RA_9184.pdf

Implementing Rules and Regulations of Republic Act No. 9184 IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT RULE I – GENERAL PROVISIONS Section 1...

Implementing Rules and Regulations of Republic Act No. 9184 IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT RULE I – GENERAL PROVISIONS Section 1. Purpose and General Coverage This Implementing Rules and Regulations (IRR) Part A, hereinafter called “IRR-A,” is promulgated pursuant to Section 75 of Republic Act No. 9184 (R.A. 9184), otherwise known as the “Government Procurement Reform Act” (GPRA), for the purpose of prescribing the necessary rules and regulations for the modernization, standardization, and regulation of the procurement activities of the government. This IRR-A shall cover all fully domestically- funded procurement activities from procurement planning up to contract implementation and termination, except for the following: a) Acquisition of real property which shall be governed by Republic Act No. 8974 (R.A. 8974), entitled “An Act to Facilitate the Acquisition of Right-of-Way Site or Location for National Government Infrastructure Projects and for Other Purposes,” and other applicable laws; and b) Private sector infrastructure or development projects and other procurement covered by Republic Act No. 7718 (R.A. 7718), entitled “An Act Authorizing the Financing, Construction, Operation and Maintenance of Infrastructure Projects by the Private Sector, and for Other Purposes,” as amended: Provided, however, That for the portions financed by the Government, the provisions of this IRR-A shall apply. The IRR-B for foreign-funded procurement activities shall be the subject of a subsequent issuance. Section 2. Declaration of Policy The provisions of this IRR-A are in line with the Government’s commitment to good governance and its effort to adhere to the principle of transparency, accountability, equity, efficiency, and economy in its procurement process. It is the policy of the Government that procurement of infrastructure projects, goods and consulting services shall be competitive and transparent, and therefore shall be through public bidding, except as otherwise provided in this IRR-A. It is also the policy of the Government to adopt a standard and uniform set of rules and regulations governing the procurement of infrastructure projects, goods and consulting services for government projects and other related activities that embodies a streamlined procurement process. Section 3. Governing Principles on Government Procurement Government procurement shall be governed by these principles: 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 private contracting parties who are eligible and qualified to participate in public bidding. Implementing Rules and Regulations of Republic Act No. 9184 c) Streamlined procurement process that will uniformly apply to all government procurement. The procurement process shall be simple and made adaptable to advances in modern technology in order to ensure an effective and efficient method. d) System of accountability where both the public officials directly or indirectly involved in the procurement process as well as in the implementation of procurement contracts and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their actions relative thereto. e) Public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of the Act and this IRR-A, and that all these contracts are performed strictly according to specifications. Section 4. Scope and Application of IRR-A 4.1. This IRR-A shall govern and apply to the procurement of: a) infrastructure projects; b) goods; and c) consulting services, by any branch, agency, department, bureau, office, or instrumentality of the Government, including government-owned and/or -controlled corporations (GOCCs), government financial institutions (GFIs), state universities and colleges (SUCs), and local government units (LGUs). 4.2. This IRR-A shall apply to the procurement of infrastructure projects, goods, and consulting services by any procuring entity, subject to the provisions of Commonwealth Act No. 138, otherwise known as the “Flag Law.” Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine Government is a signatory shall be observed. Section 5. Definition of Terms For purposes of this IRR-A, the following terms or words and phrases shall mean or be understood as follows: a) Act. Refers to Republic Act No. 9184, entitled “An Act Providing for the Modernization, Standardization and Regulation of the Procurement Activities of the Government and for other Purposes,” otherwise known as the Government Procurement Reform Act. b) Approved Budget for the Contract. Refers to the budget for the contract duly approved by the head of the procuring entity, as provided for in the General Appropriations Act (GAA) and/or continuing appropriations, in the case of national government agencies (NGAs); the corporate budget for the contract approved by the governing board, pursuant to Executive Order No. 518, series of 1979 (“E.O. 518”), in the case of GOCCs and GFIs, and Republic Act No. 8292 in the case of SUCs; and the budget approved by the Sanggunian in the case of LGUs. For purposes of, and throughout, this IRR-A, the terms “ABC,” “Approved Budget for the Contract” and “Approved Budget” shall have the same meaning and shall be used interchangeably. c) BAC. Refers to the Bids and Awards Committee established in accordance with Rule V of this IRR-A. d) Bid. Refers to a signed offer or proposal to undertake a contract submitted by a bidder in response to and in consonance with the requirements of the bidding documents. For purposes of, and throughout, this IRR-A, the term “Bid” shall be 2 Implementing Rules and Regulations of Republic Act No. 9184 equivalent to and be used interchangeably with “Proposal” and “Tender,” particularly when referring to the procurement of consulting services. e) Bidder. Refers to an eligible contractor, manufacturer, supplier, distributor and/or consultant competing for the award of a contract in any government procurement. A contractor, manufacturer, supplier, distributor or consultant is said to be eligible if it meets all the eligibility requirements issued by the procuring entity. f) Bidding Documents. Refer to the documents issued by the procuring entity as the bases for bids, furnishing all information necessary for a prospective bidder to prepare a bid for the infrastructure projects, goods and/or consulting services required by the procuring entity. g) Common-Use Supplies. Refer to those goods, materials and equipment that are repetitively used in the day-to-day operations of procuring entities in the performance of their functions. For the purpose of this IRR-A, common-use supplies shall be those included in the Price List of the Procurement Service (PS) of the Department of Budget and Management (DBM). h) Competitive Bidding. Refers to a method of procurement which is open to participation by any interested party and which consists of the