We wish to contravene the following assertions and misleading interpretations of the law, particularly the IRR-A (Implementing Rules and Regulations as Amended Governing Local Purchases) of RA 9184 otherwise known as the Government Procurement Act, made by the Provincial Legal Counsel.
But first of all allow us to point out the rationale behind a public bidding. It is the mode of procurement mandated by law to procure goods and services and infrastructure projects by government which requires transparency in its processes.
To allow this, a wide dissemination of bid information and competitiveness by extending equal opportunity to eligible parties who are qualified to participate are encouraged. Any attempt to subvert, restrict or nullify competition by way of collusion and other means is seen as an affront to the whole idea of competitive public bidding and taken to mean a failure of the whole process.
As we wish to point out, we are questioning the procedures adopted by the BAC (Bids and Awards Committee) in the manner of implementing this contract which we have seen to be tainted with infirmities that undermine the whole bidding process.
1. On the period set from the first day of advertisement up to the opening of bids
The argument put forth by the Provincial Legal Counsel is totally missing the point. We do not wish to question the periods set forth in the IRR as they are very clear.
What we would like to stress however is let them interpret this provision in the IRR under Rule VI Sec 17.5 which states†Prospective bidders shall be given ample time to examine the bidding documents and to prepare their respective bids. To provide ample time, the concerned BAC shall promptly issue the bidding documents for the contract at the time the Invitation to Apply for Eligibility and to Bid is first advertised.†any which way they can..
The IAEB (Invitation to Apply for Eligibility and to Bid) was first published and posted in the Provincial Government website on January 7, 2009. It is very clear from the schedules given in the said publication and posting that the issuance of bid documents was set for January 23, 2009. (Annex A) Is this not a clear contravention of the aforecited section and rule in the IRR?
According to the BAC even as the issuance of bid documents was set on January 23, 2009 it does not mean that the documents were not available to the bidders right after the IAEB was first posted or published. They went further to say that two prospective bidders were able to secure bid documents and that complainant did not bother to ask.
In a desperate effort to cover up their shortcomings , the BAC is confusing the public with a clever use of semantics. But who are they trying to fool if not themselves? It does not take a clever Tom, Dick or Harry to understand what the law simply states and to quote†the concerned BAC shall promptly issue the bidding documents for the contract at the time the IAEB is first advertisedâ€.
The IRR does not say make available but issue promptly. It is very specific and cannot be interpreted any other way no matter which way you try to distort it. To make available and issuance in this sense are inter related.
What can you issue if it is not available and why not issue if indeed it is available. This defies logic and perhaps the BAC people are so distorted in their interpretation of things that they cannot distinguish fact from fiction. But of course, the advertisements and postings say it all. They are contradicting themselves in their frail effort to hide their incompetence.
Corollary to this issue according to the BAC is that two prospective bidders were able to secure bid documents. But a question arises as to when did this two get their documents? Who are these two? Are they not suppliers who had previous supply contracts with the same end-user before? Was it before the schedule of issuance or after the prebid conference?
If they were able to get these documents before the posted schedule, how could this be when the advertisement clearly stated otherwise and the cost for these documents were only established at the time of the pre-bid?
In previous pronouncements, the BAC Chairman said they did so, after the pre-bidding and she cited this to prove her claim that since these two bidders were Manila based, they could have learned about this because the publications chosen, specifically Sunstar Daily ( Cebu ) and Cebu Daily News had a nationwide circulation.
Again this brings us to another issue.
2. On the selection of newspapers where the IAEB was published
In the IRR particularly Sec.21.2.1 “Except as otherwise provided in Sections 21.2.3 and 21.2.4 of this IRR-A and for the procurement of common-use goods and supplies, the Invitation to Apply for Eligibility and to Bid shall be:
a) advertised at least once in one (1) newspaper of general nationwide circulation which has been regularly published for at least two (2) years before the date of issue of the advertisement.â€
The Provincial Legal Counsel argued that upon further verification it is established that Sunstar Daily has circulations in Metro Manila, Davao City and some parts of the Visayas and that Cebu Daily News being an affiliate of the Phil. Daily Inquirer is circulated in the Provinces of Oriental Negros, Bohol and Zamboanga del Norte.
You may perhaps find this explanation quite amusing for we all know this for a fact. This needs no further verification for undisputedly if you are nationwide you are physically circulated all throughout the Philippine Archipelago.
A few days ago, Complainant’s Counsel was interviewed by Sunstar Daily Cebu and a news report appeared in the CDN (Cebu Daily News).Perhaps by now this controversy may have gained nationwide prominence if we go by the Provincial Legal Counsel’s arguments. It is also interesting to note how the whole country must have shrunk because by his own rationale, citing a few provinces and some parts in the Visayas, this concept has now become nationwide.
