MikeLigalig.com

May 10 is just around the corner but it's sad to note that most of our voters' preferences revolve around personality cults rather than issues straight up. We often tend to shoot down the messenger even before first knowing the message he carries. Politics has become so muddled and fuzzy that all we see is the face of the person without digging deeper!

We tend to look at things face value and skin deep! But lest we wake up regretful and miserable for a terrible 3 years after May 10 we should be more meticulous with our choices at our one chance shot in bringing about true change in governance.

Looking at the local level we are bombarded by accusations of betrayal and wrongdoing from both major camps. In between we have the seemingly new and undefined leadership of a newcomer and a fresh face, very tempting in the midst of a strong clamor for change.

But to ask ourselves are we really making the best choices is rather simplistic. It will be a good sometime after that we will know the wisdom of our choices but are we prepared to take the risks?

Our people have suffered long enough that to vote and not be ready to defend and justify our choices would be to do injustice to the majority who have suffered silently.

No matter how we extoll  the virtues of our chosen candidates beneath the lovely exterior lies a skeleton of some sort.Whether it be worth the risk is for us to realize later on and be told in flat and unequivocal terms that " I told you so" is a matter of our choice.

But not to do anything about it is simply surrendering our fate to the hopelessness and pessimism that looms above.

So come May 10 just be sure when you go out there to exercise your right of choice that you do so out of a sense of scrutiny and conviction and not of awe and haste!

Good luck to us and God forbid what dire consequences come as a result of our choices.

SO THE PUBLIC MAY KNOW


BACOSH (Boholanos Against Corruption Oppression and Social Harassment) has been at the forefront on issues involving corruption, perceived anomalies and irregularities in governance to promote transparency  and ensure  accountability of our public officials.

Recent events unfolding on the alleged P168M heavy equipment bid rigging have prompted us to conduct an in-depth study on the issues involving the controversy based on documentary evidences culled from various sources.

We strongly fear a whitewash on the government probes on the matter based on our past experiences. More so, the review committee tasked to tackle the issues have conducted their meetings closed-door  despite clamor from the protestants and the media to attend such deliberations and the SP probe committee has yet to convene and start their own investigation.

In line with the intent of  EO 40 series of 2001 by the President of the Philippines and to cite some of its premises, we are compelled to take on the cudgels to inform the public of the following facts  surrounding this bidding controversy.
                                                              EXECUTIVE ORDER NO. 40
CONSOLIDATING PROCUREMENT RULES AND PROCEDURES FOR ALL
NATIONAL GOVERNMENT AGENCIES, GOVERNMENT-OWNED OR
-CONTROLLED CORPORATIONS AND GOVERNMENT FINANCIAL
INSTITUTIONS, AND REQUIRING THE USE OF THE GOVERNMENT
ELECTRONIC PROCUREMENT SYSTEM
WHEREAS, the principles of good governance call for transparency, accountability, equity, efficiency and economy in the government procurement process, and the eradication of malpractices, particularly graft and corruption;
WHEREAS, to enhance transparency in government procurement, the government shall encourage the public to monitor the procurement process and the awarding of contracts with the end in view of guaranteeing that these contracts are awarded pursuant to law.
What the BAC did    What is mandated by law under  the  IRR of RA9184 (IRR-A as amended,Fourth Edition,Government Procurement Policy Board,Technical Support Office, September 2007
1.Advertisement Period         Jan.7-21,2009                               Rule VI,Sec.17.5 “Prospective bidders shall  be given
2.Pre-Bid Conference               Jan.23,2009 at 10:00AM PGSO,   ample time to examine the bidding documents and to
                                                 Capitol Cmpd.,Tagb. City               prepare their respective bids.To provide ample time the
3.Issuance of Bid Documents January 23,2009                         concerned BAC shall promptly issue the bidding documents
4.Eligibility Check/Screening    February 9, 2009 at 9:AM,PGSO  for the contract at the time the Invitation to Apply for
   And Opening of Bids                                                                    Eligibility and to Bid is first advertised.”
5.Post-Qualification                  February 11,2009



Advertisement posted at:                                                             Sec.21.2.1 “Except as otherwise provided in Sections
1.   Sun Star Daily( Cebu)                                                      21.2.3 and 21.2.4  of this IRR-A and for the procurement
2.   Bohol Chronicle                                                                 of common-use goods and  supplies,the IAEB
3.   PGSO Bulletin Board                                                        shall be :
4.   Old Capitol Façade                                                           a) advertised at least once in one(1) newspaper of
5.   Provincial Library Lobby                                                        general nationwide circulation  which has been
6.   www.bohol.gov.ph                                                                 regularly published for at least two(2)  years
7.   Cebu Daily News                                                                  before the date of issue of the advertisement.”                                                                                                                                                               
   
Non-statement of the cost of bidding documents in the text of
Advertisement of the IAEB impairing bidders’ access to infor-
mation without further asking what Prov. Ord. 2004-21 is all
about.


