two-failed biddings were declared in accordance with Section 35 of the revised
Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.
The grounds mentioned for the failure of the two (2) biddings conducted by the JJWC, are: (1)
change of specifications by the end-user; and, (2) failure of the supplier to deliver the vehicle
subject of its offer, do not conform with the requirements of Two Failed Biddings warranting
the Procuring Entity to use Negotiated Procurement under Section 53.1 (Two-Failed Biddings)
of the revised IRR of RA 9184

2016-10-03
NPM No. 051-2016
Requesting Entity: Punonghimpilan Hukbong Dagat ng Pilipinas
Issues Concern: Procurement for the Repair and Maintenance of Ships

Details
Whether ship repair, which is a complex procurement activity, could be considered as a
procurement of infrastructure project.

The Procuring Entity (PE) is in the best position to determine the correct classification of its
procurement based on its identified needs and the best way by which these needs may be
addressed, managed, and satisfied. It is the motivation or intention of the PE in pursuing the
project that will determine the primary purpose of a project.

However, that the PE does not possess unbridled authority to classify its procurement as to
Goods, Infrastructure Projects or Consulting Services, as when by its nature, the procurement
activity falls within the definition of a certain type. Hence, it is vital that the motivation and
primary purpose of the PE, alongside RA 9184 and its IRR, be considered in categorizing or
classifying any procurement activity. The procuring entity, however, may be guided by the
definition of what comprises goods procurement vis-�-vis those considered civil works
procurement.

Whether progress payments may be made in the procurement of goods, and if not, may a
certification from a recognized organization of shipyards be submitted to establish the fact of
industry practice for progress payments.

Whether the type of procurement is goods and services or infrastructure project, progress
payments are allowed. Although it is not specifically mentioned how progress payments shall
be made in the procurement of goods, Clause 11.2 of the General Conditions of the Contract
(GCC) of the Standard Philippine Bidding Documents (PBDs) for Goods provides that "all
progress payments shall first be charged against the advance payment until the latter has been
fully exhausted". Moreover, Clause 17.3 of the same GCC provides that the obligation for the
warranty may be covered by a "retention money in an amount equivalent to at least ten percent
(10%) of every progress payment". Thus, it is evident from these provisions that progress
payments are allowed for goods procurement as it is the amount from which the advance
payment and retention money are deducted.

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Whether the Philippine Navy (PN) may resort to direct contracting with the same shipyard
which was awarded through public bidding for additional and necessary repair works
discovered in the course of the repair activity.

The procurement of ship repair and maintenance service can be conducted through Direct
Contracting only if the PE, after conducting a diligent market survey, can establish the
singularity of the supplier or manufacturer of such goods and services required by the PE or
when there is a contract for an infrastructure project and critical components of such structure
are prescribed by the contractor for it to guarantee its contract performance. A negative finding
on the singularity of the source of the goods and services sought to be procured or the absence
of such contract requiring the prescribed components shall be a caveat to PE from resorting to
Direct Contracting.

Whether the PN may enter into an ordering agreement for repair and maintenance of ships
with one or several shipyards.

Ordering Agreement may be used by the procuring entity for expendable or non-expendable
goods, and services for hotel accommodation, air travel, and repair and maintenance,
determined to be necessary and desirable to address and satisfy the PE`s needs, but by its
nature, use, or characteristic, the quantity and/or exact time of need cannot be accurately pre-
determined. Since the repair and maintenance of the ships are in the nature of a repair and
maintenance service, the Philippine Navy may use ordering agreement mechanism for their
procurement.

2016-10-03
NPM No. 050-2016
Requesting Entity: National Housing Authority (NHA)
Issues Concern: Acceptance of Temporary Philippine Contractors Accreditation Board (PCAB)
Certificate of License Renewal and Official Receipt

Details

A valid PCAB license is an integral part of the Eligibility Requirements for the procurement of
infrastructure projects, the same should be valid as of the date of the deadline for the
submission and opening of bids. A Temporary PCAB Certificate of License cannot substitute the
requirement of submitting a Valid PCAB License as part of the Eligibility Requirements.

2016-03-21
NPM No. 026-2016
Requesting Entity: Municipality of Mulanay
Issues Concern: Bidder presented BIR Receipt instead of Tax Clearance

Details

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Whether it is valid to issue a Notice of Award considering that the bidder only presented BIR
Receipt instead of Tax Clearance during the eligibility check.

EO 398 specifically requires the submission of Tax Clearance issued by the BIR which should be
in the form defined in RR 3-2005 . Hence, the submission of other documents, in your case the
submission of the BIR Official Receipt in lieu of the Tax Clearance requirement, cannot be
considered in compliance with Sections 23.1(a)(iii) and 24.1(a)(iii) of the IRR of RA 9184. As we
have previously opined, since the Tax Clearance is now included as part of the Class "A" legal
eligibility documents, its non-submission is a ground for ineligibility, and the eventual
disqualification of the bidder. Thus, the winning bidder who presented the photocopy of the
Official Receipt from the BIR during the submission of bids, as well as the original Official
Receipt during the Post-Qualification may be disqualified for failure to submit the original Tax
Clearance as defined under EO 398.

2016-03-21
NPM No. 025-2016
Requesting Entity: Department of Interior and Local Government - Regional Office VI (DILG-
ROVI)
Issues Concern: Newspaper Publication

Details
Whether in the requirement of publication of the Invitation to Bid (IB) in a newspaper of general
nationwide circulation, the term "nationwide" pertains to major newspaper such as Philippine
Star or the Philippine Daily Inquirer or it will suffice that the newspaper has regional
counterparts like Sunstar Iloilo.

In the case of Fortune Motors (Phils.) Inc. v. Metropolitan Bank And Trust Co., et al. , the
Supreme Court held that to be considered a newspaper of general circulation (without
reference to the place of circulation), it is enough that the newspaper is published for the
dissemination of local news and general information; that it has a bona fide subscription list of
paying subscribers; that it is published at regular intervals; and that the newspaper need not
have the largest circulation so long as it is of general circulation.

On the other hand, the IRR of RA 9184 requires that the advertisement of the ITB/REI be made
in a newspaper of general nationwide circulation, not just a newspaper of general circulation.
Accordingly, the newspaper where the ITB/REI will be advertised must be of "nationwide"
circulation, in addition to the above definition given by the Supreme Court. The term
"nationwide" requires that the newspaper must be of national distribution as opposed to a
newspaper of local or regional circulation.

2016-03-21
NPM No. 024-2016
Requesting Entity: City Government of Antipolo (CGA)

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Issues Concern: Posting in the Philippine Government Electronic System (PhilGEPS)

Details
Whether or not the CGA should authorize payment of the claims notwithstanding the lack of
posting in the PhilGEPS website?

The determination of the legality or validity of the actions and decisions of the BAC, including
contracts emanating therefrom, is not within the express mandate of the GPPB. However, we
find it important to discuss the relevant provisions of the procurement law, rules and
regulations pertinent to a valid procurement activity.

It bears stressing that all procuring entities are mandated to fully use the PhilGEPS in the
conduct of procurement procedures.

Thus, if the posting in the PhilGEPS website is not observed, it renders the proceeding to which
it relates illegal and void, or the violation of which makes the decision therein rendered invalid
because Article 5 of the Civil Code of the Philippines provides that acts executed against the
provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes
their validity. RA 9184, having been enacted for the advancement of public welfare and to
enhance transparency, undoubtedly contains mandatory provisions, such as the
aforementioned provision.

Notwithstanding violations of the procurement laws and its IRR, we wish to reiterate that the
GPPB or its TSO is not in the position to give opinion on whether CGA should authorize payment
of the claims before it, or whether its officials and employees will incur personal liability in case
of payments of such claims, since these concerns would involve issues not within our
jurisdiction.

2016-03-21
NPM No. 023-2016
Requesting Entity: Development Bank of the Philippines (DBP)
Issues Concern: Proposed DBP Venture Capital Program (VCP)

Details
Whether the divestment of equity process through the proposed exit mechanisms under the
DBP-VCP is covered by Republic Act (RA) No. 9184 and its revised Implementing Rules and
Regulations (IRR).

There are two important elements to be considered in determining whether an activity is


procurement that is covered by RA 9184 and its IRR, thus:
1. the activity involves the acquisition of goods, consulting services, and the contracting for
infrastructure projects; and
2. public funds are utilized or is contemplated to be spent.
As opposed to investment which signifies the delivery of possession of anything to another,
divestment connotes taking away and/or withdrawal of such possession and title.

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In this regard, considering that divestment of equity process through the proposed exit
mechanisms under the DBP-VCP does not involve an acquisition of goods, consulting services,
and the contracting for infrastructure projects utilizing public funds, such divestment equity
process is not considered as procurement, and considered to be beyond the coverage of RA
9184 and its IRR.

2016-03-21
NPM No. 022-2016
Requesting Entity: Civil Aviation Authority of the Philippines (CAAP)
Issues Concern: Direct Contracting

Details
Guidance relative to CAAP's procurement of Flight Yield Service (FYS), through Direct
Contracting, that is available only from Sita Bureau Services (SBS).

RA 9184 and its associated IRR adopt Competitive Bidding as the primary method of
procurement, and any alternative method may be employed only under highly exceptional
circumstances to address economy and efficiency. Consequently, Direct Contracting may be
allowed when the procurement involves goods of proprietary nature, which can be obtained
only from the proprietary source, that is, when patents, trade secrets, and copyrights prohibit
others from manufacturing the same item; but the procuring entity must first justify the
necessity for Direct Contracting, and must be able to prove that there is no suitable substitute
in the market that can be obtained at more advantageous terms to the government using
specifications based on relevant characteristics and/or performance requirements.

2016-03-21
NPM No. 021-2016
Requesting Entity: Cagayan Economic Zone Authority (CEZA)
Issues Concern: Origin of Goods

Details
Clarification on the existing procurement rules pertaining to the origin of goods relative to the
authority secured by the CEZA from the Department of Budget and Management (DBM) to
purchase bulldozer which specifies that the country of origin should be from the G7 Countries
only.

Procuring entities are precluded from requiring specific country of origin as part of the technical
specification for the project. Rather, the specifications shall be based on the performance
requirements and recognized industry standards and not on the basis of country of origin.

2016-03-21
NPM No. 020-2016

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Requesting Entity: Bicol Medical Center (BMC)
Issues Concern: Consignment Projects

Details
Whether consignment projects can be considered as similar to the contract to be bid for
purposes of complying with the requirements for Single Largest Complete Contract (SLCC).

Consignment in its common meaning is an arrangement whereby the goods are sent by one to
another to be sold and disposed by the latter for and on account of the former.

The question of whether consignment projects can be considered as the SLCC required by the
provisions of the IRR of RA 9184 necessitates the comparison of a Consignment Project and a
Procurement Contract. Consignment arrangement or project cannot be considered as
procurement because of the difference in the essential features of the two contracts. The
former does not involve acquisition of goods and disbursement of public funds, which are vital
features of a procurement contract.

In this regard, while we recognize the authority and discretion of procuring entities to clarify in
the Bidding Documents the definition of what it considers to be a similar project by virtue of
Section 23.5.1.3 par.3 of the IRR of RA 9184, it is our considered view that a consignment
project cannot be considered as similar to the contract to be bid for purposes of complying with
the requirements for SLCC because it lacks the elements of acquisition of goods and
disbursement of public funds that essentially characterize a procurement contract.

NPM No. 019-2016


Requesting Entity: Aspen Multi-System Corporation
Issues Concern: Demonstration Prior to Bidding

Details
Whether the demonstration of the item prior to bidding will amount to a "prequalification"
requirement abandoned with the enactment of Republic Act (RA) No. 9184.

If the required demonstration of the item to be bid, will be a criterion for eligibility or
qualification of bidders, such that the subsequent bidding process will be limited to those who
participated in the demonstration activity, then the required demonstration will amount to
"pre-qualification," which is proscribed under Republic Act (RA) No. 9184 and its revised
Implementing Rules and Regulations (IRR). However, if the information and result of the
demonstration will only be used by the procuring entity in coming up with its technical
specifications, and equal opportunity shall be extended to all prospective bidders who are
capable of complying with the procuring entity's requirements, then the demonstration will not
fall within the ambit of "prequalification" activity proscribed by RA 9184.

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Whether this prior demonstration will result in "pre-determination" of the bid results as the
demonstration would be the basis for post-qualification.

The demonstration conducted prior to bidding will not result in the pre-determination of the
bid results if such was conducted only for the purpose of aiding the procuring entity in crafting
its technical specifications and parameters, which may even be regarded as part and parcel of
its market research approach. Such prior demonstration cannot be the basis for post-
qualification results since the post-qualification process, which includes verification, validation
and ascertainment, including the testing, of the goods/product for compliance with the
technical requirements under Section 34 of RA 9184 and its IRR, is mandatorily conducted for
each and every project submitted for competitive bidding. The objective of which is to
determine whether the bidder complies with and is responsive to all the legal, technical and
financial requirements and conditions specified in the bidding documents.

2016-03-21
NPM No. 018-2016
Requesting Entity: Municipality of Pagsanjan, Laguna
Issues Concern: Method of Procurement

Details
Whether it is correct to use NGO Participation as a modality of Negotiated Procurement under
Section 53.11 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184 for the procurement of supply and installation of three (3) phase primary line (a5
construction assembly) and installation of three (3) units 15 KVA distribution transformer.

At the outset, we wish to clarify that the determination of the appropriate method of
procurement rests within the sole authority and accountability of the Head of the Procuring
Entity (HOPE), as the approving authority, and the Bids and Awards Committee (BAC), as the
recommendatory body. We adhere to the position that no other agency, office or official may
interfere with these functions of the HOPE and the BAC, and dictate the method of
procurement to be used for a particular project.

The question of whether NGO Participation, as a modality of Negotiated Procurement, can be


resorted to depends on whether the appropriation law or ordinance earmarking an amount for
the procurement of supply and installation of 3 phase primary line (a5 construction assembly)
and installation of 3 units 15 KVA distribution transformer specifically requires that it be
contracted out to NGOs. If so, the procuring entity may resort to such method of procurement,
following the provisions of Sections 48 and 53.11 of the IRR of RA 9184, as well as the Guidelines
on Non-Governmental Organization Participation in Public Procurement. Otherwise,
competitive bidding, as the default mode of procurement, or other applicable method of
procurement shall be resorted to.

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It also bears stressing that the GPPB issued Resolution No. 19-2006, dated 6 December 2006,
prescribing the Guidelines on Procurement of Water, Electricity, Telecommunications and
Internet Service Providers. Under Section 3.1 thereof, considering that water and electricity
service providers are granted exclusive franchises to operate within a specific territory,
procurement of water and electricity services shall be done through Direct Contracting under
Section 50(c) of the IRR of RA 9184. For guidance, you may refer to the provisions of the said
Guidelines to determine its applicability to your procurement project.