following processes: advertisement, pre-bid conference, eligibility screening of prospective bidders, receipt and opening of bids, evaluation of bids, post-qualification, and award of contract. For purposes of, and throughout, this IRR-A the terms “Competitive Bidding” and “Public Bidding” shall have the same meaning and shall be used interchangeably. i) Consulting Services. Refer to services for Infrastructure Projects and other types of projects or activities of the Government requiring adequate external technical and professional expertise that are beyond the capability and/or capacity of the Government to undertake such as, but not limited to: (i) advisory and review services; (ii) pre-investment or feasibility studies; (iii) design; (iv) construction supervision; (v) management and related services; and (vi) other technical services or special studies. j) G-EPS. Refers to the Government Electronic Procurement System as provided in Section 8 of this IRR-A. k) Goods. Refer to all items, supplies, materials and general support services, except consulting services and infrastructure projects, which may be needed in the transaction of public businesses or in the pursuit of any government undertaking, project or activity, whether in the nature of equipment, furniture, stationery, materials for construction, or personal property of any kind, including non-personal or contractual services such as the repair and maintenance of equipment and furniture, as well as trucking, hauling, janitorial, security, and related or analogous services, as well as procurement of materials and supplies provided by the procuring entity for such services. The term “related” or “analogous services” shall include, but not be limited to, lease or purchase of office space, media advertisements, health maintenance services, and other services essential to the operation of the procuring entity. l) GPPB. Refers to the Government Procurement Policy Board created in accordance with Rule XX of this IRR-A. m) Head of the Procuring Entity. Refers to: (i) the head of the agency or body, or his duly authorized official, for NGAs and the constitutional commissions or offices, 3 Implementing Rules and Regulations of Republic Act No. 9184 and branches of government; (ii) the governing board or its duly authorized official, for GOCCs, GFIs and SUCs; or (iii) the local chief executive, for LGUs: Provided, however, That in an agency, department, or office where the procurement is decentralized, the Head of each decentralized unit shall be considered as the head of the procuring entity subject to the limitations and authority delegated by the head of the agency, department, or office. n) Infrastructure Projects. Include the construction, improvement, rehabilitation, demolition, repair, restoration or maintenance of roads and bridges, railways, airports, seaports, communication facilities, civil works components of information technology projects, irrigation, flood control and drainage, water supply, sanitation, sewerage and solid waste management systems, shore protection, energy/power and electrification facilities, national buildings, school buildings, hospital buildings, and other related construction projects of the government. For purposes of, and throughout this IRR-A, the term “infrastructure projects” shall have the same meaning as and shall be used interchangeably with “civil works.” o) Portal. Refers to a website that integrates a wide variety of contents for the purpose of attracting and aggregating multiple users together in a central virtual space. p) Procurement. Refers to the acquisition of Goods, Consulting Services, and the contracting for Infrastructure Projects by the Procuring Entity. In case of projects involving mixed procurements, the nature of the procurement, i.e., goods, infrastructure projects, or consulting services, shall be determined based on the primary purpose of the contract. Procurement shall also include the lease of goods and real estate. With respect to real property, its procurement shall be governed by the provisions of R.A. 8974 and other applicable laws, rules and regulations. q) Procuring Entity. Refers to any branch, constitutional commission or office, agency, department, bureau, office, or instrumentality of the Government, including GOCC, GFI, SUC and LGU procuring Goods, Consulting Services and Infrastructure Projects. Section 6. Standardization of Procurement Process and Forms. 6.1. To systematize the procurement process, avoid confusion and ensure transparency, the GPPB shall pursue the development and approval of generic procurement manuals and standard bidding documents and forms including forms to be used for major procurement like drugs and textbooks. 6.2. Once issued by the GPPB, the use of the generic procurement manuals, generic standard bidding documents and forms, and standard evaluation documents shall be mandatory upon all procuring entities. However, whenever necessary, to suit the particular needs of the procuring entity, modifications may be made particularly for major and more specialized procurement subject to the approval of the GPPB. 6.3. The GPPB shall formulate, approve and disseminate the generic procurement forms, not later than 30 days upon the approval of this IRR-A. This shall be followed with the forms for the more specialized procurements. RULE II – PROCUREMENT PLANNING Section 7. Procurement Planning and Budgeting Linkage 4 Implementing Rules and Regulations of Republic Act No. 9184 7.1. All procurement should be within the approved budget of the procuring entity and should be meticulously and judiciously planned by the procuring entity concerned. No government procurement shall be undertaken unless it is in accordance with an approved Annual Procurement Plan (APP). In the case of projects funded from lump-sum appropriations, the head of the procuring entity shall immediately update the APP to include such projects or contracts. For infrastructure contract packages projects, the ABC shall cover the individual cost components of civil works only. The other components of the project such as right-of-way (ROW), consulting services and Engineering Supervision and Administrative Overhead (ESAO), shall comply with the applicable provisions of law or agency guidelines. The ABC for the contract shall be at all times consistent with the appropriations for the project authorized in the GAA and/or continuing appropriations, in the case of NGAs; the corporate budget approved by the governing boards, pursuant to E.O. 518, in the case of GOCCs; and the budget approved by the Sanggunian in the case of LGUs. 7.2. Each procuring entity shall judiciously prepare, maintain and update an APP for all its procurement, that shall include, for each individual project, a Project Procurement Management Plan (PPMP). The APP shall bear the approval of the head of the procuring entity or second-ranking official designated by the head of the procuring entity to act on his behalf, and must be consistent with its duly approved yearly budget. Consistent with government fiscal discipline measures, only those considered crucial to the efficient discharge of governmental functions shall be included in the APP. For purposes of this IRR-A, a procurement shall be considered crucial to the efficient discharge of governmental functions if it is required for the day-to-day operations or is in pursuit of the principal mandate of the procuring entity concerned. In case of Infrastructure Projects, the Plan shall consider the appropriate timing/phasing of related project activities such as engineering design and acquisition of ROW to reduce/lower project costs. 