“The BAC will issue bidding documents to interested                    Sec.21.1 “Contents of  the Invitation to Apply for
Bidders for the purchase of the above-mentioned equipment        Eligibility and to Bid.The Invitation to Apply for Eligibility
upon payment of a non-refundable amount pursuant to Prov’l.      and to Bid shall provide prospective bidders the following
Ordinance No. 2004-21.Payment shall be paid to the Provincial    information among others:
Treasurer’s Office from Monday-Friday,8:00AM-12:00NN and       6 The period of availability of the bidding documents,the
1:00PM-5:00PM.”                                                                                place where the bidding documents may be secured
and,where applicable the price of the bidding      documents.




The absence of the COA and observers in the proceedings.    Sec.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:”
                                                                                                         
                                                                                                         Sec.13.3 “Observers will be informed at least 2 days         
                                                                                                         before the stages of procurement to which  observers shall
                                                                                                         be invited: pre-bid conference; opening of bids; post quali-
                                                                                                         fication: and contract award:and special meetings of the
                                                                                                         BAC.The absence of observers will not nullify the BAC
                                                                                                         proceedings,provided that they have been duly invited in
                                                                                                         writing.   

                                                           
                                           
                                          Memorandum Order No. 144

REMINDING ALL HEADS OF THE NATIONAL GOVERNMENT AGENCIES, GOVERNMENT-OWNED
AND CONTROLLED CORPORATIONS, AND LOCAL GOVERNMENT UNITS TO
FAITHFULLY COMPLY WITH SECTION 13, ARTICLE V OF REPUBLIC ACT NO. 9184, "AN
ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF
THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES,"
ON INVITATION OF NON-GOVERNMENT ORGANIZATIONS AS OBSERVERS IN THE BIDS
AND AWARDS COMMITTEE PROCEEDINGS

Pursuant to Section 13, Article V of Republic Act (RA) No. 9184 and its Implementing Rules and
Regulations (IRR), all heads of National Government agencies, government-owned and
controlled corporations, and local government units are hereby reminded to invite, in all stages of
the procurement process, in addition to the representative of the Commission on Audit, at least
two (2) observers to sit in Bids and Awards Committee (BAC) proceedings, one (1) from a duly
recognized private group in a sector or discipline relevant to the procurement at hand, and the
other from a non-government organization (NGO), in order to enhance transparency of the
procurement process.

Issued this 13th day of August 2004
By authority of the President:
(Sgd.) ALBERTO G. ROMULO
Executive Secretary


     
     In the light of the above facts, it is not for us to pass judgment on people and personalities involved in the
     controversy but to make the public aware of the complexities on issues involving government purchases .If
     there is failure of the BAC  to follow the prescribed bidding procedures there is a remedy provided for by law
     under Sec.41of the IRR which is to declare the bidding a failure and not award the contract and start the process
     clean and free from suspicions of any irregularity. The records show that the bidding as conducted lacked the
     competitive spirit of an open competition as there were only a few bidders and only one bidder for the entire
     list of equipment.

     The Implementing Rules and Regulations of RA 9184 (The Government Procurement Act) are procedural
     in nature and carefully address in detail the different situations relative to procurement. The  law is meant to   
     ensure transparency all throughout the process with the aim in view of  getting what is most advantageous to
     the government without restricting, suppressing, stifling or nullifying competition.

     Lest we be accused of obstructing the delivery of basic services to our provincemates, it is not our intention to
     derail the purchase of these heavy equipment but to ensure that the public interest is protected  amidst some
     serious questions on the conduct of the bidding.We cannot just let these things pass and allow haste in the use
     of valuable taxpayers’ money to be simply swept under the rug.

     In the course of our study we uncovered  and discovered some interesting facts.The Province a few years back
     had already bought some P50-60M worth of heavy equipment. If these aren’t enough then perhaps, a little delay
     to rectify the current purchase of additional equipment would not hurt its road maintenance capabilities or
     would it,considering that these equipment bought brand new are still serviceable and up to par ?

    Incidentally, one of the perceived favored parties to this bidding, has been involved in a Senate inquiry into the
    P 1.5B alleged rigged bidding of heavy equipment conducted by the NIA head office in Manila. Similar
    allegations of abbreviated time periods in the conduct of issuance of bid documents were raised.