2016-03-21
NPM No. 017-2016
Requesting Entity: Philippine Postal Savings Bank (PostBank)
Issues Concern: Applicability of Republic Act No. 9184

Details
Whether the proposed Memorandum of Agreement (MOA) for the use of Automated Teller
Machines (ATMs) involving a revenue sharing scheme is a procurement activity within the
coverage of Republic Act (RA) No. 9184 and its revised Implementing Rules and Regulations
(IRR).

If the proposed MOA involving the use of ATMs does not involve public expenditure on the part
of PostBank, it is our considered view that RA 9184 and its associated rules and regulations are
inapplicable. However, we note that the proposed MOA is akin to a Joint Venture Agreement
between PostBank and the private supplier. For this reason, the Revised Guidelines and
Procedures for Entering into Joint Venture Agreements between Government and Private
Entities issued by the National Economic and Development Authority (NEDA) is the relevant
issuance under the circumstances as it prescribes the rules, guidelines and procedures for Joint
Venture Agreements between private entities and government corporations, particularly
Government-Owned and/or Controlled Corporations (GOCCs), Government Corporate Entities
(GCEs), Government Instrumentalities with Corporate Powers (GICPs), Government Financial
Institutions (GFIs), and State Universities and Colleges (SUCs).

2016-03-21
NPM No. 016-2016
Requesting Entity: Department of National Defense (DND)
Issues Concern: Blacklisting of an Agent

Details
Extent of the application of a blacklisting order to an agent in accordance with Republic Act
(RA) No. 9184, its Implementing Rules and Regulations (IRR) and the Guidelines for Blacklisting.

Article 1897 reinforces the familiar doctrine that an agent, who acts as such, is not personally
liable to the party with whom he contracts.

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There is no personal liability for agents. The reason for the law is that the agent who acts as
agent does not represent himself but the principal.

Accordingly, applying the same principle of law, a bidder who was blacklisted as a "principal" in
a previous procurement activity, may still represent a current bidder as an "agent" in
government procurement opportunities, such as in the case of competitive bidding, since such
blacklisted bidder is merely representing the current bidder as an "agent". In the same manner,
if the "principal" bidder is blacklisted by a procuring entity, its "agent" or representative is not
blacklisted, unless the "agent" expressly binds himself through the Contract of Agency, or when
he exceeds his authority as agent.

2016-03-21
NPM No. 015-2016
Requesting Entity: Philippine Normal University (PNU)
Issues Concern: Approved Budget for the Contract (ABC)

Details
The rules to be observed in cases where the procurement transactions do not involve an ABC,
one of the information required to be posted at the Philippine Government Electronic
Procurement System (PhilGEPS) website alongside the Invitation to Bid (IB).

Regardless of the method of procurement, no procurement project can commence and be


undertaken unless it has a corresponding ABC as reflected in the approved APP. Consequently,
considering that advertisement and posting of the IB signals the start of the bidding process
and ABC is one of the mandatory information to be included in the IB, the procurement
opportunity cannot be posted in the PhilGEPS website without first determining the
corresponding ABC to be bid.

2016-03-21
NPM No. 014-2016
Requesting Entity: Poro Point Management Corporation (PPMC)
Issues Concern: Period to Resolve Protest

Details
Whether the Head of the Procuring Entity (HOPE) may decide beyond the seven (7) calendar
day period in accordance with Section 56 of the revised Implementing Rules and Regulations
(IRR) of Republic Act (RA) No. 9184.

The HOPE has the obligation to decide and resolve the protest submitted before it within the
reglementary period prescribed by law and the rules. However, despite its mandatory nature,
failure to observe the seven (7) calendar day period under Section 56 does not bar or relieve

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the HOPE from acting on and resolving the protest at hand; this is pursuant to Section 57 of the
IRR which prohibits the award of contract should there remain unresolved protests on the
procurement activity at hand.

2016-03-21
NPM No. 013-2016
Requesting Entity: House of Representatives (HOR)
Issues Concern: Multi-year contracts (MYCs)

Details
Whether a government agency may resort to multi-year contracts specifically for the
procurement of office uniforms.

Whether there are other forms of general support services that may be procured under multi-
year coverage.

There is nothing in RA 9184 and its IRR that limits procuring entities from entering into MYCs
for their procurement activities only to those involving security and janitorial services.
However, in the implementation of Multi-Year Projects (MYPs) covered by MYCs, where the
total cost is not available for the first year, procuring entities shall request the Department of
Budget and Management (DBM) for the issuance of a Multi-Year Obligational Authority (MYOA)
following DBM Circular-Letter (CL) No. 2015-7.

A careful reading of the GAA and DBM CL No. 2015-7 issued by DBM shows that procuring
entities may enter into Multi-Year Projects that is evidenced by Multi-Year Contracts for any of
their procurement activities, subject to compliance with the requirement of a MYOA issued by
the DBM and any other applicable requisites provided by law or DBM's issuances.

2016-03-21
NPM No. 012-2016
Requesting Entity: Speedex Construction and Development Corp.
Issues Concern: Delayed Award of Contract

Details
HOPE Approval

The power of the HOPE to approve or disapprove the recommendations made by the BAC in
the entire procurement process is a discretionary act as distinguished from a purely ministerial
act . The decision to award a contract rests within the sole discretion of the HOPE. Within a
period not exceeding seven (7) calendar days from the date of receipt of the recommendation
of the BAC relative to the award of contract, the HOPE is given the discretion to approve or
disapprove such recommendation.

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Failure to Award Contract within the Mandatory Period

The Supreme Court in the case of Jacomille v. Abaya, ruled that failure to comply with the
mandatory periods set forth in Section 37 is an irregularity which renders the procurement
process null and void. Thus:

The Court does not agree with the OSG that the 3-month period is merely directory. The said
provision contains the word "shall" which is mandatory in character. Such period was placed in
a separate provision under Section 38, rather than compressed with Section 37, to emphasize
its importance. There is nothing in the law which states that the 3-month period can be
disregarded. Non-compliance with the period will certainly affect the validity of the bidding
process. In fact, Section 38.1 of the IRR of R.A. No. 9184 reaffirms the obligatory 3-month
period:

The procurement process from the opening of bids up to the award of contract shall not exceed
three (3) months, or a shorter period to be determined by the procuring entity concerned. All
members of the BAC shall be on a "jury duty" type of assignment until the Notice of Award is
issued by the Head of the Procuring Entity in order to complete the entire procurement process
at the earliest possible time. (Emphasis supplied)

2016-03-21
NPM No. 011-2016
Requesting Entity: Climate Change Commission (CCC)
Issues Concern: Designation of BAC Chairman

Details
Whether a highest ranking permanent employee, who is not an approving authority, may be
designated as the BAC Chairman of CCC.

The highest ranking permanent employee referred to by the CCC, may be designated as BAC
Chairman, provided that such employee possesses all of the qualifications and none of the
disqualifications provided under existing laws, rules and regulations. In particular, the highest
ranking permanent employee must be at least a third ranking permanent official of the
procuring entity. Additionally, such employee must be a person of unquestionable integrity and
procurement proficiency and in no case shall be the HOPE, an approving authority, or a Chief
Accountant or personnel of the Accounting Unit, except as an end-user representative when
the Accounting Unit is the requesting or procuring end-user.

2016-03-21
NPM No. 010-2016
Requesting Entity: Department of National Defense
Issues Concern: Tax Clearance Certificate

Details

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Whether the DND-SBAC can allow the submission by the bidder of a substitute document in
lieu of a Tax Clearance Certificate of its subcontractor.

A bidder's subcontractor who presented a Sworn Affidavit, in lieu of a tax clearance during the
submission of bids, shall be ineligible under ITB Clause 8.2, and the subcontracting by the
principal bidder of such portion shall be disallowed. Consequently, the principal bidder may still
be declared eligible, but the portion it intends to subcontract shall be disallowed for failure to
comply with the submission of the required Tax Clearance. As a result, the principal bidder
would have to bid for that component proposed to be subcontracted.

NPM No. 009-2016


Requesting Entity: Bendimil Construction and Development Corporation
Issues Concern: PCAB License for Joint Ventures (JVs)

Details
Opinion relative to the requirement of a PCAB license for Joint Venture (JV) bidders and the
stage at which it has to be submitted per the requirements embodied in Republic Act (RA) No.
9184 and its Implementing Rules and Regulations (IRR).

The submission of the individual PCAB licenses of each joint venture partner participating in a
civil works procurement is not necessary if the bidder is participating as a Joint Venture. As
mentioned, the submission of the Special PCAB license for JV bidders is required pursuant to
Section 38 of RA 4566 and Section 3.5 of its associated IRR as part of the technical eligibility
documents to be submitted, together with the bid proposal, on or before the deadline for
submission and receipt of bids.

2016-03-21
NPM No. 008-2016
Requesting Entity: Thaumaturgy (Trade) Philippines (TP)
Issues Concern: Capitalization of Markings on the Bid Envelopes

Details
Whether failure to use format, i.e., the bid envelope's title and markings were not in capital
letters as provided for in Instruction to Bidders (ITB) Clauses 20.1, 20.2 and 20.4 of the
Philippine Bidding Documents PBD for the procurement of Goods, is a ground for
disqualification.

Writing, typing or printing the markings on the Bid Envelopes in small letters format, instead of
"ALL CAPS" or "CAPITAL LETTERS", should not serve as basis to disqualify a bidder since this
does not violate the sanctity and integrity of the submitted bids. Otherwise, a literal
interpretation of the requirement constricts rather than fulfills its purpose and in the process,
runs counter to the principles of competition, efficiency and fairness in government
contracting.

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2016-03-18
NPM No. 007-2016
Requesting Entity: Municipality of Mondragon
Issues Concern: Provision of Honoraria

Details
Whether the Sangguniang Bayan has the power and authority to regulate the honoraria of the
BAC and if you can protest to such act.

The Government Procurement Policy Board (GPPB) or its Technical Support Office (TSO) is not
in the position to decide for and on behalf of a procuring entity. More so, it is not within the
powers and functions of the GPPB or its TSO to give its imprimatur to acts of the Sangguniang
Bayan that are well within the latter's authority, discretion, and accountability.

The honoraria granted under Section 15 of RA 9184 shall only be given to only those who are
entitled to receive such, to wit: those personnel duly assigned as chair or member of the BAC
or TWG, or members of the BAC Secretariat, if applicable as the honoraria that may be granted
is for the performance of procurement tasks or involvement in procurement activities beyond
their regular function.

On the other hand, it is our considered view that the proposal to appropriate and distribute
40% of the requested honoraria to the BAC, Secretariat, and TWG members, and 60% to other
elected and appointed employees finds no basis in RA 9184 and its revised IRR, including the
abovementioned DBM Budget Circulars. If at all, the limitation sanctioned by RA 9184 and its
associated rules refers to the payment of honoraria in an amount not to exceed twenty five
percent (25%) of the respective basic monthly salaries of the BAC, Secretariat and TWG
members are entitled to 100% of their respective honoraria, but in no case shall this exceed
25% of their respective monthly salaries.

2016-03-18
NPM No. 006-2016
Requesting Entity: Ericvonne Construction
Issues Concern: Acceptable Forms of Performance Security

Details
Whether it is allowed to post a performance security in the form of a Security Bond issued by
an accredited insurance company by the Insurance Commission of the Philippines.

PEs now have the right to indicate in the Bidding Documents at least two (2) acceptable forms
of performance security from which the bidder may opt to use. Thus, if the PE indicated in the
bidding documents that only cash or cashier's/manager's check, bank draft/guarantee or
irrevocable letter of credit are the acceptable forms of performance security that its winning

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bidder may choose from, then the latter may not post any other form of performance security,
i.e. the Surety Bond, albeit it is one of the forms provided under the rules.

2016-03-18
NPM No. 005-2016
Requesting Entity: Department of Environment and Natural Resources (DENR) - Environmental
Management Bureau (EMB)
Issues Concern: Incomplete Omnibus Sworn Statement

Details
Whether it is proper for the EMB Bids and Awards Committee (BAC) to accept the bidder's
proposal notwithstanding the latter's failure to provide Item No. 9 of the Omnibus Sworn
Statement as it was not stated in EMB's bidding documents.

Instruction to Bidders (ITB) Clause 12.1(b)(iii) requires that the first envelope shall contain,
among others, a sworn statement in accordance with Section 25.2(a)(iv) of the IRR of RA 9184
and using the form prescribed in Section VIII. (Bidding Forms) of the Philippine Bidding
Documents. x x x. And under ITB Clause 19.2, Forms mentioned in ITB Clause 19.1 must be
completed without any alterations to their format, and no substitute Form shall be accepted.

Failure of the bidder to comply with the prescribed Omnibus Sworn Statement is a cause for
the bidder's disqualification, unless the mistake was committed due to the procuring entity's
failure to provide the correct and updated form of the Omnibus Sworn Statement in its bidding
documents.

2016-03-18
NPM No. 004-2016
Requesting Entity: National Irrigation Administration (NIA)
Issues Concern: Joint Venture's (JVs) Technical Requirements

Details
Whether the non-submission of the: 1) List of its Materials Engineer(s) to be assigned to the
contract to be bid, with their complete qualification and experience data; and 2) The
certification of availability of equipment from the equipment lessor/vendor for the duration of
the project, which are both required to be submitted as part of the technical requirements in
the first envelope, is a ground for disqualification.

Under the IRR of RA 9184, a bidder must comply with the minimum specifications, such as the
identification of the Materials Engineer for the project. As for the Certification of Availability of
equipment from the equipment lessor/vendor for the duration of the project, which supports
the list of contractor's equipment units, it is a specific technical document under Section
25.2(b)(iii)(3) of the IRR of RA 9184, which cannot be dispensed with. Accordingly, both
requirements are part of the technical bid and non-submission of which is a ground for
disqualification of the bidder.

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2016-03-18
NPM No. 003-2016
Requesting Entity: National Irrigation Administration (NIA)
Issues Concern: Joint Venture's (JVs) Technical Requirements

Details
Whether the non-disclosure by a JV partner of an ongoing government contract would affect
compliance with the technical requirements of the bidding by the JV itself, notwithstanding the
fact that the other partner was found to have already submitted/complied with such
requirement.

Government Procurement Policy Board (GPPB) and its Technical Support Office (TSO) only
render policy and non-policy opinions respectively, on issues purely relating to the
interpretation and application of our procurement laws, rules and regulations. It has no
jurisdiction to rule over actual controversies with regard to the conduct of the bidding since it
has no quasi-judicial functions under the law.

In this regard, we shall limit our discussion on the relevant provisions of the procurement law,
rules and regulations pertinent to the issues presented.

Statement of Ongoing Contracts and Compliance with Section 23.1(a)(iv) of the Revised IRR of
RA 9184

The statement of all ongoing government and private contracts is a technical eligibility
requirement, the compliance by one joint venture partner shall render the joint venture fully
and completely compliant with the technical requirement based on the concept of collective
compliance. However, if both JV partners submitted their respective technical eligibility
documents, that includes the Statement of all ongoing contracts, the BAC shall consider all
Statements for eligibility checking and post-qualification purposes; and

The Statement of all ongoing government and private contracts shall include all ongoing
contracts, including 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 submission by both JV partners of their respective Statements of
all ongoing contracts as technical eligibility documents shall form part of the bid and shall be
considered during eligibility checking and post-qualification.