7.3. The PPMP shall include: a) the type of contract to be employed; b) the extent/size of contract scopes/packages; c) the procurement methods to be adopted, and indicating if the procurement tasks are to be outsourced as provided in Section 53(e) of this IRR-A; d) the time schedule for each procurement activity; and e) the estimated budget for the general components of the contract e.g., civil works, goods and consultancy services. The APP shall include provisions for foreseeable emergencies based on historical records. In the case of textbooks for general use, the packaging of the contract shall be divided into two components: a) development of the manuscript; and b) printing of the textbooks. 7.4. The preparation and updating of the PPMPs shall be the responsibility of the respective Project Management Offices (PMOs) or end-user units of the procuring entities, while the consolidation of these PPMPs into an APP shall be lodged with the BAC Secretariat of that procuring entity. These units may avail of the services of technical experts to review the individual PPMPs. 7.5. Updating of the individual PPMPs and the consolidated APP for each procuring entity shall be undertaken every six (6) months or as often as may be required by the head of the procuring entity. Implementation of any project not included in the procuring entity’s APP shall not be allowed. RULE III – PROCUREMENT BY ELECTRONIC MEANS 5 Implementing Rules and Regulations of Republic Act No. 9184 Section 8. Procurement by Electronic Means and the Government Electronic Procurement System (G-EPS) 8.1. The G-EPS 8.1.1. To promote transparency and efficiency, information and communications technology shall be utilized in the conduct of procurement procedures. Accordingly, there shall be a single portal that shall serve as the primary source of information on all government procurement. The G-EPS shall serve as the primary and definitive source of information on government procurement. For this purpose, the Electronic Procurement System (EPS) established in accordance with Executive Order No. 322, series of 2000, and Executive Order No. 40, series of 2001 (E.O. 40), shall continue to be managed by the PS-DBM under the supervision of the GPPB, as the G-EPS in accordance with this IRR-A. 8.1.2. To take advantage of the significant built-in efficiencies of the G-EPS and the volume discounts inherent in bulk purchasing, all procuring entities shall utilize the G-EPS for the procurement of common-use supplies in accordance with the rules and procedures to be established by the GPPB. With regard to the procurement of non-common use items, infrastructure projects and consulting services, agencies may hire service providers through competitive bidding to undertake their electronic procurement: Provided, however, That these service providers meet the following minimum requirements: a) Comply with the provisions of the Act and this IRR-A, and Republic Act No. 8792 (R.A. 8792), otherwise known as the “Electronic Commerce Act;” b) Linked to the G-EPS, particularly with regard to the posting of all bid opportunities and awards; c) Allow parallel manual submission of bids to the procuring entity; d) Ensure that the BAC shall have complete control of the bidding process, and that the BAC’s sole authority to open bids is strictly observed; e) Its system must be virus-resilient and must provide sufficient security which is at least equivalent to that employed by the G-EPS, such as, but not limited to, firewall and encryption devices; f) Must provide for the use of electronic signatures and other current electronic authentication devices; g) Must have sufficient redundant back-up facilities; h) Must have provisions for linkage to the procuring entity’s Financial Management Information System (FMIS), Logistics Management Systems, and other internal information systems that may interact with the procurement process; and i) Electronic payment facilities, if used, shall comply with all laws, rules and regulations issued by the Government. 6 Implementing Rules and Regulations of Republic Act No. 9184 The GPPB shall determine and certify compliance with the above requirements. However, the GPPB may delegate this task to technically capable agencies/offices/units of the Government. 8.2. Features of the G-EPS The G-EPS includes the following features: 8.2.1. The Electronic Bulletin Board a) The G-EPS shall have a centralized electronic bulletin board for posting procurement opportunities, notices, awards and reasons for award. All procuring entities are required to post all procurement opportunities, results of bidding and related information in the G-EPS bulletin board. b) Procuring entities shall post the Invitation to Apply for Eligibility and to Bid in the electronic bulletin board in accordance with Section 21 of this IRR-A. 8.2.2. Registry of Manufacturers, Suppliers, Distributors, Contractors and Consultants a) The G-EPS shall have a centralized electronic database of all manufacturers, suppliers, distributors, contractors and consultants registered under the system. b) Registration shall entail the submission of the requirements specified by the PS-DBM. Submission of these requirements may be done on-line at the G-EPS website or physically at the G-EPS office. Registration shall be effective for one year and may be renewed, provided that the manufacturer, supplier, distributor, contractor or consultant concerned maintains its registration current and updated at least once a year, or more frequently when needed. c) Manufacturers, suppliers, distributors, contractors and consultants applying for registration must also indicate their account number with a bank duly licensed by the Bangko Sentral ng Pilipinas (BSP) to facilitate payment as well as the posting of bid and performance security, when applicable. d) The G-EPS shall deny registration to or exclude from the registry any party that is found to have willfully misrepresented any of the information provided in the application for registration or who is in the “blacklist” of the Government or any of its procuring entities from participating in any of its procurement opportunities. e) A manufacturer, supplier, distributor, contractor or consultant applying for registration shall be required to provide an e-mail address to which all communications from the BAC and the procuring entity shall be sent. The e-mail address provided shall be considered as such applicant’s information system for purposes of reckoning the date of sending or receipt of electronic messages or documents. f) Registered manufacturers, suppliers, distributors, contractors and consultants shall secure a digital certificate from the appropriate 7 Implementing Rules and Regulations of Republic Act No. 9184 certification authority to be able to participate in the procurement activities of the G-EPS. g) Registration with the G-EPS is not tantamount to a finding of eligibility, nor is it a guaranty that a manufacturer, supplier, distributor, contractor or consultant may participate in a public bidding without first being determined to be eligible for that particular public bidding. 