    Quite interestingly this same company figured in the controversial overpriced purchase of  a backhoe by the
    Provincial Government a couple of years ago which resulted in a generous donation of goods to poor Boholanos
    by the grateful supplier.

    In the wake of controversies hounding our present government and perceived anomalous disbursements of
    public funds, we call on our fellow Boholanos to be more vigilant and our public officials not to play deaf and
    dumb to the clamor for transparency and accountability.

    TAMA NA SOBRA NA ANG CORRUPTION IN GOVERNMENT!
   
    It’s time we start cleaning our own backyard. 













ON ALLEGATIONS THAT SPECIFICATIONS FAVOR A PARTICULAR BRAND

Republic of the Philippines
Province of Bohol
City of Tagbilaran

PROVINCIAL MOTOR POOL OFFICE

EQUIPMENT SPECIFICATION

BRAND NEW DUMP TRUCKS (6 WHEELERS)
(Specifications (Minimum Requirements)

Engine                       :  6 cylinders diesel engine with in line, direct injection, watercooled, turbo-charged     
                                      intercooler
Power Output            :  205 horsepower
Dump Capacity         :   5 cu. m
Wheels/Tires             :   10.00 x 20 14 ply rating
Equipped With          :   Parts book, operations manual, standard tools, spare parts/filters for first service and stereo 
                                      cassette AM/FM radio, power steering system
Warranty                   :   Free (1) year on parts and services and must have an accessible service center in
                                      Tagbilaran City or Cebu City

                                      Winning Bidders shall provide trainings to operators, drivers and maintenance personnel of
                                      the end- user.
                                      Standard tools for Dump Truck  : Hydraulic Jack and Tire Wrench.


Prepared by:
(Sgd.)  ABRAHAM D. CLARIN                              (Sgd.) EDWIN T. VALLEJOS
           Department Head                                                      Provincial Engineer
   Provincial Motor Pool Office                                             Provincial Engineer’s Office
                                                             
                                                                                                                             
ENGINE SPECIFICATIONS OF THE FAVORED BRAND (NISSAN PKB210 SERIES)

Make and Model                                               NISSAN DIESEL MOTOR, FE6T
Type                                                                 4-cycle, direct injection, water-cooled, turbo-charged, diesel engine
Number of Cylinders                                       6
Bore x Stroke                                                   108x126mm
Total Piston Displacement                               6,925cm3
Max. Output (JIS)                                            151 kW (205 PS) at 2800 rpm
Max. Torque (JIS)                                           579 N.m (59kgf.m) at 1700rpm
Max. Engine Speed                                         3200 rpm
Compression Ratio                                          17.5
Lubrication System                                         Forced feed by gear pump
Cooling System                                               Forced circulation by centrifugal water pump

ENGINE SPECIFICATIONS OF ANOTHER BRAND (MITSUBISHI FUSO FP517 SERIES) FOR COMPARISON

CHASSIS MODEL                                         FP517 SERIES                     
Engine Model                                                  MITSUBISHI FUSO 6D24-0A
Type                                                                 4 stroke-cycle, water-cooled direct injection diesel engine
No. of Cylinders                                               6  in line
Bore x Stroke                                                   130mm x 150 mm (5.12 in. x 5.91 in.)
Piston Displacement                                        11.945 L (729 cu. In.)
Compression Ratio                                          19.5:1
Max. Output                                                    177 kW (240 PS) (JIS)
                                                                        170 kW (231 PS) (DIN)
                                                                        174 kW (233 hp) (SAE, Gross)
                                                                        at 2,200  rpm (36.7 r/s)(1)
   


EXCERPTS FROM THE MINUTES OF THE PRE-BID CONFERENCE ON JANUARY 23, 2009

“Engr. Clarin read the specifications of the eight ( heavy equipment to be procured amounting to One Hundred Sixty Eight Million Two Hundred Ninety Six Thousand Pesos (P168,296,000.00). He emphasized that the technical specifications provided are the minimum requirements. He added that the Provincial Motor Pool at present has no fuel tanker and water truck. He further added that he preferred units the same with the existing units presently used in order to have possibility of cannibalizing some parts of the existing units in case the new units will bug down.”………….


“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 bug down. He further added that being the end-users they have the preference to choose the units which has the same quality & specifications with the existing ones.”…….

“Atty. Namocatcat clarified that despite the preference of the end-users, it does not preclude suppliers to offer another brand of better quality than the existing ones.”…………..

“Engr. Vallejos said that the minimum specifications are already fixed and we cannot go down with the specifications being provided.”     

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 advertised”.

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.”


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.”


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;”
.


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.”

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 â€" 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:”


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)   â€œTransparency 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)   â€œ  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   â€œThe 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.