Non-Disclosure of an On-going Contract

If the procuring entity uncovers any misrepresentation made in the eligibility requirements,
statements or documents, or any change in the situation of the prospective bidder, which will
affect the capability of the prospective bidder to undertake the project, it shall consider the
prospective bidder ineligible and shall disqualify it from obtaining an award of contract,
notwithstanding an earlier determination of eligibility.

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All told, failure to include all ongoing contracts in the Statements submitted by the JV partners
may be a ground for disqualification on the basis of misrepresentation or change in the bidder's
capability. In both instances, the determination of the existence of the circumstances lies with
the BAC and the procuring entity.

2016-03-18
NPM No. 002-2016
Requesting Entity: Provincial Government of Nueva Ecija
Issues Concern: Continuing Validity of Tax Clearance
Details
Whether a Tax Clearance, which was valid at the time of bid opening, should be renewed by
the bidder if it has expired prior to the award of the contract.

EO 398 requires that a bidder should not have any tax liability with the Government from the
time of submission of its bid up to the time of contract award. Accordingly, bidders are required
to secure and submit a valid Tax Clearance issued by the BIR as proof of compliance with the
requirements of EO 398. In the event that the submitted Tax Clearance expires prior to award
of contract, the bidder is obligated to renew and update its Tax Clearance.

2016-03-18
NPM No. 002-2016
Requesting Entity: Provincial Government of Nueva Ecija
Issues Concern: Continuing Validity of Tax Clearance

Details
Whether a Tax Clearance, which was valid at the time of bid opening, should be renewed by
the bidder if it has expired prior to the award of the contract.

EO 398 requires that a bidder should not have any tax liability with the Government from the
time of submission of its bid up to the time of contract award. Accordingly, bidders are required
to secure and submit a valid Tax Clearance issued by the BIR as proof of compliance with the
requirements of EO 398. In the event that the submitted Tax Clearance expires prior to award
of contract, the bidder is obligated to renew and update its Tax Clearance.

2016-03-18
NPM No. 001-2016
Requesting Entity: Mindanao University of Science and Technology (MUST)
Issues Concern: Separate Bids and Awards Committees (BACs)
Details
Whether the MUST can establish separate BACs in the procurement of Goods, Consulting
Services, and Infrastructure Projects.

MUST has the prerogative and authority to establish separate BACs upon determination that
creation of separate BACs according to the nature of procurement, or geographical location, is
necessary to expedite its procurement process. Similarly, MUST, in creating separate BACs,

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shall designate at least five (5) but not more than seven (7) members for each BAC subject to
the qualification requirements for such members provided in the IRR of RA 9184.

NPM No. 180-2015


Subject: Nature of Procurement
Requesting Entity: Municipality of Teresa
Date: 2015-12-29

NPM No. 179-2015


Subject: Protest Mechanism
Requesting Entity: Panabo Water District
Date: 2015-12-29

NPM No. 178-2015


Subject: Business Permit Address
Requesting Entity: Ms. Grace Cadsiwing
Date: 2015-12-29

NPM No. 177-2015


Subject: Contract Price Escalation; Approved Budget for the Contract (ABC)
Requesting Entity: Center for International Trade Expositions and Missions (CITEM)
Date: 2015-12-29

NPM No. 176-2015


Subject: Procurement of Common-use Supplies
Requesting Entity: Maritime Industry Authority (MARINA)
Date: 2015-12-29

NPM No. 175-2015


Subject: Certificate of Acceptance
Requesting Entity: Josmarc Enterprises
Date: 2015-12-29

NPM No. 174-2015


Subject: Tax Clearance; Bidding Documents; Failure of Bidding under Section 41
Requesting Entity: Joint Venture of Pilipinas Micro-Matrix Technology Inc. and Philcox
Philippines Inc.
Date: 2015-12-29

NPM No. 173-2015


Subject: Technical Specifications
Requesting Entity: City of Bislig
Date: 2015-12-29

NPM No. 172-2015


Subject: Agency-to-Agency Agreements
Requesting Entity: Philippine Postal Corporation (PHLPost)
Date: 2015-12-29

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NPM No. 171-2015
Subject: Deviations from the Requirements of RA 9184 and GPPB Rules and
Regulations
Requesting Entity: Commission on Audit (COA)
Date: 2015-12-29

NPM No. 170-2015


Subject: Unsatisfactory Delivery of Goods
Requesting Entity: Industrial Technology Development Institute (ITDI) Department of
Science and Technology (DOST)
Date: 2015-12-29

NPM No. 169-2015


Subject: Performance Security
Requesting Entity: Bacolod City Water District (BCWD)
Date: 2015-12-29

NPM No. 168-2015


Subject: Decision of the Bids and Awards Committee (BAC); Qualification of BAC
Chairman; Internal Check and Balance; Conflict of Interest
Requesting Entity: Pangasinan State University
Date: 2015-12-29

NPM No. 167-2015


Subject: Rental of Motor Vehicle
Requesting Entity: Department of Health Regional Office XI (DOH - RO XI)
Date: 2015-12-22

NPM No. 166-2015


Subject: Procurement Short of Award
Requesting Entity: Maritime Industry Authority (MARINA)
Date: 2015-12-22

NPM No. 165-2015


Subject: Technical Eligibility; Foreign Bidders; and Joint Ventures
Requesting Entity: Department of Science and Technology - Information
Communications Technology Office (DOTC-ICTO)
Date: 2015-12-22

NPM No. 164-2015


Subject: Small Value Procurement
Requesting Entity: Phil-Asia Sales and Services
Date: 2015-12-22

NPM No. 163-2015


Subject: Registration of Joint Venture
Requesting Entity: Road Board
Date: 2015-12-22

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NPM No. 162-2015
Subject: Applicability of Section 11.2.5 of the IRR of RA 9184
Requesting Entity: Commission on Audit
Date: 2015-12-22

NPM No. 161-2015


Subject: Discount on Bid Price
Requesting Entity: Kalinga-Apayao State College (KASC)
Date: 2015-12-22

NPM No. 160-2015


Subject: Statement of Ongoing and Completed Government and Private Contracts
Requesting Entity: National Maritime Polytechnic
Date: 2015-12-22

NPM No. 159-2015


Subject: Refusal to Sell Bidding Documents
Requesting Entity: BM Marketing
Date: 2015-12-22

NPM No. 158-2015


Subject: Audited Financial Statements
Requesting Entity: Leighcheen Construction Corporation
Date: 2015-12-22

NPM No. 157-2015


Subject: Procurement Timelines
Requesting Entity: Northern Iloilo Polytechnic State College (NIPSC)
Date: 2015-12-11

NPM No. 156-2015


Subject: PhilGEPS Posting of BUB Projects
Requesting Entity: Provincial Poverty Reduction Action Team
Date: 2015-12-11

NPM No. 155-2015


Subject: Direct Contracting of DNA Testing Services
Requesting Entity: Presidential Communications Development and Strategic Planning
Office
Date: 2015-12-11

NPM No. 154-2015


Subject: Procurement of Individual Consultants
Requesting Entity: Negros Oriental State University (NORSU)
Date: 2015-12-11

NPM No. 153-2015


Subject: Term of Third Ranking Permanent Official as BAC Chairperson
Requesting Entity: Fertilizer and Pesticide Authority (FPA)

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Date: 2015-12-11

NPM No. 152-2015


Subject: Observer's Access to Documents
Requesting Entity: Social Security System (SSS)
Date: 2015-12-11

NPM No. 151-2015


Subject: Multi-year contract
Requesting Entity: Philippine Postal Corporation (PhilPOST)
Date: 2015-12-11

NPM No. 150-2015


Subject: Period of Action on Procurement Activities
Requesting Entity: Mactan-Cebu International Airport Airport (MCIAA)
Date: 2015-11-27

NPM No. 149-2015


Subject: Procurement by Lot; Single Largest Completed Contract; Repeat Order;
Mandatory Timeline
Requesting Entity: Commission on Audit - Philippine Charity Sweepstakes Office (COA-
PCSO)
Date: 2015-11-27

NPM No. 148-2015


Subject: Award of Contract
Requesting Entity: Eulogio Amang Rodriguez Institute of Science and Technology
(EARIST)
Date: 2015-11-27

NPM No. 147-2015


Subject: Joint Venture
Requesting Entity: Ms. Rachel Medrana
Date: 2015-11-27

NPM No. 146-2015


Subject: Ten (10)-Year Market Presence for Bidders in IT-Related Procurement
Requesting Entity: Board of Investments (BOI)
Date: 2015-11-27

NPM No. 145-2015


Subject: Small Value Procurement
Requesting Entity: National Police Commission (NAPOLCOM)
Date: 2015-11-27

NPM No. 144-2015


Subject: Mandatory Filing of Tax Returns and Payment of Taxes through the Electronic
Filing and Payment System (EFPS) of the Bureau of Internal Revenue (BIR)
Requesting Entity: Senate of the Philippines

Document1\70of112
Date: 2015-11-27

NPM No. 143-2015


Subject: Contract Approval by Higher Authority
Requesting Entity: Government Service Insurance System (GSIS)
Date: 2015-11-27

NPM No. 142-2015


Subject: Additional Eligibility Documents
Requesting Entity: BD Medica Enterprise
Date: 2015-11-27

NPM No. 141-2015


Subject: HOPE Declaration of Failure of Bidding
Requesting Entity: Philippine Science High School - Central Mindanao Campus (PSHS-
CMC)
Date: 2015-11-27

NPM No. 140-2015


Subject: Two-Year Contract for Shopping and Small Value Procurement
Requesting Entity: Metropolitan Waterworks and Sewerage System (MWSS)
Date: 2015-11-27

NPM No. 139-2015


Subject: Procurement of Internet Service Provider (ISP)
Requesting Entity: Environmental Management Bureau (EMB)
Date: 2015-11-27

NPM No. 138-2015


Subject: Return of Protest Fee
Requesting Entity: PITC Pharma, Inc. (PPI)
Date: 2015-11-27

NPM No. 137-2015


Subject: Agency-to-Agency Agreement
Requesting Entity: Philippine Institute for Development Studies (PIDS)
Date: 2015-11-27

NPM No. 136-2015


Subject: ISO 9001:2008 and 14001:2004 Compliance
Requesting Entity: National Manufacturing & Industrial Production Corporation
Date: 2015-11-27

NPM No. 135-2015


Subject: Bidder's Bond
Requesting Entity: Science City of MuÑoz
Date: 2015-11-27

NPM No. 134-2015

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Subject: Use of Gartner's Magic Quadrant as Part of Technical Specifications
Requesting Entity: RedDot Imaging Philippines, Inc.
Date: 2015-11-27

NPM No. 133-2015


Subject: Government Procurement Policy Board (GPPB) Resolution No. 03-2015
Requesting Entity: Presidential Management Staff (PMS)
Date: 2015-11-27

NPM No. 132-2015


Subject: Custodian of Procurement Records
Requesting Entity: National Food Authority (NFA)
Date: 2015-11-27

NPM No. 131-2015


Subject: Additional Payment for Extension of Contract for Consulting Services
Requesting Entity: Manila International Airport Authority (MIAA)
Date: 2015-11-27

NPM No. 130-2015


Subject: Procurement By Lot
Requesting Entity: Polytechnic University of the Philippines (PUP)
Date: 2015-11-27

NPM No. 129-2015


Subject: Bid Securing Declaration
Requesting Entity: Aparri Water District (AWD)
Date: 2015-11-27

NPM No. 128-2015


Subject: Tax Clearance Certificate
Requesting Entity: LGU Dipolog City
Date: 2015-11-27

NPM No. 127-2015


Subject: Procurement of Publication Services
Requesting Entity: Bulacan State University (BSU)
Date: 2015-11-27

NPM No. 126-2015


Subject: Multi-Year Contract
Requesting Entity: National Kidney and Transplant Institute (NKTI)
Date: 2015-11-27

NPM No. 125-2015


Subject: Submission of Collection Receipts as Proof of Single Largest Completed
Contract (SLCC)
Requesting Entity: Information and Communications Technology Division Securities
and Exchange Commission (SEC)

Document1\72of112
Date: 2015-11-27

NPM No. 124-2015


Subject: Mandatory Periods; Declaration of Failure of Bidding by the Head of the
Procuring Entity (HOPE)
Requesting Entity: Pilipinas Micro-Matrix Technology (PMT Joint Venture)
Date: 2015-11-27

NPM No. 123-2015


Subject: Highly Technical Consultant
Requesting Entity: Philippine Postal Corporation (PHILPOST)
Date: 2015-11-27

NPM No. 122-2015


Subject: Replacement of Personnel
Requesting Entity: Philippine National Railways
Date: 2015-11-27

NPM No. 121-2015


Subject: Award of Contract
Requesting Entity: Manolo Fortich, Bukidnon
Date: 2015-11-27

NPM No. 120-2015


Subject: Similar Largest Completed Contract (SLCC) contract requirement for bidders
under Small A and Small B categories
Requesting Entity: Mr. Fernando Tolete
Date: 2015-11-27

NPM No. 119-2015


Subject: Observers for Small Value Procurements (SVP)
Requesting Entity: Ms. Apryl Aguilos
Date: 2015-11-27

NPM No. 118-2015


Subject: Format and Signing of Bids
Requesting Entity: PPG Construction Corporation
Date: 2015-11-03

NPM No. 117-2015


Subject: Joint Venture Participation; Written Queries
Requesting Entity: Omniprime Marketing, Inc.
Date: 2015-11-03

NPM No. 117-2015


Subject: Joint Venture Participation; Written Queries
Requesting Entity: Omniprime Marketing, Inc.
Date: 2015-11-03

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NPM No. 116-2015
Subject: Bids and Awards Committee (BAC) Composition
Requesting Entity: Marinduque State College
Date: 2015-11-03

NPM No. 115-2015


Subject: Availability and Sale of Bidding Documents
Requesting Entity: LGU Suyo, Ilocos Sur
Date: 2015-11-13

NPM No. 114-2015


Subject: Attendance during Bid Opening and Bidder's Access to Bids and Awards
Committee (BAC) Resolutions
Requesting Entity: Aspen Multi-System Corp.
Date: 2015-11-03

NPM No. 113-2015


Subject: Conflict of Interest on Government Employees' Cooperative
Requesting Entity: Fishers Multi-Purpose Cooperative (FMPC)
Date: 2015-11-13

NPM No. 112-2015


Subject: Pakyaw Labor
Requesting Entity: Local Government of Kidapawan City
Date: 2015-11-02

NPM No. 111-2015


Subject: BAC Secretariat Members and their Honoraria
Requesting Entity: Central Bicol State University of Agriculture (CBSUA)
Date: 2015-11-02