8.2.3. The Electronic Catalogue a) The G-EPS shall have a centralized electronic catalogue of common and non-common use goods, supplies, materials and equipment. b) Procuring entities shall procure common-use goods, supplies, materials and equipment from the Electronic Catalogue in the G-EPS. To be able to use the G-EPS, procuring entities shall be required to register and designate the officials or personnel authorized to transact with and operate the G-EPS from such procuring entities’ terminals. c) Procuring entities without internet access may avail of the G-EPS Public Access Terminals which shall be installed at DBM designated locations in the provinces and in Metro Manila: Provided, however, That they shall comply with Section 8.3 of this IRR-A. d) The Electronic Catalogue may also feature non-common use items that may be procured directly and without public bidding by procuring entities from suppliers: Provided, however, That for an item to be carried in the Electronic Catalogue for this purpose, the supplier thereof must have been determined as the Lowest Calculated Responsive Bidder in a previous bidding conducted by PS-DBM or by a procuring entity for PS- DBM: Provided, further, That such item will be featured in the Electronic Catalogue for a maximum period of six (6) months unless another supplier offers a price lower by at least five percent (5%) and such supplier is determined by the procuring entity that conducted the previous bidding to meet the eligibility and bidding requirements for the item, in which case the item from the latter supplier will be that featured in the Electronic Catalogue for the remainder of the six (6)-month period. 8.2.4. Additional Features The G-EPS shall also feature a Virtual Store, Electronic Payment, Electronic Bid Submission, and such other features as may be developed in the future. 8.2.4.1. Virtual Store The G-EPS may have a feature that will enable the ordering of common- use and non-common use items online called a virtual store. The virtual store shall be open only to registered procuring entities and may not be accessed by suppliers. 8.2.4.2. Electronic Payment The G-EPS may support e-Payment functions that will allow the system to manage the generation of purchase orders and the payment of bids processed through the system. 8 Implementing Rules and Regulations of Republic Act No. 9184 The focus of this feature is to facilitate the electronic transfer of funds from PS-DBM to and from procuring entities and suppliers, and from procuring entities to suppliers for bids managed directly by the procuring entity. The system shall: a) Generate purchase orders from a bid notice, award notice or contract; b) Support approval process for purchase orders before any payment or fund transfer is processed; c) Have a process to submit request for payment upon delivery of goods and/or services and the completion of the approval process; and d) Have the ability to interface with the designated bank of the procuring entity and suppliers to support the electronic transfer of funds. 8.2.4.3. Electronic Bid Submission The G-EPS may support the implementation of e-Bid submission processes, which includes creation of electronic bid forms, creation of bid box, delivery of bid submissions, notification to supplier of receipt of bids, bid receiving and electronic bid evaluation. This facility shall cover all types of procurement for goods, infrastructure projects and consulting services. 8.3. Use of the G-EPS 8.3.1. All procuring entities are mandated to fully use the G-EPS in accordance with the policies, rules, regulations and procedures adopted by the GPPB and embodied in this IRR-A. In this connection, all procuring entities shall register with the G-EPS and shall undertake measures to ensure their access to an on-line network to facilitate the open, speedy and efficient on-line transmission, conveyance and use of electronic data messages or electronic documents. The PS-DBM shall assist procuring entities to ensure their on- line connectivity and help in training their personnel responsible for the operation of the G-EPS from their terminals. 8.3.2. The rules and regulations governing the manual method of procurement shall apply whenever the rules in this Section are silent. Further, the GPPB is authorized to approve changes in the procurement process to adapt to improvements in modern technology, provided that such modifications are consistent with the provisions of Section 3 of the Act and this IRR-A. 8.3.3. All central and regional offices of NGAs, GFIs, GOCCs, SUCs and city governments are mandated to use the G-EPS and all its available facilities by the end of 2003; all district offices of NGAs and provincial governments, by the end of 2004; all municipal offices of NGAs and all municipal governments, by the end of 2005; and barangays, by the end of 2006: Provided, however, That barangays may procure through the municipal governments. 8.4. Pre-bid Conferences and Notices under the G-EPS 8.4.1. Pre-bid conferences shall be conducted in accordance with Section 22 of this IRR-A: Provided, however, That the requirement for face-to-face bidding 9 Implementing Rules and Regulations of Republic Act No. 9184 conference may be replaced once videoconferencing or similar technology becomes the norm in business transactions in the country. Procuring entities with videoconferencing capabilities that have manufacturers, suppliers, distributors, contractors and/or consultants that also have videoconferencing capabilities may conduct their pre-bidding conferences electronically. 8.4.2. Requests for clarification from bidders may be sent electronically to the BAC. To be binding on bidders, clarifications and amendments to the Invitation to Apply for Eligibility and to Bid and to the bidding documents shall be in the form of Supplemental/Bid Bulletins which shall be posted in the G-EPS bulletin board. 8.4.3. The Supplemental/Bid Bulletins mentioned in the immediately preceding Subsection as well as all other notices to be made by the BAC to the bidders or prospective bidders shall be posted in the G-EPS bulletin board and sent electronically to the e-mail address indicated in the bidders’ registration. 