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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
Under the New Government Procurement Act, within a period of not exceeding ten (10) calendar days from the determination and declaration by the Bids and Awards Committee (BAC) of the Lowest Calculated Responsive Bid (LCRB), Highest Rated Responsive Bid (HRRB), or Most Economically Advantageous Responsive Bid (MEARB) as the case may be, and the recommendation of the award, the Head of Procuring Entity (HoPE) or the duly authorized representatives shall approve or disapprove the said recommendation. In case of approval, the HoPE or the duly authorized representative shall immediately issue the Notice of Award to the bidder with the LCRB, HRRB or MEARB.
Notice and Execution of Award
The winning bidder shall formally enter into contract with the Procuring Entity within ten (10) calendar days from the receipt of the notice of award. When further approval of higher authority is required, that approving authority for the contract shall be given a maximum period of fifteen (15) calendar days from receipt of the contract to approve or disapprove it.
In case of Government Owned and Controlled Corporations (GOCCs), the concerned board shall take action on the said recommendation within twenty (20) calendar days from receipt thereof. The prescribed periods for execution and/or approval of contracts may be extended for reasons beyond the control of the Procuring Entity or the approving authority, or for other justifiable causes.
In the event that the approving authority shall disapprove the contract, such disapproval shall be based only on valid, reasonable, and justifiable grounds to be expressed in writing. A copy of the decision to disapprove the contract shall likewise be furnished to the BAC.
The Procuring Entity shall issue the Notice to Proceed to the winning bidder not later than three (3) calendar days from the date of approval of the contract by the appropriate authority. All notices called for the terms of the contract shall be effective only at the time of receipt thereof by the contractor.
Period of Action on Procurement Activities
The period from the opening the bids up to the award of contract shall not exceed sixty (60) calendar days.
All members of the BAC shall be on a jury duty type of assignment until the Notice of Award is issued by the HoPE in order to complete the entire procurement process at the earliest possible time.
Performance Security
Prior to the signing of the contract, the winning bidder shall, as a measure of guarantee for the faithful performance of and compliance with its obligations under the contract prepared in accordance with the Bidding Documents, be required to post a performance of and compliance with its obligations under the contract prepared in accordance with the Bidding Documents, be required to post a performance security in such form and amount as may be specified by the Government Procurement Policy Board (GPPB): Provided, That sectors enumerated under this Act may be allowed to post other forms such as performance securing declaration.
The Individual Contract (IC) shall identify the surety companies that may be tapped to issue and/or performance bonds. The list of surety companies identified by the IC shall include only those whose surety business is ready to provide callable-on-demand surety contracts, where the Procuring Entity can claim outright on the surety contract and receive the proceeds thereof upon default of the bidder. The performance security posted by the winning bidder must remain effective until final acceptance by the Procuring Entity.
Failure to Enter into Contract and Past Performance Security
If for justifiable causes, the bidder with the LCRB, HRRB, or MEARB, as the case may be, fails, refuses, or is otherwise unable to enter into contract with the Procuring Entity, or if the bidder fails to post the required performance security within period stipulated in the Bidding Documents, the BAC shall disqualify the said bidder and shall undertake post-qualification for the next-ranked Lowest Calculated Bid (LCB), Highest Rated Bid (HRB), Most Economically Advantageous Bid (MEAB). This procedure shall be repeated until an award is made. However, if no award is possible, the contract shall be subjected to a new bidding.
In case of failure to post the required performance security, the bid security shall be forfeited without prejudice to the imposition of sanctions prescribed under this Act.
Reservation Clause
The Head of Procuring Entity (HoPE) reserves the right to reject any and all Bids, declare a failure of bidding, or not award the contract in the following situations:
- 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;
- If the BAC is found to have failed in the following the prescribed bidding procurement; or
- For justifiable and reasonable grounds where the award of the contract will not redound to the benefit of the government in the following instances: (1) if the physical and economic conditions have significantly changed so as to render the project no longer economically, financially, or technically feasible, as determined by the HoPE; (2) if the project is no longer necessary, as determined by the HoPE; or (3) if the source of funds for the project has been withheld or reduced through no fault of the Procuring Entity.
Contract Implementation and Termination
The rules and guidelines for the implementation and termination of contracts awarded pursuant to provisions of this Act shall be prescribed in the Implementing Rules and Regulations (IRR).
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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