NPM No. 110-2015


Subject: Definition of "Similar" in Single Largest Completed Contract Similar to the
Contract to be Bid (SLCC) and Prospective Bidder's Attendance in the Pre-Bid
Conference
Requesting Entity: Aspen Multi-System Corp.
Date: 2015-11-02

NPM No. 109-2015


Subject: Philippine Government Electronic Procurement System (PhilGEPS)
Solicitation Number
Requesting Entity: Philippine Postal Savings Bank, Inc.
Date: 2015-11-02

NPM No. 108-2015


Subject: Extension of Bid Security Validity Period
Requesting Entity: Airfreight 2100, Inc.
Date: 2015-11-02

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NPM No. 107-2015
Subject: Grounds for Disqualification
Requesting Entity: Philippine Postal Corporation (PhilPOST)
Date: 2015-11-02

NPM No. 106-2015


Subject: Negotiated Procurement under Section 53.1 (Two Failed Biddings) of the
revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184
Requesting Entity: Department of Social Welfare and Development Field Office National
Capital Region (DSWD-NCR)
Date: 2015-11-02

NPM No. 105-2015


Subject: Tax Clearance
Requesting Entity: Civil Aviation Authority of the Philippines
Date: 2015-11-02

NPM No. 104-2015


Subject: Bids and Awards Committee (BAC) Secretariat Head from the Office of the
Acting Head of the Procuring Entity (HOPE)
Requesting Entity: Professional Regulation Commission
Date: 2015-10-13

NPM No. 103-2015


Subject: Acceptability of an expired PCAB License
Requesting Entity: Philippine Science High School - CAR Campus
Date: 2015-10-13

NPM No. 102-2015


Subject: Death of Sole Proprietor
Requesting Entity: Commission on Audit (COA)
Date: 2015-10-13

NPM No. 101-2015


Subject: Submission of a Credit Line Commitment (CLC)
Requesting Entity: Bureau of Animal Industry (BAI)
Date: 2015-10-13

NPM No. 100-2015


Subject: Purchase of Motor Vehicles
Requesting Entity: Office of the Solicitor General (OSG)
Date: 2015-10-13

NPM No. 099-2015


Subject: Sealing and Marking of Bids
Requesting Entity: Annex Digital, Incorporated (ADI)
Date: 2015-10-13

NPM No. 098-2015

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Subject: Computation of Liquidated Damages (LD)
Requesting Entity: Iloilo Science and technology University (ISTU)
Date: 2015-10-13

NPM No. 097-2015


Subject: Direct Contracting; Mixed Procurement
Requesting Entity: Development Bank of the Philippines (DBP)
Date: 2015-10-13

NPM No. 096-2015


Subject: Deadline for Submission and Opening of Bids
Requesting Entity: Department of Budget and Management Regional Office VIII
Date: 2015-10-13

NPM No. 095-2015


Subject: Source of Honoraria
Requesting Entity: Municipality of Baras
Date: 2015-10-13

NPM No. 094-2015


Subject: Procurement of Accountable Forms
Requesting Entity: National Food Authority
Date: 2015-10-13

NPM No. 093-2015


Subject: LGU Head Related to a Contractor's Officer
Requesting Entity: GMA News Research GMA Network, Inc.
Date: 2015-10-13

NPM No. 092-2015


Subject: Transfer of Procurement between BACs
Requesting Entity: Southern Tagalog Integrated Agricultural Research Center
Department of Agriculture, RFO IV-A
Date: 2015-10-13

NPM No. 091-2015


Subject: Protest Fee for Multi-Year Projects
Requesting Entity: Authority of Freeport Area of Bataan
Date: 2015-10-13

NPM No. 090-2015


Subject: Submission of Manually-Filed Income Tax Return
Requesting Entity: Philippine International Trading Corporation
Date: 2015-10-13

NPM No. 089-2015


Subject: Forms of Bid Security
Requesting Entity: City of Bayawan
Date: 2015-10-13

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NPM No. 088-2015
Subject: Evaluation of Documents Submitted by Foreign Bidder
Requesting Entity: People's Television Network, Inc.
Date: 2015-10-13

NPM No. 087-2015


Subject: Property/Supply Officer as BAC Chairperson
Requesting Entity: Himamaylan Water District
Date: 2015-10-13

NPM No. 086-2015


Subject: Direct Contracting; Executive Order No. 423
Requesting Entity: Duty Free Philippines Corporation
Date: 2015-10-13

NPM No. 085-2015


Subject: Withdrawal of Bids; Arithmetical Correction
Requesting Entity: Development Bank of the Philippines (DBP)
Date: 2015-10-13

NPM No. 084-2015


Subject: Advertisement and Posting
Requesting Entity: Department of Science and Technology - CARAGA
Date: 2015-10-13

NPM No. 083-2015


Subject: BAC Composition
Requesting Entity: Philippine Institute for Development Studies (PIDS)
Date: 2015-10-13

NPM No. 082-2015


Subject: Posting Requirements for Lease of Privately-Owned Real Estate and Venue
Requesting Entity: Department of Agrarian Reform
Date: 2015-10-13

NPM No. 081-2015


Subject: Performance Fee
Requesting Entity: Philippine Health Insurance Corporation
Date: 2015-10-13

NPM No. 080-2015


Subject: Purchase of Medicines
Requesting Entity: Cebu City Government
Date: 2015-10-13

NPM No. 079-2015


Subject: PhilGEPS Posting

Document1\77of112
Requesting Entity: Information and Communication Technology Office - Field Operating
Office - Mindanao Cluster 1
Date: 2015-10-13

NPM No. 078-2015


Subject: Tax Clearance
Requesting Entity: Department of Education - Albay
Date: 2015-10-13

NPM No. 077-2015


Subject: Tax Clearance; PhilGEPS Posting
Requesting Entity: Municipality of Solsona
Date: 2015-10-13

NPM No. 076-2015


Subject: Creation of Bids and Awards Committee (BAC)
Requesting Entity: San Carlos City Water District
Date: 2015-10-13

NPM No. 074-2015


Subject: Conflict of Interest
Requesting Entity: Mactan-Cebu International Airport Authority (MCIAA)
Date: 2015-10-13

NPM No. 073-2015


Subject: Direct Contracting
Requesting Entity: Department of Health (DOH)
Date: 2015-10-13

NPM No. 072-2015


Subject: Computation of Liquidated Damages
Requesting Entity: Department of Education Regional Office VI
Date: 2015-10-13

NPM No. 071-2015


Subject: Tie-Breaking Method; Bid Securing Declaration; Notice of Award; PADPAO
Format
Requesting Entity: Bureau of Local Government Finance (BLGF) Department of
Finance (DOF)
Date: 2015-10-12

NPM No. 070-2015


Subject: Direct Contracting
Requesting Entity: University of the Philippines
Date: 2015-10-12

NPM No. 069-2015


Subject: Small Value Procurement

Document1\78of112
Requesting Entity: Commission on Human Rights (CHR) - Information Systems
Management Office (ISMO)
Date: 2015-10-12

NPM No. 068-2015


Subject: Domestic Preference
Requesting Entity: STX Marine Service
Date: 2015-10-12

NPM No. 067-2015


Subject: Retention Money
Requesting Entity: Senate of the Philippines
Date: 2015-10-12

NPM No. 066-2015


Subject: Accountable Forms; Local Government Units
Requesting Entity: Province of Guimaras
Date: 2015-10-12

NPM No. 065-2015


Subject: Disclosure of Relations
Requesting Entity: Occidental Mindoro State College (OMSC)
Date: 2015-10-12

NPM No. 064-2015


Subject: Bangko Sentral ng Pilipinas Department of General Services - Security Plant
Complex
Requesting Entity: Tax Clearance; Direct Contracting
Date: 2015-10-12

NPM No. 063-2015


Subject: Detailed Engineering for Infrastructure Projects
Requesting Entity: Butuan City Water District
Date: 2015-10-12

NPM No. 062-2015


Subject: Local Government Units; Procurement of Accountable Forms
Requesting Entity: Department of Budget and Management Cordillera Administrative
Region
Date: 2015-10-12

NPM No. 061-2015


Subject: Disqualification for Failure to State the Brand Name of Offered Product
Requesting Entity: Municipal Government of Calabanga
Date: 2015-10-12

NPM No. 060-2015


Subject: Approval of the Head of the Procuring Entity
Requesting Entity: Palawan State University

Document1\79of112
Date: 2015-10-09

NPM No. 059-2015


Subject: Domestic Preference
Requesting Entity: Westfield Pharmaceuticals, Inc.
Date: 2015-10-09

NPM No. 058-2015


Subject: Price Schedule for Goods
Requesting Entity: Department of Health
Date: 2015-10-09

NPM No. 057-2015


Subject: Procurement of Second Hand Chemistry Analyzer
Requesting Entity: Local Government Unit of Lamut
Date: 2015-10-09

NPM No. 056-2015


Subject: Letter of Intent; Submission of Tax Clearance Certificate; Minimum Eligibility
Requirements for the Conduct of Shopping and Small Value Procurement
Requesting Entity: Philippine Ports Authority PMO- Zamboanga
Date: 2015-10-09

NPM No. 055-2015


Subject: Mode of Service in Filing Motions for Reconsideration
Requesting Entity: Philippine International Trading Corporation (PITC)
Date: 2015-10-09

NPM No. 054-2015


Subject: International Organization for Standardization (ISO) 14001:2004 Certification
Requesting Entity: Local Water Utilities Administration
Date: 2015-10-09

NPM No. 053-2015


Subject: Bid Securing Declaration
Requesting Entity: Junna Industrial Corporation
Date: 2015-10-09

NPM NO. 052-2015


Subject: Philippines Reclamation Authority (Public Estates Authority)
Requesting Entity: Adjacent or Contiguous Infrastructure Projects
Date: 2015-10-09

NPM No. 051-2015


Subject: Threshold for Small Value Procurement (SVP)
Requesting Entity: Metro Iloilo Water District
Date: 2015-10-09

NPM No. 050-2015

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Subject: Posting Requirement; Lease of Privately-Owned Real Estate and Venue
Requesting Entity: Development Bank of the Philippines
Date: 2015-10-09

NPM No. 049-2015


Subject: Final Judgment of Violation of Labor Law or Social Legislation
Requesting Entity: City of Valenzuela
Date: 2015-10-09

NPM No. 048-2015


Subject: Applicability of Republic Act No. 9184
Requesting Entity: Department of National Defense
Date: 2015-10-09

NPM No. 047-2015


Subject: Applicability of Repeat Order for the Procurement of General Support Services
Requesting Entity: Philcare Manpower Services (PMS)
Date: 2015-10-09

NPM No. 046-2015


Subject: Pre-bid Conference
Requesting Entity: XQZ Builders
Date: 2015-10-09

NPM No. 045-2015


Subject: Creation of the Technical Working Group (TWG)
Requesting Entity: Philippine Carabao Center
Date: 2015-10-09

NPM No. 044-2015


Subject: Section 7.2 of the Guidelines in the Determination of Eligibility of Foreign
Suppliers, Contractors, and Consultants to Participate in Government Procurement
Projects
Requesting Entity: Department of National Defense
Date: 2015-10-09

NPM No. 043-2015


Subject: Clause 20.3 of Instructions to Bidders (ITB) of the Philippine Bidding
Documents (PBDs) for Goods
Requesting Entity: Civil Aviation Authority of the Philippines (CAAP)
Date: 2015-10-09

NPM No. 042-2015


Subject: Change of Technical Specifications during Contract Implementation Stage
Requesting Entity: Zamboanga City Water District
Date: 2015-10-08

NPM No. 041-2015

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Subject: Procurement of Accident Insurance Policy; Approved Budget for the Contract;
Reference to Brand Names; and Change of Specifications
Requesting Entity: Western Visayas College of Science and Technology System
(WVCST)
Date: 2015-10-08

NPM No. 040-2015


Subject: Post-qualification Requirements
Requesting Entity: Province of Catanduanes
Date: 2015-10-08

NPM No. 039-2015


Subject: Domestic Preference
Requesting Entity: Wellpack, Incorporated
Date: 2015-10-08

NPM No. 038-2015


Subject: Marking and Sealing; Responsiveness of Bids
Requesting Entity: We Are It Philippines, Inc.
Date: 2015-10-08

NPM No. 037-2015


Subject: Eligibility Documents
Requesting Entity: Summa Water Resources Inc. (SUMMA)
Date: 2015-10-08

NPM No. 036-2015


Subject: Payment Terms for Government Contracts
Requesting Entity: Software Farm International, Inc.
Date: 2015-10-08

NPM No. 035-2015


Subject: Government Procurement Policy Board (GPPB) Resolution No. 03-2012
Requesting Entity: RJC Security and Investigation Agency, Inc.
Date: 2015-10-08

NPM No. 034-2015


Subject: Amendment to Order
Requesting Entity: Department of Trade and Industry - CARAGA
Date: 2015-10-08

NPM No. 033-2015


Subject: Negotiated Procurement (Emergency Cases)
Requesting Entity: Commission on Audit (COA) Department of Education Regional
Office I .
Date: 2015-10-08

NPM No. 032-2015


Subject: Bids and Awards Committee (BAC) Secretariat Composition

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Requesting Entity: Presidential Management Staff
Date: 2015-10-08

NPM No. 031-2015


Subject: Conduct of Clarificatory Meeting with the Bidders
Requesting Entity: Supreme Court of the Philippines
Date: 2015-10-08

NPM No. 030-2015


Subject: Grant of Honoraria to General Services Division Chief appointed as Head of
the Bids and Awards Committee (BAC) Secretariat
Requesting Entity: Department of Trade and Industry
Date: 2015-10-08

NPM No. 029-2015


Subject: Consignment Agreement
Requesting Entity: National Kidney and Transplant Institute (NKTI)
Date: 2015-10-08

NPM No. 028-2015


Subject: Removal of Bids and Awards Committee Members
Requesting Entity: Schools of Division of Aurora, Department of Education Region III
Date: 2015-10-08

NPM No. 027-2015


Subject: Printing of Accountable Forms
Requesting Entity: Provincial Government of Southern Leyte
Date: 2015-10-08

NPM No. 026-2015


Subject: Bid Security
Requesting Entity: Prince Valiant International Corporation
Date: 2015-10-08

NPM No. 025-2015


Subject: Philippine Association of Detective and Protective Agency Operations
(PADPAO) prescribed Retirement Benefit
Requesting Entity: Department of Environment and Natural Resources (DENR)
Date: 2015-10-07

NPM No. 024-2015


Subject: Bidding Out Construction by Phase
Requesting Entity: City of Cabadbaran
Date: 2015-10-07

NPM No. 023-2015


Subject: Requiring Tax Clearance when Resorting to Alternative Methods of
Procurement
Requesting Entity: Department of Agriculture (DA)

Document1\83of112
Date: 2015-10-07

NPM No. 022-2015


Subject: Composition of Bids and Awards Committee (BAC) in Water Districts
Requesting Entity: Tabuelan Water District (TWD)
Date: 2015-10-07