8.5. Registration, Eligibility Requirements and Submission of Bids under the G-EPS 8.5.1. Manufacturers, suppliers, distributors, contractors and/or consultants shall register with the G-EPS. All procuring entities already maintaining an electronic registry upon the effectivity of this IRR-A shall integrate the same with that of the G-EPS. A manufacturer, supplier, distributor, contractor or consultant duly registered with the G-EPS may participate in a procurement undertaken by any procuring entity, provided that the said manufacturer, supplier, distributor, contractor or consultant maintains its registration current and updated in accordance with the provisions of this IRR-A, and its registration is proper and relevant to the particular type of procurement. 8.5.2. Letters of Intent (LOIs) and eligibility requirements, as the case may be, may be sent electronically to a procuring entity through the G-EPS: Provided, however, That the G-EPS shall allow manual submission of LOIs and eligibility requirements. The G-EPS shall generate and send an acknowledgement of any LOI or eligibility requirement received by it. 8.5.3. Registered bidders determined to be eligible may submit their bids at any time before the closing date specified in the bidding documents. The G-EPS shall bar all incoming bids after such date. 8.5.4. The G-EPS shall have a feature that allows the electronic submission of LOIs, eligibility requirements and bids. 8.5.5. Upon receipt of a bid, the G-EPS shall generate and send a message to the bidder acknowledging such receipt. 8.6. Opening of Bids under the G-EPS 8.6.1. The BAC shall have the sole authority to open the bids. 8.6.2. Only the financial proposals of bidders whose technical proposals meet the minimum technical requirements shall be opened or decrypted. 8.6.3. An update of all procurement contracts, regardless of whether procurement is done electronically or manually, shall be posted on the G-EPS bulletin board. The update shall include, but shall not be limited to, the status of procurement 10 Implementing Rules and Regulations of Republic Act No. 9184 contracts, including the names of contract awardees and the amount of the contract. 8.6.4. Without prejudice to criminal prosecution under the applicable provisions of the Act and this IRR-A, R.A. 8792, Republic Act No. 3019 (R.A. 3019), otherwise known as the “Anti-Graft and Corrupt Practices Act,” other applicable penal laws, public officials and employees who commit any of the following acts shall be deemed to have committed grave misconduct and shall be sanctioned and/or penalized in accordance with the applicable Civil Service rules and regulations: 1. Opening or decryption, by whatever means, of bids submitted through the G-EPS ahead of the appointed time for the opening or decryption of such bids; 2. Causing the unauthorized disclosure of any information or document submitted through the G-EPS; 3. Hacking into or cracking the G-EPS, or aiding another person to hack into or crack the same; or 4. Any other act that breaches or violates the Security, Integrity and Confidentiality of the G-EPS. 8.6.5. When any of the foregoing acts is done by the administrator(s) or employee(s) of a service provider hired by a procuring entity, or in collusion with or by a private party who is a participant in the bidding process, said administrator(s), employee(s) or private party shall be imposed the corresponding sanctions and/or penalties under this IRR-A. 8.7. Observers The G-EPS shall allow observers, duly authorized by the BAC, to monitor the procurement proceedings on-line: Provided, however, That such observers do not have any direct or indirect interest in the contract to be bid. Section 9. Security, Integrity and Confidentiality 9.1. The G-EPS shall incorporate the following features, which shall be periodically upgraded to keep abreast with developments in technology: 9.1.1. Security – The G-EPS shall be protected from unauthorized access or interference through the incorporation of security features such as, but not limited to, firewalls. Periodic tests shall be conducted to ensure that the system cannot be breached. 9.1.2. Integrity – The G-EPS shall ensure that no person, including the system administrators and chairperson and members of the BAC, shall be able to alter the contents of bids submitted through the system or read the same ahead of the stipulated time for the decryption or opening of bids. For this purpose, bids submitted through the G-EPS shall be sealed through electronic keys. The authenticity of messages and documents submitted through the G-EPS shall also be ensured by the use of electronic signatures. 9.1.3. Confidentiality – The G-EPS shall ensure the privacy of parties transacting with it. For this purpose, no electronic message or document sent through 11 Implementing Rules and Regulations of Republic Act No. 9184 the system shall be divulged to third parties unless such electronic message or document was sent after the sender was informed that the same will be made publicly available. The G-EPS shall protect the intellectual property rights over documents, including technical designs, submitted in response to Invitations to Apply for Eligibility and to Bid. 9.1.4. Audit Trail – The G-EPS shall include a feature that provides for an audit trail for on-line transactions, and allows the Commission on Audit (COA) to verify the security and integrity of the system at any time. 9.1.5. Performance Tracking – The performance of manufacturers, suppliers, distributors, contractors and consultants shall be tracked to monitor compliance with delivery schedules and other performance indicators. Similarly, the performance of procuring entities shall be tracked to monitor the settlement of their obligations to manufacturers, suppliers, distributors, contractors and consultants. RULE IV – COMPETITIVE BIDDING Section 10. Competitive Bidding All procurement shall be done through competitive bidding, except as provided in Rule XVI of this IRR-A. RULE V – BIDS AND AWARDS COMMITTEE Section 11. The BAC and its Composition 11.1. BAC Structure Each procuring entity shall establish in its head office a single BAC to undertake the functions specified in Section 12 of this IRR-A. However, to expedite the procurement process for practical intents and purposes, the head of the procuring entity may create separate BACs where the number and complexity of the items to be procured shall so warrant. The BACs may be organized either according to: (a) geographical location of PMO or end-user units of the procuring entity; or (b) nature of procurement. Similar committees for decentralized and lower level offices may also be formed when deemed necessary by the head of the procuring entity. The creation of the separate BACs shall be limited in order to facilitate professionalization and harmonization of procedures and standards. In line with the objective to integrate the operations of foreign assisted projects to the mainstream operation of agencies separate BACs created to manage foreign assisted projects are discouraged. 