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07 Protest Remedies Blacklisting Termination - editED
07 Protest Remedies Blacklisting Termination - editED
BLACKLISTING, AND
TERMINATION
Provided:
1. That a prior request for
reconsideration should have
been filed by the party concerned
in accordance with the preceding
Section, and
2. Request for reconsideration has
been resolved.
3
REQUISITES FOR FILING A VALID
PROTEST
1. Must be in writing (Verified Position Paper);
5
VERIFIED POSITION PAPER
The verified position paper shall contain the following
information:
6
VERIFIED POSITION PAPER
7
VERIFIED POSITION PAPER
In addition, the bidder shall likewise execute under oath a
certification against forum shopping stating that:
8
VERIFIED POSITION PAPER
9
RESOLUTION OF PROTESTS
Denied Request for Protest must be HOPE shall resolve
Reconsideration filed within 7 the protest within 7
calendar days from calendar days from
receipt by the party receipt thereof
concerned of the
resolution of the
BAC denying its
request for
reconsideration. Head of BAC Sec
shall furnish a copy
of the decision
• In the form of a within 7 calendar
Verified Position days from receipt.
Paper
• Payment of non-
refundable protest
fee
10
RESORT TO REGULAR COURTS
11
RESORT TO REGULAR COURTS
12
RESORT TO REGULAR COURTS
13
PROTEST FEES
GPPB Resolution 05-2012
ABC RANGE PROTEST FEE
50 million pesos and below 0.75% of the ABC
More than 50 million pesos to 100 PhP 500,000.00
million pesos
More than 100 million pesos to 0.5% of the ABC
500 million pesos
More than 500 million pesos to 1 PhP 2,500,000.00
billion pesos
More than 1 billion pesos to 2 0.25% of the ABC
billion pesos
More than 2 billion pesos to 5 PhP 5,000,000.00
billion pesos
More than 5 billion pesos 0.1% of the ABC
14
PENAL, CIVIL, AND
ADMINISTRATIVE
PROVISIONS
COVERAGE:
Imprisonment for not less than six (6) years and one
(1) day but not more than fifteen (15) years.
* Public officers conspiring with the private individuals are also liable
under
Government the provision.
Procurement Policy Board – Technical Support Office
OFFENSES COMMITTED
BY PRIVATE INDIVIDUALS
1. Submit eligibility requirements of whatever kind and
nature that contain false information or falsified
documents calculated to influence the outcome of the
eligibility screening process or conceal such information
in the eligibility requirements when the information will
lead to a declaration of ineligibility from participating in
public bidding.
SUSPENSION
The administrative interim penalty imposed for
infractions committed by a contractor during competitive
bidding stage, whereby such contractor is prohibited
from further participation in the bidding process of an
agency.
49
SANCTIONS
I. FIRST OFFENSE:
Suspension Blacklisting for one (1) year
50
COMPETITIVE BIDDING
PROCUREMENT STAGE
52
GROUNDS FOR BLACKLISTING
53
GROUNDS FOR BLACKLISTING
54
PROCEDURES FOR BLACKLISTING
Contractor shall
Initiation of BAC notifies submit its written
Action Contractor in answer to BAC
writing upon with
verification of documentary
existence of evidence and
grounds request for
Who may initiate? hearing, if he so
• Any bidder/prospective desires, within 5
bidder • That a complaint has cd from receipt
• Duly authorized observer been filed of notification
• BAC • That he has
opportunity to show
NO TIME
cause
EXTENSION
• That a hearing shall be
SHALL BE
conducted, upon ALLOWED
request
• The consequence of
being blacklisted 55
PROCEDURES FOR BLACKLISTING
IF CONTRACTOR DOES NOT SUBMIT ANSWER
C DISMISS
O THE
BAC Within 15 cd NO
N CASE
Does recommends to from receipt of
T BAC resolution
R NOT the HOPE the
suspension of and records of
A Submit BAC Proceeding,
answer the Contractor
C and the HOPE
T forfeiture of bid determines
O security. existence of YES HOPE
R reasonable issues a
cause Suspension
Order and
forfeiture
Within 5 cd from of bid
receipt of security
notification from
BAC
56
PROCEDURES FOR BLACKLISTING
BAC immediately
IF CONTRACTOR SUBMITS ANSWER sets the date and
time for hearing
58
PROCEDURES FOR BLACKLISTING
IF CONTRACTOR FILES MOTION
C
FOR RECONSIDERATION NO HOPE issues
O Blacklisting Order
HOPE
N resolves
T Files MR motion YES
Protest Appellate
R within 7 cd Authority
A from receipt resolves
C protest
T Within 3 cd from
within 7cd
O Filed with the
receipt of notice of
R appellate authority
decision, base on
within 7 cd from
the ff:
receipt of notice If protest is NOT
1. Decision does
not conform granted, HOPE
with the issues Blacklisting
evidence/facts Order.
2. Newly
discovered
evidence 59
PROCEDURES FOR BLACKLISTING
C
O
N Does HOPE issues Agency GPPB posts
T NOT file Blacklisting submits copy the
R MR Order of Blacklisting
A Blacklisting Order in the
C Order to GPPB
T GPPB within Website
O 7 cd after its
R issuance
Within 3 cd from
receipt of notice of
decision,
2. If the bidder did not file a Protest after his MR has been
denied, the Decision becomes final and executory after the
lapse of 7 days counted from receipt of the resolution on the
motion for reconsideration; or,
3. If a Protest was filed and the same was denied, the Decision
becomes final and executory upon receipt by the agency and
person/entity concerned of the Decision on the protest.