NPM No. 021-2015


Subject: Negotiated Procurement (Adjacent or Contiguous)
Requesting Entity: Department of Transportation and Communications (DOTC)
Date: 2015-10-07

NPM No. 021-2015


Subject: Negotiated Procurement (Adjacent or Contiguous)
Requesting Entity: Department of Transportation and Communications (DOTC)
Date: 2015-10-07

NPM No. 020-2015


Subject: Advertisement and Posting Requirements; Failure of Bidding
Requesting Entity: Capiz 2nd District Engineering Office - Department of Public Works
and Highways
Date: 2015-10-07

NPM No. 019-2015


Subject: Variation Order
Requesting Entity: Department of Agriculture (DA)
Date: 2015-10-07

NPM No. 018-2015


Subject: Price Adjustment/ Price Escalation
Requesting Entity: Department of Public Works and Highways (DPWH)
Date: 2015-10-07

NPM No. 017-2015


Subject: Armed Forces of the Philippines Engineering Equipment Acquisition Project
(AFP EEA Project)
Requesting Entity: Department of National Defense (DND)
Date: 2015-10-07

NPM No. 016-2015


Subject: Designation of City Treasurer as Member of the Bids and Awards Committee
(BAC)
Requesting Entity: Office of the Treasurer - City of Pasig
Date: 2015-09-07

NPM 087-2015
Subject: Property/Supply Officer as BAC Chairperson
Requesting Entity: Himamaylan Water District
Date: 2015-10-13

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NPM 085-2015
Subject: Withdrawal of Bids; Arithmetical Correction
Requesting Entity: Development Bank of the Philippines
Date: 2015-10-13

NPM 015-2015
Subject: Procurement of Printing Services of Accountable Forms and Sensitive High
Quality/ Volume Requirements
Requesting Entity: Bases Conversion and Development Authority (BCDA)
Date: 2015-05-25

NPM 014-2015
Subject: Additional Technical Requirement
Requesting Entity: Zamboanga City Water District (ZCWD)
Date: 2015-05-25

NPM 013-2015
Subject: Approved Budget for the Contract as Basis for Award
Requesting Entity: Department of Public Works and Highways
Date: 2015-05-07

NPM 012-2015
Subject: Tax Clearance Certificate
Requesting Entity: Toyota Tacloban, Leyte, Inc.
Date: 2015-05-05

NPM 011-2015
Subject: Single Largest Completed Contract (SLCC)
Requesting Entity: Philippine Coconut Authority (PCA) Region XI
Date: 2015-04-07

NPM 010-2015
Subject: Government Procurement Policy Board (GPPB) Resolution No. 12-2007
Requesting Entity: Department of Social Welfare and Development
Date: 2015-04-07

NPM 009-2015
Subject: Technical Specifications/Amendment to Order
Requesting Entity: Bureau of Fire Protection (BFP)
Date: 2015-04-07

NPM 008-2015
Subject: Participation of Foreign Bidders in the Public Procurement
Requesting Entity: Department of Finance
Date: 2015-03-11

NPM 007-2015
Subject: Protest Fee and Typographical Error in the Technical Specification

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Requesting Entity: Department Of Energy (DOE)
Date: 2015-03-11

NPM 006-2015
Subject: Single Largest Completed Contract
Requesting Entity: Philippine Coconut Authority (PCA) Region V
Date: 2015-03-11

NPM 005-2015
Subject: Cluster Bids and Awards Committee (CBAC)
Requesting Entity: Department of Health (DOH)
Date: 2015-02-20

NPM 004-2015
Subject: Bidding Requirements
Requesting Entity: Office of the Vice President
Date: 2015-02-20

NPM 003-2015
Subject: DPWH Department Order No. 97
Requesting Entity: Bendimil Construction and Development Corporation
Date: 2015-02-20

NPM 002-2015
Subject: Request for Advice on the Use of Procurement Method
Requesting Entity: Office of the Auditor - National Dairy Authority (NDA)
Date: 2015-02-18

NPM 001-2015
Subject: Procurement of Motor Vehicle Fuel and Maintenance Services
Requesting Entity: Office of the Ombudsman
Date: 2015-02-05

2015-12-29
NPM No. 180-2015
Requesting Entity: Municipality of Teresa
Issues Concern: Nature of Procurement

Details
Whether the procurement of software system for collection and disbursement of a local
government unit (LGU) is classified as a procurement of goods or consulting services

The Municipality of Teresa is in the best position to determine, based on its primary
purpose, motivation and intention, and on the nature of the contract, whether the
intended Project should be classified as Goods or Consulting Services. In exercising
this responsibility, the Procuring Entity should be guided by the parameters and
conditions in the relevant provisions of Republic Act No. 9184 and its revised
Implementing Rules and Regulations on what should be considered as Goods or
Consulting Services procurement.

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2015-12-29

NPM No. 179-2015

Requesting Entity: Panabo Water District

Issues Concern: Protest Mechanism

Details

What documents should be prepared by the Bids and Awards Committee-Secretariat


(BAC Sec) in the event that the protest filed by the bidder is granted by the Head of
Procuring Entity (HOPE)?

In the event that a protest is filed and eventually granted or decided in favor of the
protesting bidder pursuant to Rule XVII of the IRR, thereby reversing the decision of the
BAC, the bid envelopes of the protesting bidder, previously kept unopened or duly
sealed in accordance with Section 55.1, shall be opened/reopened and
evaluated/reevaluated in the same manner as those previously opened bids.

The BAC Secretariat is created by law as the main support unit of the BAC, providing
administrative support to the BAC and taking custody of all procurement documents and
other records, among others. Thus, should a protest be decided in favor of the protester,
the procurement process shall proceed in accordance with the decision of the HOPE.
The BAC Sec, for its part, shall provide the BAC all necessary documents to enable the
latter to comply with the resolution of the HOPE, including any unopened and/or duly
sealed bid envelopes.

2015-12-29
NPM No. 178-2015
Requesting Entity: Ms. Grace Cadsiwing
Issues Concern: Business Permit Address

Details
Address indicated in the bidder's mayor's/business permit is different from the address in all
bid documents submitted by the bidder

The BAC shall verify, validate and ascertain whether the address indicated in the
mayor's/business permit is indeed the principal place of business of the bidder in compliance
with the eligibility requirements under Section 23(1)(a)(ii) of the revised Implementing Rules
and Regulations of Republic Act No. 9184. If so, the discrepancy between the business address
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on the mayor's/business permit and the address appearing in the bid documents is of no
moment for purposes of eligibility, for there could be a situation where a bidder is also holding
another office somewhere else, or in a different locality apart from that official place of
business appearing in the Mayor's Permit. However, if upon verification, no such principal place
of business exists, this occasion is tantamount to non-compliance with the eligibility
requirement due to the bidder's non-submission of a Class "A" document.

2015-12-29
NPM No. 177-2015
Requesting Entity: Center for International Trade Expositions and Missions (CITEM)
Issues Concern: Contract Price Escalation; Approved Budget for the Contract (ABC)

Details
Requesting approval from the Government Procurement Policy Board (GPPB) to allow the
actual amount procured from a signage contractor in excess of the Actual Budget for the
Contract (ABC) for various projects implemented in 2011 in reference to the rule on Price
Escalation under Section 61.1 of the revised Implementing Rules and Regulations (IRR) of
Republic Act (RA) No. 9184, so as to lift the Notice of Disallowance issued by the CITEM Resident
Commission on Audit (COA) Auditor.

The authority of the GPPB to approve requests for contract price escalation is confined within
the limits of RA 9184 and its IRR. Under Section 61 of RA 9184, for the given scope of work in
the contract as awarded, all bid prices shall be considered as fixed prices, and therefore not
subject to price escalation during contract implementation, except under extraordinary
circumstances and upon prior approval of the GPPB. To provide the rules and procedures for
the implementation of this mandate of the law, the GPPB issued the Revised Guidelines for
Contract Price Escalation (Guidelines for brevity).

In order to justify the request for contract price escalation, it is necessary to establish that an
extraordinary circumstance occurred during contract implementation.
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The list of extraordinary circumstances, for purposes of approving requests for price escalation
is exclusive. x x x . The increase in the cost of implementing the scope of work should be caused
by an extraordinary circumstance as defined above, and not due to an increase in the quantity
of items as indicated in the awarded contract or deviation in the scope of work or technical
requirements of the project during contract implementation

The provisions of Section 61 of RA 9184 and its IRR and the rules and procedures in the
Guidelines do not apply when the contract price escalation is not based on an extraordinary
circumstance as defined in the Guidelines. This notwithstanding, it bears stressing that any
request for contract price escalation should be strictly processed in accordance with the review
and approval process under Section 5 of the Guidelines.

2015-12-29
NPM No. 176-2015

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Requesting Entity: Maritime Industry Authority (MARINA)
Issues Concern: Procurement of Common-use Supplies

Details
Exemption from Administrative Order (AO) No. 17 , Series of 2011, relative to MARINA's
procurement of inks/toners from the Procurement Service of the Department of Budget and
Management (PS-DBM)

It is beyond the power of the Government Procurement Policy Board (GPPB) to grant
exemption from AO 17, considering that it is no less than the President who issued the
administrative order, in accordance with the President's administrative powers under EO 292.
Accordingly, should MARINA intend to pursue its request for exemption from AO 17, it is
respectfully suggested that it file the appropriate request with the Office of the President.

On the other hand, in case of non-availability of stocks from the PS-DBM, MARINA may secure
a Certificate of Non-Availability of Stocks being issued by the PS-DBM, so that it may proceed
in the procurement of the common-use supplies and equipment from outside sources. This
mechanism is sanctioned by GPPB Resolution No. 24-2014 dated 31 October 2014.

2015-12-29
NPM No. 175-2015
Requesting Entity: Josmarc Enterprises
Issues Concern: Certificate of Acceptance

Details
Whether the BAC could legally require its bidders to submit a Certificate of Acceptance of their
offered goods aside from the submission of statement of completed similar projects.

The BAC is mandated to require all bidders to submit the end-user's acceptance, which can be
in the form of a Certification, or official receipt(s) relative to the Single Largest Completed
Contract in accordance with Section 23.1(a)(iv) of the IRR of RA 9184 and Clause 12.1(a)(iii) ITB
of the PBDs for Goods.

2015-12-29
NPM No. 174-2015
Requesting Entity: Joint Venture of Pilipinas Micro-Matrix Technology Inc. and Philcox
Philippines Inc.
Issues Concern: Tax Clearance; Bidding Documents; Failure of Bidding under Section 41

Details
Failure of Bidding on the ground that the template document for eligibility documents did not
reflect the Tax Clearance Certificate requirement

The Tax Clearance is now included as part of the Class "A" legal eligibility document and non-
submission of which is a ground for ineligibility, and the eventual disqualification of the bidder.
Nonetheless, bidders shall refer to the bidding documents, particularly the Invitation to Bid, for

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information on the preparation of their bids, which may include erroneous provisions caused
during its preparation, specifically the list of eligibility documents, following the principle that
all bidders must bid in equal footing. Consequently, the Head of the Procuring Entity may
declare a failure of bidding or not award the contract in accordance with Section 41 of Republic
Act (RA) No. 9184 and its revised Implementing Rules and Regulations (IRR) when the Bids and
Awards Committee failed to follow the prescribed procurement procedures, which include the
preparation of an accurate list of minimum eligibility requirements mandated under Section
24.1 of the IRR of RA 9184.

2015-12-29
NPM No. 173-2015
Requesting Entity: City of Bislig
Issues Concern: Technical Specifications

Details
Whether the procurement of two (2) different models for the purchase of the motorcycles
under the same procurement activity is in accord with Republic Act (RA) No. 9184 and its
revised Implementing Rules and Regulations (IRR).

A procuring entity, guided by lawful, valid, and reasonable limitations, may acquire goods of
different models so long as it complies with the specified minimum requirements provided in
its Technical Specifications. Otherwise stated, goods that consist of various models may be
offered by the prospective bidder, and the procuring entity may procure different models in
the same procurement activity provided that the different goods being offered meet the
minimum specifications and identified limitations required in the Technical Specifications and
that the offered price for the different models are the same.

2015-12-29
NPM No. 172-2015
Requesting Entity: Philippine Postal Corporation (PHLPost)
Issues Concern: Agency-to-Agency Agreements

Details
Does the act of PHLPost in having its Joint Venture (JV) partner undertake the printing of the
Philippine Health Insurance Corporation (PHIC) cards negate the Agency-to-Agency (A-to-A)
nature of the proposed Memorandum of Agreement between PHLPost and PHIC, considering
that the participation of the JV partner is not mentioned in the said MOA and considering that
the JV partner is a private entity?

Unless PHLPost is able to lawfully provide the basis(es) to provide "printing services" as part of
its legislative mandate, it may be gainfully said that "printing services" is not part of PHLPost's
functions under Republic Act No. 7354; and thus, the proposed arrangement with PHIC will not
fall within the purview of an A-to-A negotiated modality pursuant to the rules and the
Guidelines on A-to-A Agreement. Furthermore, the "printing services", which PHIC intends to
procure, will be ultimately performed by Filmetrics, notwithstanding the fact that the printing
of ID cards under the Biometric Data Service Facility is not covered by PHLPost-Filmetric's JVA.

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To pursue an A-to-A agreement, where a private entity ultimately performs the contractual
obligations of the Servicing Agency is not contemplated by the rules. The proposed setup, if
implemented, may put other market operators at a disadvantage specifically so when they are
capable of providing better quality "printing services" at the best price if the procurement
opportunity is subjected to competitive bidding. Unless exceptional circumstances exist to
warrant resort to other alternative methods of procurement, to competitively bid the
procurement opportunity is still the primordial mode of procurement under the circumstances.

2015-12-29
NPM No. 171-2015
Requesting Entity: Commission on Audit (COA)
Issues Concern: Deviations from the Requirements of RA 9184 and GPPB Rules and Regulations

Details
1. Whether a "new establishment" with no experience and no audited FS can be awarded a
government contract.

2. Whether the provisions of PPA's Administrative Order No. 04-2012 on the inclusion of new
establishment and the use of APP/COE consistent with the provisions of RA 9184.

In case of activities where the government entity partners with the private entity, where the
former is set to earn or gain something rather than spend public funds which is commonly
termed as PPP or JV, we propose for the review of the applicability of the Philippine BOT Law
or JV Guidelines. Section 4.4 of the IRR states that the rules "shall not apply to activities
involving public-private sector infrastructure or development projects and other procurements
covered by RA 6957, as amended by RA 7718, except those portions financed by the
government".

Corollarily, since the provision of RORO services in PPA ports is akin to a PPP agreement and/or
JV, the GPPB and its TSO is not in the position to render an opinion on the propriety of the
award made to the "new establishment" as well as the acceptability of the latter's documentary
submissions based on the PPA AO 04-2012 provisions.