11.2. BAC Composition 11.2.1. National Government agencies, departments, bureaus, offices, or instrumentalities of the Government, including the judiciary and legislative branches, constitutional commissions, SUCs, GOCCs, and GFIs: Regular Members: 1. Chairman, who is at least a third ranking permanent official of the procuring entity; 12 Implementing Rules and Regulations of Republic Act No. 9184 2. An officer, who is at least a fifth ranking permanent official, with knowledge, experience and/or expertise in procurement who, to the extent possible, represents the legal or administrative area of the procuring entity, provided that in the case of bureaus, regional offices and sub-regional/district offices, BAC members shall be at least a third ranking permanent personnel; 3. An officer, who is at least a fifth ranking permanent official, with knowledge, experience and/or expertise in procurement who, to the extent possible, represents the finance area of the procuring entity, provided that in the case of bureaus, regional offices and sub-regional/district offices, BAC members shall be at least a third ranking permanent personnel; Provisional Members: 4. An officer who has technical expertise relevant to the procurement at hand, and, to the extent possible, has knowledge, experience and/or expertise in procurement; and 5. A representative from the end user unit who has knowledge of procurement laws and procedures. The members of the BAC, including the Chairman and the Vice-Chairman, shall be designated by the head of the procuring entity. Moreover, the Vice- Chairman shall be a regular member of the BAC. For purposes of this IRR- A, the term “permanent” shall refer to a plantilla position within the procuring entity concerned. 11.2.2. Local Government Units The BAC shall be composed of one (1) representative each from the regular offices under the Office of the Local Chief Executive such as, but not limited to the following: Office of the Administrator, Budget Office, Legal Office, Engineering Office, General Services Offices. The end user office shall always be represented in the BAC. The Chairman of the BAC shall be at least a third ranking permanent official of the procuring entity. The members of the BAC shall be personnel occupying plantilla positions of the procuring entity concerned. The local chief executive shall designate the members of the BAC. The members shall elect among themselves who shall act as the Chairman and Vice-Chairman. 11.2.3. The members to be designated by the head of the procuring entity to the BAC shall be at least five (5), but not more than seven (7). 11.2.4. Unless sooner removed for a cause, the members of the BAC shall have a fixed term of one (1) year reckoned from the date of appointment, renewable at the discretion of the head of the procuring entity. In case of resignation, retirement, separation, transfer, re-assignment, removal, death, the replacement shall serve only for the unexpired term: Provided, however, That in case of leave or suspension, the replacement shall serve only for the duration of the leave or suspension. For justifiable causes, a member shall be suspended or removed by the head of the procuring entity. In the interest of professionalization, the head of the procuring entity is encouraged to extend the terms of office of deserving members. 13 Implementing Rules and Regulations of Republic Act No. 9184 11.2.5. In no case shall the head of the procuring entity and/or the approving authority be the Chairman or a member of the BAC. Section 12. Functions of the BAC. 12.1. The BAC shall have the following functions: advertise and/or post the invitation to bid, conduct pre-procurement and pre-bid conferences, determine the eligibility of prospective bidders, receive bids, conduct the evaluation of bids, undertake post-qualification proceedings, resolve motions for reconsideration, recommend award of contracts to the head of the procuring entity or his duly authorized representative: Provided, however, That in the event the head of the procuring entity shall disapprove such recommendation, such disapproval shall be based only on valid, reasonable and justifiable grounds to be expressed in writing, copy furnished the BAC; recommend the imposition of sanctions in accordance with Rule XXIII, and perform such other related functions as may be necessary, including the creation of a Technical Working Group (TWG) from a pool of technical, financial and/or legal experts to assist in the procurement process, particularly in the eligibility screening, evaluation of bids and post- qualification. In proper cases, the BAC shall also recommend to the head of the procuring entity the use of Alternative Methods of Procurement as provided for in Rule XVI hereof. 12.2. The BAC shall be responsible for ensuring that the procuring entity abides by the standards set forth by the Act and this IRR-A, and it shall prepare a procurement monitoring report that shall be approved and submitted by the head of the procuring entity to the GPPB on a semestral basis. The procurement monitoring report shall cover all procurement activities specified in the APP, whether ongoing and completed, costing fifty million pesos (P50,000,000) and above for goods and infrastructure projects, and five million pesos (P5,000,000) and above for consulting services. The report shall cover major activities from the holding of the pre-procurement conference to the issuance of notice of award and the approval of the contract, including the standard and actual time for each major procurement activity. It shall be submitted in printed and electronic format within ten (10) working days after the end of each semester. 12.3. Quorum A majority of the total BAC composition as designated by the head of the procuring entity shall constitute a quorum for the transaction of business, provided that the presence of the Chairman or Vice-Chairman shall be required. 12.4. Meetings The Chairman or, in his absence, the Vice-Chairman, shall preside at all meetings of the BAC. The decision of at least a majority of those present at a meeting at which there is quorum shall be valid and binding as an act of the BAC: Provided, however, That the Chairman or, in his absence, the Vice- Chairman, shall vote only in case of a tie. Observers and representatives of BAC members shall have no right to vote during BAC meetings, nor shall the representatives of BAC members be authorized to sign in behalf of the members represented. Section 13. Observers 14 Implementing Rules and Regulations of Republic Act No. 9184 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: 1. At least one (1) shall come from a duly recognized private group in a sector or discipline relevant to the procurement at hand, for example: a) For infrastructure projects – (i) National Constructors Associations duly recognized by the Construction Industry Authority of the Philippines (CIAP), such as, but not limited to: The Philippine Constructors Association, Inc. (PCA); and The National Constructors Association of the Philippines, Inc. (NACAP); and (ii) The Philippine Institute of Civil Engineers (PICE). b) For goods - A specific relevant chamber-member of the Philippine Chamber of Commerce and Industry (PCCI). c) For consulting services - (i) A project-related professional organization accredited or duly recognized by the Professional Regulation Commission (PRC) or the Supreme Court (SC), such as, but not limited to: The Philippine Institute of Civil Engineers (PICE); and The Philippine Institute of Certified Public Accountants (PICPA); or (ii) The Confederation of Filipino Consulting Organizations (COFILCO). 