Professional Documents
Culture Documents
07 Protest Remedies Blacklisting Termination - EDITED
07 Protest Remedies Blacklisting Termination - EDITED
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
1. Must be in writing (Verified Position Paper);
5
The verified position paper shall contain the following
information:
6
To be considered verified, the position paper shall
contain an affidavit stating that the affiant:
7
In addition, the bidder shall likewise execute under oath a
certification against forum shopping stating that:
9
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
Court Action may be resorted to only after the protest shall
have been resolved with finality. (Doctrine of Exhaustion of
Administrative Remedies)
11
Non-compliance with this statutory requirement, under Section
58 of R.A. No. 9184, constitutes a ground for the dismissal of
the action for lack of jurisdiction.
12
Protest must comply with Section 55 of R.A. 9184.
Where the protest was not verified and the protest fee
was not paid, respondent was held to have failed to
avail of the correct protest procedure before it filed its
petition for annulment of the award before the RTC.
13
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
Highest Standard of Ethics
COVERAGE:
* Public officers conspiring with the private individuals are also liable
under the provision.
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
I. FIRST OFFENSE:
Suspension Blacklisting for one (1) year
50
Government Procurement Policy Board – Technical Support51Office
1. Submission of eligibility requirements containing false
information or falsified documents.
2. Submission of Bids that contain false information or
falsified documents, or the concealment of such
information in the Bids in order to influence the
outcome of eligibility screening or any other stage of
the public bidding.
3. Allowing the use of one’s name , or using the name of
the name of another for purpose of public bidding.
52
4. Withdrawal of a bid, or refusal to accept an award, or
enter into contract with the government without
justifiable cause, after he had been adjudged as having
submitted the Lowest Calculated Responsive Bid or
Highest Rated Responsive Bid.
5. Refusal or failure to post the required performance
security within the prescribed time.
53
6. Refusal to clarify or validate in writing its Bid during
post qualification within a period of seven (7) calendar
days from receipt of the request for clarification.
7. Any documented unsolicited attempt by a bidder to
unduly influence the outcome of the bidding in his
favor.
8. All other acts that tend to defeat the purpose of the
competitive bidding, such as habitually withdrawing
from bidding or submitting late bids or patently
insufficient bids, for at least three (3) times within a
year, except for valid reasons.
54
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
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
BAC immediately
IF CONTRACTOR SUBMITS ANSWER sets the date and
time for hearing
58
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
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,
61
When does Blacklisting Order become final and executory?
1. If the bidder did not file a MR on the Decision to Suspend,
said Decision becomes final and executory after the lapse of
7 days counted from receipt of the Notice of the Decision;
or,
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,
63
Government Procurement Policy Board – Technical Support65Office
1. Failure of the contractor, due solely to his fault or
negligence, to mobilize and start work or performance
within the specified period in the Notice to Proceed
(“NTP”);
66
3. Assignment and subcontracting of the contract or any
part thereof or substitution of key personnel named in
the proposal without prior written approval by the
procuring entity;
67
5. For the procurement of consulting services, poor
performance by the consultant of his services arising
from his fault or negligence;
68
7. Willful or deliberate abandonment or non-performance
of the project or contract by the contractor resulting to
substantial breach thereof without lawful and/or just
cause;
69
1. Undertake Contract Termination Proceedings: Refer to
Guidelines on Termination of Contracts under GPPB
Resolution No. 18-2004 dated 22 December 2004
70
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:
71
Suspension or blacklisting of suppliers, contractors, or
consultants shall be made in accordance with the Uniform
Guidelines for Blacklisting of Manufacturers, Suppliers,
Distributors, Contractors, and Consultants. A suspended or
blacklisted supplier, contractor or consultant shall not be
allowed to participate in all procurement opportunities
of the government for the duration of the suspension
or blacklisting, regardless of the modality of
procurement employed by the Procuring Entity.
Removal of a person/entity from the Consolidated
Blacklisting Report.
73
(Annex “I” of 2016 IRR of RA 9184)
78
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
2. In contracts for Infrastructure Projects
80
2. In contracts for Infrastructure Projects
84
The PE shall terminate the contract if the
Supplier/Contractor/Consultant is declared bankrupt or
insolvent.
85
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
Unlawful acts include, but not limited to, the following:
87
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
2. In contracts for Consulting Services
89
1. Verification
90
2. Notice to Terminate
92
3. Show Cause
93
4. Decision
94
4. Decision
95
5. Take-over of Contracts
96
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.
98
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
7. Notice by Contractor/Consultant
100
CONTACT US AT:
TeleFax: (632)900-6741 to 44
Email address: gppb@gppb.gov.ph