3. Whether the Commission on Audit can use the said PPA AO 04-2012 as guidepost in the audit
of procurement of RORO Service Providers in Ports under the PPA.

In Caltex, Phils., Inc. v. COA, et al. , the Supreme Court rejected Caltex's argument that COA
cannot make its own interpretation of the laws in the light of the determination of executive
agencies which are entitled to great weight. Indeed, it is well within the jurisdiction of COA to
determine whether or not the fiscal responsibility that rests directly with the head of the
government agency has been properly and effectively discharged.
2015-12-29
NPM No. 170-2015
Requesting Entity: Industrial Technology Development Institute (ITDI) Department of Science
and Technology (DOST)
Issues Concern: Unsatisfactory Delivery of Goods

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Details
Actions to be undertaken relative to the Cancellation of Purchase Order, due to the
unsatisfactory delivery of goods by the supplier

In case the Supplier fails to perform any obligations under the Contract, such as delivery
unsatisfactory or inferior quality goods, thereby giving rise to a dispute or difference between
the PE and the Supplier, the parties are mandated to settle the dispute amicably, and enter into
arbitration if amicable settlement is not feasible pursuant to GCC Clause 20 and RA 9285. In
case of failure to settle, the PE may terminate the contract following the procedures laid down
in the Guidelines and GCC Clause 23. After contract termination, the PE shall blacklist the
Supplier for 1 or 2 years, as the case may be, in accordance with the procedures provided in
the Blacklisting Guidelines.

2015-12-29
NPM No. 169-2015
Requesting Entity: Bacolod City Water District (BCWD)
Issues Concern: Performance Security

Details
Which between the five percent (5%) performance security for delivery of goods and the ten
percent (10%) performance security for infrastructure projects shall be used, in case it is
necessary for the winning bidder to undertake an infrastructure component before it can the
delivery of the goods for Bulk Water Supply Project

It is not clear whether the project Bulk Water Supply Project Injection points 1 and 2 is a
procurement of goods or infrastructure projects. In case of projects involving mixed
procurements, we wish to clarify, however, that the nature of the procurement, i.e., goods,
infrastructure projects, or consulting services, shall be determined based on the primary
purpose of the contract. This means that if the project Bulk Water Supply Project Injections
points 1 and 2 includes both goods and infrastructure component, BCWD should determine the
nature of the project early on, i.e., whether the project is categorized as goods or infrastructure
project, based on the primary purpose of the contract.

The amount of performance security, if the form used is either cash, cashier's/manager's check,
bank draft/guarantee or irrevocable letter of credit issued by a Universal or Commercial Bank,
depends on the nature of procurement project as determined by the PE, that is, five percent
(5%) of the total contract price if the nature of the project is either goods or consulting services,
or ten percent (10%) of the total contract price if infrastructure projects.
2015-12-29
NPM No. 168-2015
Requesting Entity: Pangasinan State University
Issues Concern: Decision of the Bids and Awards Committee (BAC); Qualification of BAC
Chairman; Internal Check and Balance; Conflict of Interest

Details

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1. Will the Decision of the BAC to recommend award be considered valid even without the
presence and participation of the BAC Chairman? Can the Chair, by himself, invalidate the
decision of the BAC?

Notwithstanding the absence of the BAC Chairman, the decision of at least majority of those
present at the meeting, at which there is quorum, shall be valid and binding as an act of the
BAC, provided that the Vice-Chairman is present to preside the meeting.

The BAC Chairman cannot, by himself, overturn a decision of the BAC, as the power to approve
or disapprove a BAC recommendation is vested solely upon the HOPE in accordance with
Sections 37.1.2 and 37.1.3 of the revised Implementing Rules and Regulations (IRR) of Republic
Act (RA) No. 9184.

2. Is the University Engineer qualified as BAC Chairman on the basis of the organizational
structure ? Can the designation as BAC Chairman be based on trust, confidence and discretion
of the University President?

The Head of the Procuring Entity has the discretion to designate the University Engineer as BAC
Chairman as long as he has complied with the qualifications prescribed under Sections 11.2.1,
11.2.2 and 11.2.3 of the IRR of RA 9184.

3. Can the University Engineer be disqualified as BAC or Technical Working Group (TWG)
member on the grounds of violation on the rule on internal check and balance, and conflict of
interest, as he approves the Statement of Work Accomplished (SWA) by the contractors and
issues the Certificate of Completion (COC), and allegedly continues to be a consultant to the
contractors and suppliers who participate in the procurement activities of the University?

There seems to be no conflict between the functions of a BAC member who is at the same time
the University Engineer. Decisions/ recommendations of the BAC, as a collegial body, rests upon
the compliance of the lowest calculated/highest rated and responsive bidder with the legal,
technical and financial requirements of the project, subject to HOPE's approval. On the other
hand, the approval of SWA and issuance of COC by the University Engineer depends on the
contractor's compliance with the Program of Work prescribed in the contract. Please note that
even an official from the Engineering Office may be designated as a BAC member of the Local
Government Unit , even though its office approves the SWA and COC.

-xxx-

A public official or employee shall avoid conflict of interest at all times. The BAC shall ascertain
whether the relationship of the bidder to the Head of the Procuring Entity or any of its BAC,
TWG, Secretariat, or officers or employees having direct access to information that may
substantially affect the result of the bidding or any procurement processes, puts the bidder in
a position to unduly influence or be given preference in the award of the contract.

2015-12-22
NPM No. 167-2015

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Requesting Entity: Department of Health Regional Office XI (DOH - RO XI)
Issues Concern: Rental of Motor Vehicle

Details
Whether the contract of transportation services procured by DOH-RO XI falls within the
purview of "renting motor transport equipment" in NBC 446.

NBC 446 was issued by the Department of Budget and Management (DBM) to provide
guidelines on the acquisition and rental of motor vehicles. As such, DBM is in the best position
to determine the scope, coverage and application of the provisions of NBC 446.

Whether the effectivity of Republic Act (RA) No. 9184 repealed or amended NBC 446.

RA 9184 has for its subject matter the procurement of goods, infrastructure projects and
consulting services. Under Section 5(n) thereof, procurement shall also include the lease of
goods, which includes motor vehicles. On the other hand, Section 76 of EO 292 and the relevant
provisions of NBC 446 provide limitation on rental of motor vehicles. While these laws both
covers rental of motor vehicles, they prescribe different, but not conflicting rules. The former
lays down rules and procedures for the procurement of contract for rental of motor vehicles
while the latter sets limitation on the use of appropriations for renting motor transport
equipment. If at all, the two (2) legislations may even be regarded as complementary.

RA 9184 and its revised IRR did not repeal or amend Section 76 of EO 292 and NBC 446, in
relation to the provision on rental of motor vehicles because of the absence of an express
repealing clause to that effect nor a clear showing on the part of the lawmaker that the intent
in enacting the new law was to abrogate the old one.

2015-12-22
NPM No. 166-2015
Requesting Entity: Maritime Industry Authority (MARINA)
Issues Concern: Procurement Short of Award

Details
Applicable procurement rules or issuances relative to the conduct of procurement short of
award

Government agencies covered by the GPPB Circular and DBM Circulars are allowed to
commence procurement activities for PAPs that are included in the NEP, but the award of
contract shall be made only after the approval and effectivity of the GAA. Accordingly, MARINA
may refer to the aforementioned issuances (GPPB Circular No. 01-2009, DBM Circular Letter
No. 2010-9, and DBM National Budget Circular No. 551) for specific guidelines should it decide
to start its procurement for the 2016 SIRB requirements.

2015-12-22
NPM No. 165-2015

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Requesting Entity: Department of Science and Technology - Information Communications
Technology Office (DOTC-ICTO)
Issues Concern: Technical Eligibility; Foreign Bidders; and Joint Ventures

Details
If IBMP, a foreign owned company registered with the Philippines SEC and licensed to do
business in the Philippines, will act as a subcontractor to a third party bidder, whether the latter
can use the technical credentials of the former to meet the technical eligibility requirements
stated in the bidding documents.

Bidders are required to submit their own technical eligibility documents for purposes of
complying with the eligibility requirements. They cannot merely rely on the technical
credentials of their subcontractors or any other bidder. The bidders, on their own credentials,
shall be technically eligible to participate in any government procurement, unless the bidder is
a joint venture where the technical and financial capacity of one joint venture partner shall be
considered as the technical and financial capacity of all joint venturers.

If IBMP will participate as a bidder to the project, whether it will be considered as a local bidder
or a foreign bidder.

A corporation that failed to comply with the requirements of being duly organized under the
laws of the Philippines and of which at least sixty percent (60%) of the outstanding capital stock
belongs to citizens of the Philippines, shall be considered as a foreign consultant.

Whether IBMP is eligible to participate in the procurement project considering that it is


registered with the SEC, or IBM US is required to participate as the bidder with IBMP as the
company representative.

Participation of a foreign consultant to public bidding is contingent upon the determination of


the HOPE that Filipino consultants do not have the sufficient expertise and capability to render
the services required under the project, subject to the qualifications under Section 24.3.3. of
the IRR of RA 9184.

Whether IBMP, either acting as the bidder or subcontractor of a third party bidder, can use the
technical credentials of its affiliates in other countries such as IBM US.

A third party bidder cannot use the technical credentials of IBMP if the latter will act as
subcontractor of the former, unless they are participating under a Joint Venture Agreement.
Similarly, IBMP and any other third party bidder cannot use the technical credentials of other
contractors such as the IBM US. To reiterate, the bidder themselves shall be technically, as well
as legally and financially, eligible to participate in public bidding.

Whether an unincorporated Joint Venture (JV) is allowed to participate as a bidder to


procurement projects, and whether an unincorporated JV is required to be legally incorporated
after award of contract.

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Registration with the SEC is not necessary to make a JV valid in light of RA 9184; once the validity
of the agreement of the JV partners is established, the requirement under the procurement
law and rules is satisfied.

How is the 60% Filipino interest computed in an unincorporated JV?

The partners shall reflect in the JVA their respective contributions, which may be in the form of
monetary, property or industrial contribution; the determination of the required 60% Filipino
participation may be made by examining the terms and conditions of the Joint Venture
Agreement and other supporting financial documents submitted by the joint venture.

2015-12-22
NPM No. 164-2015
Requesting Entity: Phil-Asia Sales and Services
Issues Concern: Small Value Procurement

Details
Refusal to accept quotation from suppliers, contractors or consultants who were not given a
Request for Quotation by the procuring entity

Procuring Entities, in the conduct of SVP, are required to draw up a list of at least 3 suppliers,
contractors or consultants to whom the Request for Quotation will be sent, but supplier not in
the list, that were able to get hold of the information relative to the procurement opportunity
may also participate. The list of at least 3 suppliers, contractors or consultants is not a form of
accreditation as even those not in the list and were not invited may still participate.

2015-12-22
NPM No. 163-2015
Requesting Entity: Road Board
Issues Concern: Registration of Joint Venture

Details
1. Whether a Joint Venture is required to be registered with the Securities and Exchange
Commission (SEC) prior to award of contract.

A Joint Venture need not be registered with the SEC in order for it to be eligible to participate
in bidding activities. For purposes of the procurement process what is important is the
determination of the responsibilities and liabilities of each co-venturer and not the creation of
a separate legal entity. Hence, it is sufficient that the bidder submits a valid JVA in the case of
procurement of civil works; or, in the case of procurement of Goods and Consulting Services, a
valid JVA or a duly notarized statement from all the potential co-venturers stating that they will
enter into and abide by the provisions of the JVA in the instance that the bid is successful.

2. If a Joint Venture has been registered, what document shall be required as proof of such
registration.

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Once a Joint Venture has been registered with the SEC, it shall have a distinct and separate legal
personality from its co-venturers. Hence, the registered Joint Venture shall submit the
appropriate Certificate of Registration issued by the SEC as part of its eligibility documents
pursuant to Sections 23.1(a) and 24.1(a) of the IRR of RA 9184, including all the legal, technical
and financial requirements relevant to the newly created Joint Venture entity.

3. What is the liability of the Procuring Entity (PE) if the contract has been awarded to a
registered Joint Venture which failed to submit the appropriate SEC Certificate of Registration.

A Certificate of Registration issued by the SEC is one of the eligibility documents required to be
submitted by a prospective bidder registered as a partnership or a corporation. Hence, if it fails
to submit the appropriate Certificate of Registration, it shall be declared ineligible upon
determination by the BAC using the non-discretionary "Pass/Fail" criterion. Accordingly, an
award made to an ineligible bidder shall be null and void with the concerned BAC officials
bearing full responsibility of the failed bidding and award.

2015-12-22
NPM No. 162-2015
Requesting Entity: Commission on Audit
Issues Concern: Applicability of Section 11.2.5 of the IRR of RA 9184

Details
Whether the Bids and Awards Committee (BAC) of the Land Bank of the Philippines-Eastern
Mindanao Banking Group conforms with Section 11.2.5 of the revised Implementing Rules and
Regulations of Republic Act No. 9184

The approving authority contemplated under Section 11 of R.A. 9184 and its revised IRR refers
to the official who approves procurement transactions, who could be the Head of the Procuring
Entity (HOPE) or the person authorized by the HOPE to perform said function in his or her
behalf. x x x The prohibition stated in Section 11.2.5 of the IRR is intended to avoid any conflict
of interest on the part of the official who takes part in the selection process, and who would
eventually be the same official to approve the resultant contract. Consequently, such
prohibition does not apply to approving authorities where this conflict of interest is not present.

The rule that no Head of the Procuring Entity and/or approving authority should be the
chairman or a member of the Bids and Awards Committee also applies to the members of the
BAC in government-owned and/or -controlled corporations and national government agencies.

2015-12-22
NPM No. 161-2015
Requesting Entity: Kalinga-Apayao State College (KASC)
Issues Concern: Discount on Bid Price

Details
Whether the discount offered by a bidder should be deducted from the bidder's original bid
price or the Approved Budget for the Contract (ABC).

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The offer of discount contemplated under the IRR of RA 9184 shall be deducted from the total
bid price and not from the ABC. The discount can be validly considered in the computation of
the total calculated bid price during the bid evaluation stage. In addition, since the offered
discount does not qualify the methodology of its application, it can be presumed that the
discount will apply to the whole amount of the identified total bid price, that is, PhP
21,585,308.30. Thus, the total calculated bid may be determined by deducting PhP
2,585,305.30 from the bid price of PhP 21,585,308.30.

2015-12-22
NPM No. 160-2015
Requesting Entity: National Maritime Polytechnic
Issues Concern: Statement of Ongoing and Completed Government and Private Contracts

Details
Whether there has been any revision on the statement of the prospective bidder of all its
ongoing government and private contracts in relation to your procurement of security services

Since the effectivity of RA 9814 and its associated IRR, the GPPB has adopted several
procurement policies, which includes the amendment of Section 23.1(a)(iii) of the IRR of RA
9184 through GPPB Resolution No. 29-2012 issued on 23 November 2012.