2. The other observer shall come from a non-government organization (NGO). 13.2. The observers shall come from an organization duly registered with the Securities and Exchange Commission (SEC), and should meet the following criteria: 1. Knowledge, experience or expertise in procurement or in the subject matter of the contract to be bid; 2. Absence of direct or indirect interest in the contract to be bid out; and 3. Any other criteria that may be determined by the BAC. 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- qualification; 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. 15 Implementing Rules and Regulations of Republic Act No. 9184 13.4. Responsibilities of the Observers The observers shall have the following responsibilities: 1. Preparation of the report either jointly or separately indicating their observations made on the bidding activity conducted by the BAC for submission to the Head of the Procuring entity, copy furnished the BAC Chairman. The report shall assess the extent of the BAC’s compliance with the provisions of this IRR-A and areas of improvement in the BAC’s proceedings. For this purpose, the BAC shall furnish them a copy of the following documents upon their request: a. Minutes of related proceedings of BAC meetings; b. Abstract of Bids; c. Post-qualification summary report; d. APP and related PPMP; and e. Copies of “opened” proposals. Observers may also give a copy of their report to the Office of the Ombudsman/Resident Ombudsman if the BAC is found to have failed in following the prescribed bidding procedures or for any justifiable and reasonable ground where the award of the contract will not redound to the benefit of the Government as defined in this IRR-A. 2. To sign the abstract of bids if, in their independent observation, the bidding activity conducted by the BAC followed the correct procedure as indicated in this IRR-A; and 3. To sign the post-qualification summary report if, in their independent observation, the BAC followed the procedure as indicated in this IRR-A and that the observer is amenable to the results of the post-qualification. Section 14. BAC Secretariat 14.1. The head of the procuring entity shall create a Secretariat which will serve as the main support unit of the BAC. He may also designate an existing organic office within the said procuring entity to serve as Secretariat. However, to strengthen and promote the professionalization of the organizations’ procuring unit, he may reorganize this unit by designating it as BAC Secretariat and redeploying appropriate existing personnel to it to perform this function, as well as procurement related task. The Secretariat shall have the following functions and responsibilities: 1. Provide administrative support to the BAC; 2. Organize and make all necessary arrangements for the BAC meetings; 3. Attend BAC meetings as Secretary; 4. Prepare Minutes of the BAC meetings; 16 Implementing Rules and Regulations of Republic Act No. 9184 5. Take custody of procurement documents and be responsible for the sale and distribution of bidding documents to interested bidders; 6. Assist in managing the procurement processes; 7. Monitor procurement activities and milestones for proper reporting to relevant agencies when required; 8. Consolidate PPMPs from various units of the procuring entity to make them available for review as indicated in Section 7 of this IRR-A; 9. Make arrangements for the pre-procurement and pre-bid conferences and bid openings; and 10. Be the central channel of communications for the BAC with end users, PMOs, other units of the line agency, other government agencies, providers of goods, civil works and consulting services, and the general public. 14.2. The head of the Secretariat in central offices shall be at least a fifth ranking permanent employee or, if not available, a permanent official of the next lower rank; or shall be at least a third ranking permanent employee in bureaus, regional offices and sub-regional/ district offices, or if not available, a permanent employee of the next lower rank. 14.3. To expedite the procurement process, the head of the procuring entity shall ensure that the members of the BAC and TWG shall give utmost priority to BAC assignments over all other duties and responsibilities, until the requirements for the said assignments at hand are completed. Section 15. Honoraria of BAC and TWG Members The procuring entity may grant payment of honoraria to the BAC members in an amount not to exceed twenty five percent (25%) of their respective basic monthly salary subject to availability of funds. For this purpose, the DBM shall promulgate the necessary guidelines. The procuring entity may also grant payment of honoraria to the TWG members, subject to the relevant rules of the DBM. Section 16. Professionalization of BAC, TWG Members and Procurement Units 16.1. The GPPB shall establish a sustained training program to develop the capability of the BACs, BAC Secretariats, TWGs, and the Procurement Units of procuring entities, and professionalize the same. 16.2. Procurement Proficiency In addition to integrity, heads of procuring entities shall consider procurement proficiency as a factor in designating officials to the BAC as well as the head of the Secretariat and Procurement Unit. In turn, the BAC shall consider the same in their selection of the TWG members. 16.3. In line with the standardization of procurement procedures and the thrust towards strengthening the procurement function to increase operational efficiency and effectiveness, heads of procuring entities shall aim to consolidate, or unify all procurement activities of the organization, whether locally funded or 17 Implementing Rules and Regulations of Republic Act No. 9184 foreign assisted, and whether pertaining to goods, infrastructure projects or consulting services. RULE VI - PREPARATION OF BIDDING DOCUMENTS Section 17. Form and Contents of Bidding Documents 17.1. The Bidding Documents shall be prepared by the procuring entity following the standard forms and manuals prescribed by the GPPB. The bidding documents shall include the following: a) Approved Budget for the Contract; b) Eligibility Requirements; c) Instructions to Bidders, including criteria for eligibility, bid evaluation and post-qualification, as well as the date, time and place of the pre-bid Conference (where applicable), submission of bids and opening of bids; d) Terms of Reference (TOR), for consulting services; e) Scope of work, where applicable; f) Plans and Technical Specifications; g) Form of Bid, Price Form, and List of Goods or Bill of Quantities; h) Delivery Time or Completion Schedule; i) Form, Amount and Validity Period of Bid Security; j) Form and Amount of Performance Security and Warranty; and k) Form of Contract, and General and Special Conditions of Contract. 