61
STATUS OF BLACKLISTED PERSON/
ENTITY
When does Blacklisting Order become final and executory?
2. If the bidder did not file an Protest Appeal after his MR has
been denied, the Decision becomes final and executory after
the lapse of 7 days counted from receipt of the resolution on
the motion for reconsideration; or,
3. If an Protest Appeal was filed and the same was denied, the
Decision becomes final and executory upon receipt by the
agency and person/entity concerned of the Decision on the
protest.
63
CONTRACT
IMPLEMENTATION
STAGE
66
GROUNDS FOR BLACKLISTING
67
GROUNDS FOR BLACKLISTING
68
GROUNDS FOR BLACKLISTING
69
PROCEDURE FOR BLACKLISTING
1. Undertake Contract Termination Proceedings: Refer to
Guidelines on Termination of Contracts under GPPB
Resolution No. 18-2004 dated 22 December 2004
70
PROCEDURE FOR BLACKLISTING
4. Where contract termination is no longer possible, but
the contractor committed acts which may constitute
ground(s) for blacklisting, the implementing unit shall,
within (7) days after the lapse of project duration, cause
the execution of a verified report, with all relevant evidence
attached, subject to the following procedures:
73
TERMINATION OF
CONTRACTS
(Annex “I” of 2016 IRR of RA 9184)
78
TERMINATION FOR DEFAULT
The PE shall terminate a contract when any of the following
conditions attend its implementation:
1. In contracts for Goods
a. outside force majeure, the Supplier fails to perform or
deliver any or all of the Goods, wherein such failure
amounts to at least 10% of the contract price;
b. As a result of force majeure, the Supplier is unable to
deliver or perform any or all of the Goods, wherein such
failure amounts to at least 10% of the contract price, for a
period of not less than 60 cd after receipt of notice from the
PE that the force majeure is deemed to have ceased;
c. The Supplier fails to perform any other obligation under the
Contract.
79
TERMINATION FOR DEFAULT
80
TERMINATION FOR DEFAULT
2. In contracts for Infrastructure Projects
81
TERMINATION FOR DEFAULT
2. In contracts for Infrastructure Projects
84
TERMINATION FOR INSOLVENCY
85
TERMINATION FOR UNLAWFUL
ACTS
The PE may terminate the contract in case it is
determined prima facie that the Supplier/
Contractor/ Consultant has engaged, before or
during the implementation of the contract in unlawful
deeds and behaviors relative to the contract acquisition
and implementation.
86
TERMINATION FOR UNLAWFUL
ACTS
Unlawful acts include, but not limited to, the following:
87
TERMINATION BY CONTRACTOR/
CONSULTANT
1. In contracts for Infrastructure Projects
The Contractor may terminate his contract with the PE
if the works are completely stopped for a
continuous period of at least 60 cd, through no
fault of its own for the following reasons:
i. Failure of PE to deliver supplies, materials, right-of-
way, or other items under the terms of the
contract; or
ii. Works is disrupted by adverse peace and order
situation, certified by the AFP Provincial
Commander and approved by the Secretary of
National Defense.
88
TERMINATION BY CONTRACTOR/
CONSULTANT
89
PROCEDURES FOR TERMINATION OF
CONTRACTS
1. Verification
90
PROCEDURES FOR TERMINATION OF
CONTRACTS
2. Notice to Terminate
The HOPE shall terminate contract only by written
notice to the Contractor/Supplier stating therein the
following:
i. the grounds and the statement of the acts that
constitute the grounds for which the contract is being
terminated;
ii. extent of termination;
iii. an instruction to the Supplier/ Contractor/Consultant to
show cause why the contract should not be
terminated; and
iv. special instruction of the PE, if any.
91
PROCEDURES FOR TERMINATION OF
CONTRACTS
2. Notice to Terminate
92
PROCEDURES FOR TERMINATION OF
CONTRACTS
3. Show Cause
93
PROCEDURES FOR TERMINATION OF
CONTRACTS
4. Decision
94
PROCEDURES FOR TERMINATION OF
CONTRACTS
4. Decision
95
PROCEDURES FOR TERMINATION OF
CONTRACTS
5. Take-over of Contracts
96
PROCEDURES FOR TERMINATION OF
CONTRACTS
Sections 53.3.1 to 53.3.3 of the IRR of RA 9184
provides for the procedures in conducting the
negotiation, thus:
1. The contract may be negotiated starting with the second lowest
calculated/highest rated bidder for the project under
consideration at the bidder’s original bid price.
97
PROCEDURES FOR TERMINATION OF
CONTRACTS
Sections 53.3.1 to 53.3.3 of the IRR of RA 9184
provides for the procedures in conducting the
negotiation, thus:
3. Authority to negotiate contracts for projects under
these exceptional cases shall be subject to prior
approval by the Heads of the Procuring Entities
concerned, within their respective limits of approving
authority.
98
PROCEDURES FOR TERMINATION OF
CONTRACTS
6. PE’s options in Termination for Convenience
Applies only to contract for Goods
Goods shall be accepted if performed or are ready for
delivery within 30 cd after receipt of Supplier’s Notice to
Terminate at the contract terms and prices.
Goods not yet performed or ready for delivery, PE may elect:
i. to have any portion delivered or performed and paid at the
contract terms and prices; and/or
ii. to cancel the remaining and pay to the Supplier an agreed
amount for partially completed or performed goods and for
materials and parts previously procured by the Supplier
99
PROCEDURES FOR TERMINATION OF
CONTRACTS
7. Notice by Contractor/Consultant
100
TH A NK Y O U !
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