The reporters who interviewed Counsel were amused at the fact that their respective news outfits were now elevated to the status of having a nationwide circulation from Aparri to Jolo for that matter.
Let it be known to the public that Sunstar Daily is more aptly a regional paper, it having sister publications like Sunstar Davao or Cagayan de Oro. What is published in Sunstar Daily Cebu is not the same in Davao and more obviously Notices or Invitations for Bids can only be read where it is particularly published. The same goes for the CDN which is a sister paper of the Inquirer.
Again this is pure deception to the public and a lame attempt to circumvent the law to tailor suit the BAC’s perception of things, which pattern, we have clearly seen from the very start of the bid proceedings. The IRR is very clear yet by clever interpretations we are led to believe that such is the intent of the law. But we need not argue further.
3. On the period of making available the bid documents
This point and the first point raised are closely related .However Atty. Lagunay argued further that upon carefully reading the letter complaint of counsel there was no allegation that the complainant ever asked for the bid documents.
Once more this is a frail attempt to hide the issue. Inquiries were made verbally through phone calls to the BAC Secretary and the information relayed was that bid documents were not yet ready and would only be available on the scheduled date after the pre-bidding as advertised. But again this is the real non-issue and not as what the Provincial Legal Counsel would like to downplay.
Important issues mandated by the IRR were not tackled as shown by the minutes (Annex B)of the pre-bid which we were able to secure a long time after the conference in violation of the IRR, Sec. 22.3 which states:
“The pre-bid conference shall discuss, among other things, the technical and financial components of the contract to be bid, and ,for the procurement of goods, the eligibility requirements. The minutes of the pre-bid conference shall be recorded and made available to all participants not later than three (3) calendar days after the pre-bid conference.â€
Atty. Lagunay emphasized that it is only natural that such issues asking for clarifications would crop up during a pre-bid conference. Quite true, but what is unusual and highly irregular in this instance is that bid documents were made available only after the pre-bid as shown by the schedules posted and published.
How on earth can we expect a detailed and thorough discussion of essential issues relative to the bidding when the attending bidders did not yet have the bid documents in their possession? As a matter of fact and it is in the minutes, it was only then that it was decided that the cost of documents will be based on the schedule of fees provided by Provincial Ord. 2004-21 (Annex C) .
Again this is in contravention of the specific provisions of the IRR Sec. 21.1 “ Contents of the Invitation to Apply for Eligibility and to Bid. The Invitation to Apply for Eligibility and to Bid shall provide prospective bidders the following information among others:
6. The period of availability of the bidding documents, the place where the bidding documents may be secured and, where applicable the price of the bidding documents;â€
.
4. On the minimum specifications of the equipment.
We beg to disagree with the Atty. Lagunay that the way the specifications were presented by the end -user is not expressing preference at all.
Again let me bring you back to the minutes of the pre-bid conference wherein to quote †Engr. Vallejos said that the office has some existing units of the heavy equipment and they have proven that the performance and services of the said equipment are good. He added that it was being emphasized by the Governor to utilize some parts of the existing equipment in case the new equipment will bog down. He further added that being the end-users they have the preference to choose the units which have the same quality and specifications with the existing ones.â€
What preference if at all is he talking about? Although it can be argued that the specifications are descriptive and not restrictive as the BAC Chairman pointed out, and as Atty. Lagunay opined that preferred specifications and preferred brands are not the same, it can be shown as we dissect this clever use of terminologies that indeed they are analogous.
A particular equipment type or model is best described by its specifications. For example, the length of its track the horsepower rating of its engine, the size of its bucket, and the width of its blade among other descriptions would refer to a particular model without even mentioning names. The more you go into details and particulars such as specifying a turbocharger for the engine, the more you are restricting it to suit a particular model in the market because not all engines are turbocharged.
When hiring a waitress for example, by indicating 18-25 years old for age requirement, you are not restricting your choice. But qualifying it at 18 years of age would be restricting it. Thus to set the minimum requirements or specifications would be to set a range.
To level the playing field it would be more appropriate to state engines from 150-180HP, a track length of 3,850mm – 4,458mm and so on and so forth. Without losing preference for your desired specifications you are allowing a range of options and opening it to more competition with the aim in view of choosing what is most advantageous to the government
The minimum specifications as spelled out by the end-user fall short of describing in detail a particular brand of equipment. (Annex D- Minimum Specifications for a Hydraulic Excavator). Coupled with the end-user’s statements during the pre-bid conference one cannot help but suspect that the minimum requirements are tailor-suited to a particular make or model. A very clever way once again of circumventing the law on naming brands but hardly fool proof !