Subsequently, the GPPB, through GPPB Resolution No. 16-2014 dated 20 June 2014.

-xxx-

The following are the latest amendments effected anent the statement of all ongoing
government and private contracts concerning the procurement of security services:

1. Distinction between the statement of all ongoing government and private contracts from the
statement identifying the single largest completed contract; and

2. Deletion of the ten (10) year period for the completed similar contract and the phrase "within
the relevant period as provided in the Bidding Documents."
2015-12-22
NPM No. 159-2015
Requesting Entity: BM Marketing
Issues Concern: Refusal to Sell Bidding Documents

Details
Whether the Bids and Awards Committee (BAC) may validly refuse to sell the Bidding
Documents on the ground of non-attendance of the prospective bidder in the pre-bid
conference as stated in the Invitation to Bid.

Section 17.3(a) of the IRR of RA 9184 clearly mandates the BAC to make available the bidding
documents from the time the Invitation to Bid (IB) is first advertised or posted until the deadline

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for submission and receipt of bids. xxx The BAC cannot limit the availability of the bid
documents at a date earlier than that mandated by Section 17.3 of the IRR, to do otherwise
would be to violate a mandatory provision of the rules.

-xxx-

Prospective bidders may purchase or secure a copy of the bidding documents even after the
conduct of the pre-bid conference, until the deadline for the submission and receipt of bids in
view of Section 17.3 of the IRR of RA 9184. The non-attendance of the prospective bidder during
the pre-bid conference should not in any way hinder her/him from purchasing or securing the
bidding documents.

2015-12-22
NPM No. 158-2015
Requesting Entity: Leighcheen Construction Corporation
Issues Concern: Audited Financial Statements

Details
Whether the submission of Audited Financial Statement (AFS) in accordance with Section
23.1(a)(iv) of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184 is applicable to the bidder, considering that it was established and registered only in 2015
and could only secure a "stamped" AFS from the Bureau of Internal Revenue (BIR) in 2016

The submission of the eligibility documents enumerated in Section 23.1 of the IRR of RA 9184
is a mandatory requirement that must be complied with by the prospective bidders, such that
failure to submit any of the documents or submission of an otherwise incomplete or patently
insufficient document, will disqualify the bidder based on the non-discretionary "pass/fail"
criterion under Section 30.1 of the IRR of RA 9184.

Considering that the AFS stamped "received" by the BIR is a Financial Eligibility Document under
Section 23.1(a)(iv) of the IRR of RA 9184, failure to submit the same shall render the bidder
ineligible to participate in a procurement activity.

2015-12-11
NPM No. 157-2015
Requesting Entity: Northern Iloilo Polytechnic State College (NIPSC)
Issues Concern: Procurement Timelines

Details
Whether the conduct of pre-bid conference within the seven (7) calendar day posting period in
the Philippine Government Electronic Procurement System (PhilGEPS) is in accordance with
Republic Act (RA) No. 9184 and its Implementing Rules and Regulations (IRR).

Under Section 21.2.2 of the IRR of RA 9184, aside from newspaper advertisement, the Invitation
to Bid shall likewise be posted continuously in the Philippine Government Electronic

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Procurement System (PhilGEPS) website, website of the Procuring Entity and at any
conspicuous place in the premises of the Procuring Entity for seven (7) calendar days, starting
from the date of advertisement. After the seven (7)-day posting period, the pre-bid conference,
for contracts with an approved budget of One Million Pesos PhP 1,000,000.00 and above, shall
be held at least twelve (12) calendar days before the submission and receipt of bids. Thus,
under the rules, the pre-bid conference must be conducted after the seven (7) calendar day
posting period. Proposal to conduct a pre-bid conference without completing the 7 day posting
period is not in accordance with the IRR of RA 9184.

2015-12-11
NPM No. 157-2015
Requesting Entity: Northern Iloilo Polytechnic State College (NIPSC)
Issues Concern: Procurement Timelines

Details
Whether the conduct of pre-bid conference within the seven (7) calendar day posting period in
the Philippine Government Electronic Procurement System (PhilGEPS) is in accordance with
Republic Act (RA) No. 9184 and its Implementing Rules and Regulations (IRR).

Under Section 21.2.2 of the IRR of RA 9184, aside from newspaper advertisement, the Invitation
to Bid shall likewise be posted continuously in the Philippine Government Electronic
Procurement System (PhilGEPS) website, website of the Procuring Entity and at any
conspicuous place in the premises of the Procuring Entity for seven (7) calendar days, starting
from the date of advertisement. After the seven (7)-day posting period, the pre-bid conference,
for contracts with an approved budget of One Million Pesos PhP 1,000,000.00 and above, shall
be held at least twelve (12) calendar days before the submission and receipt of bids. Thus,
under the rules, the pre-bid conference must be conducted after the seven (7) calendar day
posting period. Proposal to conduct a pre-bid conference without completing the 7 day posting
period is not in accordance with the IRR of RA 9184.

2015-12-11
NPM No. 156-2015
Requesting Entity: Provincial Poverty Reduction Action Team
Issues Concern: PhilGEPS Posting of BUB Projects

Details
Liability of the Local Government Units for non-compliance with the posting requirements on
the Philippine Government Electronic Procurement System (PhilGEPS) for Bottom-Up
Budgeting (BUB) Projects

Procurement activities under the BUB must comply with the PhilGEPS posting requirements
prescribed by RA 9184 and its revised IRR. Non-compliance with these posting obligations shall
render the accountable officials liable for dereliction of duty and conduct grossly prejudicial to
best interest of the service, without prejudice to other charges, whether administrative, civil,
or criminal that may be commenced under appropriate laws and regulations.

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2015-12-11
NPM No. 155-2015
Requesting Entity: Presidential Communications Development and Strategic Planning Office
Issues Concern: Direct Contracting of DNA Testing Services

Details
Procurement of DNA Testing Services from a foreign supplier through Direct Contracting
pursuant to Section 50 of the revised Implementing Rules and Regulations (IRR) of Republic Act
(RA) No. 9184.

The project involves the procurement of services and not of tangible goods as contemplated
under Section 50 of RA 9184 and its revised IRR. Thus, Direct Contracting may not be the proper
alternative modality for the identified procurement activity. This being the case, the procuring
entity may consider other alternative modalities of procurement, such as Small Value
Procurement, among others.

2015-12-11
NPM No. 154-2015
Requesting Entity: Negros Oriental State University (NORSU)
Issues Concern: Procurement of Individual Consultants

Details
Applicability of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184 to the procurement of individual consultants

The procurement of individual consultants is within the scope and application of RA 9184 and
its IRR, and is still subject to the rules on Competitive Bidding. On the other hand, the
engagement of a Highly Technical Individual Consultant may be conducted through Negotiated
Procurement; however, compliance with the requirements and procedures for the engagement
of Highly Technical Individual Consultants as an Alternative Mode of Procurement is still
required, such as, the posting of the Notice of Award must be observed at all times.

2015-12-11
NPM No. 153-2015
Requesting Entity: Fertilizer and Pesticide Authority (FPA)
Issues Concern: Term of Third Ranking Permanent Official as BAC Chairperson

Details
How long can a third (3rd) ranking official be a BAC Chairperson?

Upon expiration of the one (1) year fixed term, Section 11.2.6 of the IRR of RA 9184 gives the
HOPE the discretion to renew for another year the designation of the BAC Chairperson and the
other BAC Members. In this regard, the BAC Chairperson may be continuously re-designated as
long as the HOPE deems fit, and the former has shown efficiency and probity in the
performance of his duty. Conversely, the HOPE, in the exercise of sound discretion, is not

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precluded by the rules from designating the BAC Chairperson on a rotation basis or to appoint
a new Chairperson every year.

2015-12-11
NPM No. 152-2015
Requesting Entity: Social Security System (SSS)
Issues Concern: Observer's Access to Documents

Details
Whether Observers may be provided documents other than those enumerated in Section 13.5
of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184.

The responsibility of the Observers is grounded upon Section 13 of RA 9184 which allows
Observers to sit in "all stages of the procurement process". Specifically, the Bids and Awards
Committee (BAC) is required to invite Observers who may attend and observe all stages of the
procurement. The procurement process contemplated under Section 13 of the law and its
associated rules refers to "competitive bidding", which is defined as "a method of procurement
which is open to participation by any interested party and which consists of the following
processes: advertisement, pre-bid conference, eligibility screening of prospective bidders,
receipt and opening of bids, evaluation of bids, post-qualification, and award of contract."

It is clear that the phrase "all stages of the procurement" includes only the abovementioned
procurement stages. This incidentally excludes other proceedings in the IRR of RA 9184, such
as, but not limited to, those observed in the Protest Mechanism . Hence, the rights and
responsibilities of the Observers are limited to the same extent and the BAC may provide the
documents requested in accordance with Section 13.5 of the IRR of 9184.

2015-12-11
NPM No. 151-2015
Requesting Entity: Philippine Postal Corporation (PhilPOST)
Issues Concern: Multi-year contract

Details
Clarification on the propriety of the contractual arrangement wherein a procuring entity will
contract out a multi-year contract service with the Business Process Outsourcing (BPO)
companies.

Inasmuch as accountability for entering into multi-year contracts solely rests on the Bids and
Awards Committee (BAC) and the Head of the Procuring Entity (HOPE), it is prudent to validate
if your governing board is authorized to enter into multi-year contracts under the law creating
PhilPost, and whether there is no additional budgetary authority, similar to MYOA, required for
the purpose. In the event that PhilPost's governing board is not authorized to enter into multi-
year contracts, the proposed customer service contract with a BPO should be procured on a
yearly basis.

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2015-11-27
NPM No. 150-2015
Requesting Entity: Mactan-Cebu International Airport Airport (MCIAA)
Issues Concern: Period of Action on Procurement Activities

Details
Whether a Procuring Entity (PE) is mandated to resort to the earliest allowable time in the
conduct of its procurement

Annex "C" of the IRR of RA 9184 provided for the maximum periods and the earliest possible
time for action on specific procurement activities. Clearly, the rules allow the procuring entity
concerned to adopt a shorter period or the maximum period provided for under the IRR relative
to its procurement activity.

Prudence and related issuances dictate that in setting the timelines, PE is duty-bound to take
into consideration the details of the project, the relevant provision of the revised Implementing
Rules and Regulations of Republic Act. No. 9184, the "Guidelines for the Procurement and
Implementation of Contracts for Design and Build of Infrastructure Projects" ( Annex "G"),
including the period in securing the required eligibility documents under Sections 9.1 and 9.2
of the said Guidelines, and should ensure that competition, fairness, and transparency are well
observed in its procurement process.

2015-11-27
NPM No. 149-2015
Requesting Entity: Commission on Audit - Philippine Charity Sweepstakes Office (COA-PCSO)
Issues Concern: Procurement by Lot; Single Largest Completed Contract; Repeat Order;
Mandatory Timeline

Details
Whether the procurement of ambulance units divided into four lots, as well as the procurement
of additional 172 ambulance units by the PCSO through Repeat Order modality were in
accordance with Republic Act (RA) No. 9184 and its Implementing Rules and Regulations (IRR).

Procurement by Lot

Procurement of projects by lot is a recognized mechanism under existing government


procurement rules. The Philippine Bidding Documents (PBD) for the Procurement of Goods,
particularly Clause 1.2 of the Instructions to Bidders (ITB) and the corresponding Bid Data Sheet
(BDS) provision, requires Procuring Entities (PEs) to provide the name, identification, and
number of lots specific to the bidding.

Accordingly, the PE may identify - each item to be evaluated and awarded separately under
separate contracts; or, several items grouped together to form one complete lot to be awarded
to a single bidder to form a singular complete contract; or, similar items to be grouped into
several lots, and evaluated and awarded as separate contracts. In these wise, bids shall be
evaluated by the BAC depending on the packages or lots identified in the bidding document as

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above-mentioned vis-a-vis the application of the SLCC per item, per lot, or the entire package
or lot, as the case may be. Consequently, depending on the requirements provided for under
Section 28.3 of the ITB alongside specific instructions contained in BDS Clause 28.3 as to the
manner for which a bidder should submit its bid: i) a bidder may be awarded a contract for an
item; or, ii) a contract for a lot, or contracts for several lots; or, iii) a singular contract for all of
the lots.

Single Largest Completed Contract

[T]he reference of the required minimum percentage of the amount of the SLCC to be complied
with is the ABC. The reason behind such policy is that the ABC is a factor that appropriately
reflects the magnitude and complexity of a contract, such that a bidder who has completed a
similar contract of a reasonable percentage may be presumed capable of performing the
obligations if awarded the contract. Thus, in the case of a procurement that is divided into
several lots, where each awarded lot gives rise to a separate contract, the SLCC requirement
shall be based on the ABC for each lot.

Repeat Order

Repeat Order is one of the alternative modalities of procurement, it may be resorted to in the
procurement of goods from the previous winning bidder, whenever there is a need to replenish
goods procured under a contract previously awarded through Competitive Bidding if the
conditions set forth in Section 51 of the IRR of RA 9184 exist.

Mandatory Nature of the Procurement Timelines

The Supreme Court in the case of Jacomille v. Abaya, et al. held that the different periods
provided by RA 9184 within which certain stages of the procurement process must be
completed is not merely directory but mandatory.

[A]lthough the periods of action under RA 9184 and its IRR are mandatory in character, penal
sanctions or liability may not set in against the concerned public officers provided that
justifiable causes exist to warrant delay in the conduct of the procurement activities, provided
further, that the bid, including the bid security of the bidder remains valid.

2015-11-27
NPM No. 148-2015
Requesting Entity: Eulogio Amang Rodriguez Institute of Science and Technology (EARIST)
Issues Concern: Award of Contract

Details
Delayed award of contract due to change of administration and the approval of the Financial
Plan

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A Procuring Entity shall award the contract to the Lowest Calculated Responsive Bid within
three (3) months from the opening of bids. Failure to comply with this mandatory period will
certainly affect the validity of the bidding process.

2015-11-27
NPM No. 147-2015
Requesting Entity: Ms. Rachel Medrana
Issues Concern: Joint Venture

Details
Whether Joint Ventures are prohibited from participating in the procurement activity of a
procuring entity.

[T]here is nothing in RA 9184, its IRR, and allied rules that prohibits Joint Ventures from
participating in a procurement activity. On the other hand, the establishment of Joint Ventures
is encouraged to augment the technical and financial capacity of would be joint venturers,
especially in industries where there are limited suppliers, contractors, or consultants to provide
wider market participation to enhance competition, pursuant to Section 3 of RA 9184 and its
revised IRR.

2015-11-27
NPM No. 146-2015
Requesting Entity: Board of Investments (BOI)
Issues Concern: Ten (10)-Year Market Presence for Bidders in IT-Related Procurement

Details
Whether the Government Procurement Policy Board (GPPB) has existing rules requiring a
minimum of ten (10)-year market presence for bidders in an Information Technology (IT)-
related procurement

Presently, the GPPB has no existing rules or issuance requiring a minimum of ten (10)-year
market presence for bidders in IT-related procurement. The Procuring Entity (PE) has the
authority and discretion sanctioned by the law to determine what it needs to procure and craft
the necessary technical specifications and requirements to eventually satisfy these needs.
[H]owever, in the preparation of the technical requirements, the PE should be able to craft the
specifications without curtailing or limiting competition among market operators.