5. On the allegation that the bidding is rigged
Thus far we have shown the infirmities and procedural lapses that undermine the bidding process. Whether these are deliberate or not are subject for further scrutiny but circumstantial as they may seem one cannot help but question the entire proceedings which from the very start are seriously flawed.
We begin by citing these apparent violations of the IRR
I. Rule VI , Sec. 17.5
Why can’t the BAC expressly adhere to the provisions of the IRR as
mandated by law? The time from the issuance to the time of dropping of bids
is tight. As shown in the website for postings of the BAC there seems to be a pattern.
To mention a few, biddings for small projects follow this section to the letter but projects of a much bigger amount and which generated some controversy in its implementation like the Delivery of Isuzu Crosswind Vehicles to the SP and Purchase of Agricultural Supplies for Bohol Fertilizer Assistance Project as well as this 168M Heavy Equipment Purchase do not.
II. Sec. 13 Observers
13.1 “To enhance the transparency of the process, the BAC shall, in all stages of the procurement process, invite, in addition to the representative of the COA, at least two (2) observers to sit in its proceedings:â€
This section goes on to state the qualifications of the observers, where they should be taken from as well as their functions. But we believe that this was not the case for this bidding. The minutes of the pre-bid would bear us out as well as for the other proceedings.
This provision on transparency is not to be taken lightly because a Memorandum Order No. 144 by no less than the President of the Philippines urges all government entities to faithfully comply
with it.
III.Sec.21.2.1-Advertising in a Newspaper of General Nationwide Circulation
IV. Sec.21.1 - Contents of the Invitation to Apply for Eligibility and to Bid
V. Rule I, Sec 3 (a) and (b)
(a) “Transparency in the procurement process and in the implementation of procurement contracts through wide dissemination of bid opportunities and participation of pertinent non-government organizations.
(b) “ Competitiveness by extending equal opportunity to enable to enable private contracting parties who are eligible and qualified to participate in public bidding. “
6. Company Profile of Kowa Tsusho
It seems odd that the Provincial Legal Counsel would go to extra lengths to research Kowa Tsusho’s website and categorically state and condition the minds of the public that were it to bid on the project it would have been disqualified anyway.
This would be the height of presumptuousness. The company is not only disenfranchised from participating in the questioned bidding because of the time constraint ,which is why it is complaining, but is now the object of an apparent effort to discredit it.
Anyone knows in this day and age that a website does not necessarily state a company’s stature. It is quite amazing that they have disqualified the company despite being unable to bid and submit its documents. Is it being persecuted for being a whistleblower, inviting public attention to this apparent wrongdoing and effort to subvert the bidding process?
The BAC could not wait to finish this project and implement it in haste disregarding the safeguards intended by the IRR for the Government Procurement Act.
Why are they afraid to let competitive bidders enter the bidding? The Procuring Entity is vested with broad powers that it can reject any and all bids, waive any defects or informality of the bid proposals received and accept the offer it deems most advantageous to the government.
7. Formal Protest
Once again the Provincial Legal Counsel is downplaying the legitimacy of our grievances by subjecting it to a test of mere technicalities. This obviously is quite beside the point.
Are the issues raised not legitimate enough to merit even a closer look? Specific provisions of the IRR were violated en toto and yet the powers that be are playing deaf and blind, closing ranks to condemn the complainant and treat it as a sore loser when it is not?
We have only cited the flaws in the process and as sure as the sun rises in the east we will eventually get to an overpriced purchase at that.
8. Recommendation
We have painstakingly shown , there has been a pattern of violations and utter disregard for the IRR. We cannot help but conclude that the bidding process was restricted, suppressed and nullified by such acts. Open competition was stifled and as a result the whole process has failed.
In the light of all these, we sincerely urge the Provincial Leadership to reconsider its decision of going ahead with the planned purchase.
In the interest of transparency and being sensitive to public accountability, they should reevaluate the bidding process they have adopted and strictly adhere to the IRR of the law.
Sec. 41. Reservation Clause
41.1 “The procuring entity reserves the right to reject any and all bids declare a failure of bidding ,or not award the contract in the following situations:
a) If there is prima facie evidence of collusion between appropriate public officers or employees of the procuring entity, or between the BAC and any of the bidders, or if the collusion is between or among the bidders themselves, or between a bidder and a third party, including any act which restricts, suppresses or nullifies or tends to restrict, suppress or nullify competition;
b) If the BAC is found to have failed in following the prescribed bidding procedures “
The results of the bidding have shown that with only a handful of bidders it is not a showcase of an open and well disseminated competition. Does it serve the best interest of the government? This we seriously doubt for government should be of laws rather than of men.
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