2015-11-27
NPM No. 145-2015
Requesting Entity: National Police Commission (NAPOLCOM)
Issues Concern: Small Value Procurement

Details
Whether NAPOLCOM may award a contract if only one (1) supplier submitted a quotation for
the procurement of goods undertaken through Small Value Procurement (SVP) in accordance

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with Section 53.9 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA)
No. 9184.

[I]n SVP, it is mandatory to send the Request for Quotation to at least three (3) prospective
bidders/proponents and invite them to submit proposals; but it is not necessary to actually
receive 3 quotations on the day of the deadline for submission of quotations. It is enough that
the procuring entity receives at least one (1) bid/proposal on the day of the deadline for
submission of quotations. Thus, if the lone proposal already complies with the technical, legal
and financial requirements of the procuring entity, the contract can be awarded to the lone
offeror, without the necessity of waiting for two (2) more quotations. After all, the rules provide
that "[t]he procuring entity shall draw up a list of at least three (3) suppliers, contractors, or
consultants of known qualifications which will be invited to submit proposals.

2015-11-27
NPM No. 144-2015
Requesting Entity: Senate of the Philippines
Issues Concern: Mandatory Filing of Tax Returns and Payment of Taxes through the Electronic
Filing and Payment System (EFPS) of the Bureau of Internal Revenue (BIR)

Details
Whether the submission of email confirmation/s from the BIR, showing payment and filing of
tax returns through the EFPS may be considered as compliance with the requirement under
Section 34.2 of the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184

[W]hat the rules require is the submission of the latest income and business tax returns filed
and paid through the EFPS and printed thru the Tax Return Inquiry facility of the BIR.
Consequently, the submission of other documents in lieu of the latest income/business tax
returns, such as email/s confirmation from the BIR showing payment and filing of tax returns
through the EFPS, cannot be considered in compliance with Section 34.2 of the revised IRR.

2015-11-27
NPM No. 143-2015
Requesting Entity: Government Service Insurance System (GSIS)
Issues Concern: Contract Approval by Higher Authority

Details
Inquiry on the determination of the higher authority that can approve the contract in case of
Government Owned and Controlled Corporations (GOCCs).

[T]he contract approval process embodied in Sections 7 and 8 of Executive Order No. 109, Series
of 2002 (EO 109), in so far as GOCCs are concerned, which conjunctively requires approval of
the Department Secretary, have been implicitly repealed by RA No. 9184, which grants the
governing boards of GOCCs or its duly authorized representative the full authority to approve
and sign all contracts. In view of the passage of RA 9184, the governing boards or its duly

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authorized representative now has full responsibility and accountability for all their contracts,
regardless of the amount.

The wordings of RA 9184 and its revised IRR clearly changed the contract approval process for
GOCCs such that the intent is to grant the approval of contracts only to the governing board or
its duly authorized representative.

- xxx -

In this regard, while the General Manager or any other official is designated as the HOPE, his
authority as such can be limited by the Governing Board, in which case, any procurement above
and beyond the limit imposed must be endorsed to the higher authority, which under Section
37.3 is the Governing Board or its duly authorized representative, for approval.

2015-11-27
NPM No. 142-2015
Requesting Entity: BD Medica Enterprise
Issues Concern: Additional Eligibility Documents

Details
Whether the Procuring Entity (PE) may impose additional eligibility documents other than those
required under Sections 23.1, 24.1, and 25.1 of the revised Implementing Rules and Regulations
(IRR) of Republic Act (RA) No. 9184.

PEs are proscribed from requiring additional requirements. The list of minimum eligibility
requirements under the revised Implementing Rules and Regulations (IRR) of Republic Act (RA)
No. 9184 has been streamlined/simplified, such that only those requirements enumerated in
Sections 23.1, 24.1, and 25.1 of the IRR are necessary for purposes of determining bidders'
eligibility.

-xxx-

[T]he PE may require additional documents not as additional eligibility documents, but as
additional documents pursuant to the Bidding Documents in relation to the financial
component of the bid, Section 25.2, or Section 34.2 of the revised IRR of RA 9184.

2015-11-27
NPM No. 141-2015
Requesting Entity: Philippine Science High School - Central Mindanao Campus (PSHS-CMC)
Issues Concern: HOPE Declaration of Failure of Bidding

Details
Whether the action of the Campus Director, the Head of the Procuring Entity (HOPE), of
declaring a failure of bidding for the reason that the said project is no longer applicable is valid
and if rebidding such project would violate the procurement law.

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As the approving authority, the HOPE is given discretionary power to approve or disapprove
the recommendations made by the BAC. The HOPE reserves the right to reject any and all bids,
declare a failure of bidding, or not award the contract based on the grounds provided in Section
41 of RA 9184 and its IRR, which is also reflected in the Invitation to Bid of the Philippine Bidding
Documents (PBDs). Nonetheless, when the HOPE exercises its power under the Reservation
Clause, he must be able to clearly show the existence of the ground/s relied upon. Moreover,
the same is not without any sanction if exercised capriciously.

As for the rebidding of the project, it is also within the procuring entity's authority, function,
and discretion to decide, whether the procurement should be eventually pursued according to
its needs and budget availability. Caveat must be made, however, that when a project has been
cancelled by the HOPE for reason provided for under Section 41 of the procurement law and
its IRR, the rebidding of the same project must be carefully studied.

2015-11-27
NPM No. 140-2015
Requesting Entity: Metropolitan Waterworks and Sewerage System (MWSS)
Issues Concern: Two-Year Contract for Shopping and Small Value Procurement

Details
Whether MWSS may enter into a two-year contract adopting the Guidelines for Shopping and
Small Value Procurement (Guidelines)

MWSS may enter into a two-year contract for its lease of heavy duty copying machines adopting
the Guidelines. However, MWSS should still comply with the applicable requirements in
resorting to alternative modalities of procurement and in entering into multi-year contracts as
required by the Department of Budget and Management.

2015-11-27
NPM No. 139-2015
Requesting Entity: Environmental Management Bureau (EMB)
Issues Concern: Procurement of Internet Service Provider (ISP)

Details
Whether the BAC may opt to procure anew a contract for Internet Services through public
bidding instead of renewing their existing contract.

Section 3.3.1 of the Guidelines on Procurement of Water, Electricity, Telecommunications, and


Internet Service Providers (Guidelines) provides guidance for the procurement of ISP by
government agencies with the existing ISPs, thereby allowing the renewal of the services of the
existing ISP upon favorable result of the assessment or cost-benefit analysis conducted by the
agency. It can then be gleamed from the Guidelines that it recognizes the fact that changing
ISPs entails interruption of internet access and thereby allowing renewal of the procurement
contract.

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Nevertheless, the procuring entity is not proscribed from bidding out its ISP, as Section 10 of
RA 9184 and its IRR identifies that Competitive Bidding shall be the default mode of
procurement. Competitive Bidding, aims to protect the public interest by giving the public the
best possible advantages thru open competition.

2015-11-27
NPM No. 138-2015
Requesting Entity: PITC Pharma, Inc. (PPI)
Issues Concern: Return of Protest Fee

Details
Whether the Procuring Entity may return the protest fee paid by the bidder when the
procurement is cancelled

[T]he nature of the protest fee determined by the law itself as non-refundable, and the
fundamental principles in disbursement of public funds, limits the authority of PPI to effect the
return of the protest fee paid for by the bidder, notwithstanding the intervening events that
led to the cancellation of the bidding process.

2015-11-27
NPM No. 137-2015
Requesting Entity: Philippine Institute for Development Studies (PIDS)
Issues Concern: Agency-to-Agency Agreement

Details
How to proceed with the engagement of the Philippine Statistiscal Authority (PSA) through the
Agency-to-Agency procurement where the Approved Budget for the Contract (ABC) is more
than the allowed 25% limit provided in the Implementing Guidelines on Agency-to-Agency
Agreements (Guidelines)?

It is the general policy of government to purchase its requirements from the private sector and
only in highly exceptional cases may one government agency procure from another
government agency when it is determined to be more efficient and economical.

Bearing this in mind, the GPPB opted to place a 25% cap in the respective budgets for each
procurement category of government agencies under Paragraph 5(a)(ii) of the Guidelines. The
condition is intended to discourage government agencies from adopting Agency-to-Agency
arrangements as the general rule in procurement transactions.

In this regard, we are of the view that the 25% limitation cannot be dispensed with unless there
is another law or rules that govern such procurement. As of this writing, this office is not aware
of any other justification for the use of such modality under the 1st paragraph of Section 53.5.

2015-11-27

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NPM No. 136-2015
Requesting Entity: National Manufacturing & Industrial Production Corporation
Issues Concern: ISO 9001:2008 and 14001:2004 Compliance

Details
1. Whether a procuring entity is proscribed from requiring additional eligibility requirements
such as the ISO certification

Procuring entities are proscribed from requiring additional eligibility requirements. x x x


[U]nder the revised IRR of RA 9184, the list of minimum eligibility requirements has been
streamlined/simplified, such that only those requirements enumerated in Sections 23.1, 24.1,
and 25.1 of the IRR are necessary for purposes of determining the bidders' eligibility.

2. Whether the foregoing prescription may be overruled by good faith in compliance with the
mandates of EO 301, S. 2004

Good faith compliance with Executive Order No. 301, S. 2004 is presumed. However, the claim
of good faith in the execution of an act is a matter of presumptive evidence, which may be
rebutted when contrary evidence is adduced, as when specific requirements are clearly
specified under existing rules and regulations.

3. Other than the Protest Mechanism under Section 55 of Republic Act (RA) No. 9184 and its
revised Implementing Rules and Regulations (IRR), what other reliefs are available to bidders in
case the procuring entity would insist on the imposition of additional eligibility requirements

The Protest Mechanism under Section 55 of Republic Act (RA) No. 9184 and its revised
Implementing Rules and Regulations (IRR) is the only administrative remedy available to
bidders in order for them to question Bids and Awards Committee and Head of the Procuring
Entity decisions.

4. Which judicial or quasi-judicial body has jurisdiction to rule on the judiciousness of imposing
additional eligibility requirements

The protest mechanism established in the procurement law and its associated rules, provides
that decisions of the BAC may be questioned by filing a request for reconsideration; if the BAC
denies such request, the decision may be subsequently protested by filing a verified position
paper to the HOPE. If the HOPE denies the Protest, then the bidder has the right to file a Petition
for Certiorari before the Regional Trial Court having jurisdiction over the case.

-xxx-

Only upon exhaustion of all available administrative remedies under RA 9184 and its IRR, and
proper motion by the bidder, may courts acquire jurisdiction over the judiciousness of the acts
of procuring entities.

2015-11-27

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NPM No. 135-2015
Requesting Entity: Science City of MuÑoz
Issues Concern: Bidder's Bond

Details
Whether a "Bidder's Bond", which is callable on demand with the specified amount equal to
five percent (5%) of the budget cost, is an acceptable form of bid security.

[A] bidder may submit a bidder's bond that is a surety bond callable upon demand issued by a
surety or insurance company duly certified by the Insurance Commission as authorized to issue
such security, which shall be in the amount equal to five percent (5%) of the ABC, if such form
of bid security has been identified by the PE as one of the forms allowed in the bidding
documents.

[T]he "Bidder's Bond" is an acceptable form of bid security provided that it is in the prescribed
form, amount, denomination, and validity in accordance with Section 27 of the IRR of RA 9184,
and that it is in the form the PE elected in its bidding documents.

2015-11-27
NPM No. 134-2015
Requesting Entity: RedDot Imaging Philippines, Inc.
Issues Concern: Use of Gartner's Magic Quadrant as Part of Technical Specifications

Details
Whether Gartner's Magic Quadrant can be included as part of Technical Specifications

[T] standards provided by Gartner Inc., may be used as a guide in developing technical
specifications for various procurements but the term "Gartner Standard" cannot be expressly
included or specifically stated in defining the technical requirements and in determining
compliance with the technical specifications.

xxx

[T]he requirement that brands should be those included in the latest Gartner's Magic Quadrant
for Global Enterprise Desktops and Notebooks cannot be specifically indicated in the technical
specifications of the bidding documents as it runs counter to the very essence and principle of
competition and to the prohibition against reference to brand names. [F]or the procurement
of goods, specifications shall be based on relevant characteristics and/or performance
requirements and not on a specific brand or "branded" goods.

2015-11-27
NPM No. 133-2015
Requesting Entity: Presidential Management Staff (PMS)
Issues Concern: Government Procurement Policy Board (GPPB) Resolution No. 03-2015

Details

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Whether GPPB Resolution No. 03-2015 , particularly the rules on the adjustment of Approved
Budget for the Contract (ABC), applies to lease of office space following the termination of the
previously awarded lease contract to a private entity.

A careful perusal of its provisions reveals that GPPB Resolution No. 03-2015 applies when the
method of procurement resorted to by the Procuring Entity (PE) is either Competitive Bidding,
Limited Source Bidding or Negotiated Procurement under Section 53.1 (Two-Failed Biddings) of
the revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184 as the
Resolution mentions Sections 35.2, 35.3 and 53.1 of the IRR of RA which refer to these methods
of procurement. The cited provisions pertain to the mandatory review of terms, conditions and
specifications of the Bidding Documents, including its cost estimates, and the adjustment of
ABC. Pointedly, these provisions state that any adjustment of the ABC shall be subject to
required approvals.

In this regard, it is our considered view that GPPB Resolution No. 03-2015 does not apply to the
adjustment of ABC for lease of office space that will be undertaken through Negotiated
Procurement under Section 53.10 of the IRR of RA 9184. This notwithstanding, any adjustment
of ABC for any method of procurement shall be:

1. reflected in the updated PPMP and APP;


2. approved by the HOPE or its duly designated second-ranking official;
3. consistent with the approved yearly budget; and
4. comply with the provisions of NBC No. 559, in relation to FY 2015 GAA, when the
adjustment will entail realignment of funds.

2015-11-27
NPM No. 132-2015
Requesting Entity: National Food Authority (NFA)
Issues Concern: Custodian of Procurement Records

Details
Which office should take the custody of the original documents pertaining to successfully
procured projects and other documents related to procurement undertaken by the Bids and
Awards Committee (BAC)

Section 14.1(d) of revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No.
9184 provides that the BAC Secretariat shall take custody of procurement documents and other
records.

Per Clause 20.3 of the Instructions to Bidders and Bid Data Sheet of the Philippine Bidding
Documents, the BAC has the discretion as to how many original documents and copies thereof
should be submitted by bidders. Accordingly, if the BAC has required only one (1) original copy
of bidding documents, the BAC Secretariat shall retain the same as its official custodian.

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