17.2. The bidding documents shall clearly and adequately define, among others: (a) the objectives, scope and expected outputs and/or results of the proposed contract; (b) the expected contract duration, the estimated quantity in the case of procurement of goods, delivery schedule and/or time frame; (c) the obligations, duties and/or functions of the winning bidder; and (d) the minimum eligibility requirements of bidders, such as track record to be determined by the head of the procuring entity. 17.3. The procuring entity may require additional document requirements or specifications such as summary of data, facilities and/or services where applicable and necessary to complete the information required for the bidders to prepare and submit their respective bids. The bidding documents, as may be amended, shall subsequently form an integral part of the contract. 17.4. The specifications and other terms in the bidding documents shall reflect minimum requirements or specifications required to meet the needs of the procuring entity in clear and unambiguous terms. The bidder may submit an offer which provides for superior specifications and/or better terms and conditions to the Government at no extra cost. However, these shall not be given any bonus, credit or premium in the bid evaluation. 18 Implementing Rules and Regulations of Republic Act No. 9184 17.5. 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 to be bid at the time the Invitation to Apply for Eligibility and to Bid is first advertised. Bidders may be asked to pay for the bidding documents to recover the cost of its preparation and development. The BAC shall issue the bidding documents upon payment of the corresponding cost thereof to the collecting/disbursing officer of the procuring entity concerned. 17.6. Detailed Engineering for the Procurement of Infrastructure Projects No bidding and award of contract for infrastructure projects shall be made unless the detailed engineering investigations, surveys and designs except for design and build schemes wherein bidders shall be allowed to submit its detailed engineering designs as part of its bid, including the acquisition of the ROW, for the project have been sufficiently carried out and duly approved in accordance with the standards and specifications prescribed by the head of the procuring entity concerned or his duly authorized representative, and in accordance with the provisions of Annex “A” of this IRR-A. 17.7. Responsibility of Prospective or Eligible Bidder 17.7.1. A prospective or eligible bidder shall be responsible for: a) Having taken steps to carefully examine all of the bidding documents; b) Having acknowledged all conditions, local or otherwise, affecting the implementation of the contract; c) Having made an estimate of the facilities available and needed for the contract to be bid, if any; and d) Having complied with his responsibility as provided for under Section 22.5.1. Failure to observe any of the above responsibilities shall be at the risk of the prospective bidder or eligible bidder concerned. For this purpose, a bidder shall execute a sworn statement attesting to the foregoing responsibilities, to be submitted by the bidder as an annex to its technical proposal. 17.7.2. It shall be the sole responsibility of the prospective bidder to determine and to satisfy itself by such means as it considers necessary or desirable as to all matters pertaining to the contract to be bid, including: (a) the location and the nature of the contract, project or work; (b) climatic conditions; (c) transportation facilities; (c) for the procurement of infrastructure projects, nature and condition of the terrain, geological conditions at the site communication facilities, requirements, location and availability of construction aggregates and other materials, labor, water, electric power and access roads; and (d) other factors that may affect the cost, duration and execution or implementation of the contract, project or work. In the case of procurement of infrastructure projects, the bidder, by the act of submitting its bid, shall be deemed to have inspected the site and determined the general characteristics of the contract works and the 19 Implementing Rules and Regulations of Republic Act No. 9184 conditions indicated above. The BAC shall require an affidavit of such site inspection from the eligible bidder. 17.7.3. The procuring entity shall not assume any responsibility regarding erroneous interpretations or conclusions by the prospective or eligible bidder out of the data furnished by the procuring entity. 17.7.4. Before submitting their bids, the bidders are deemed to have become familiar with all existing laws, decrees, ordinances, acts and regulations of the Philippines which may affect the contract in any way. However, in cases where the cost of the awarded contract is affected by any applicable new laws, ordinances, regulations or other acts of Government promulgated after the date of bidding, a contract price adjustment shall be made or appropriate relief shall be applied on a no loss-no gain basis, provided such is not covered by the contract provisions on price adjustment. Section 18. Reference to Brand Names Specifications for the procurement of goods shall be based on relevant characteristics and/or performance requirements. Reference to brand names shall not be allowed. Section 19. Access to Information In all stages of the preparation of the bidding documents, the procuring entity shall ensure equal access to information. Prior to their official release to prospective bidders, no aspect of the bidding documents shall be divulged or released to any prospective bidder or person having direct or indirect interest in the project to be procured, or to any party, except those officially authorized in the handling of the documents. RULE VII – INVITATION TO BID Section 20. Pre-procurement Conference 20.1. Prior to the advertisement or the issuance of the Invitation to Apply for Eligibility and to Bid for each procurement undertaken through a public bidding, the BAC, through its Secretariat, shall call for a pre-procurement conference. The pre- procurement conference shall be attended by the BAC, the Secretariat, the unit or officials, including consultants hired by the procuring entity who prepared the technical plans, technical specifications, TORs, bidding documents and the draft advertisement, as the case may be, for each procurement, as well as those who separately reviewed these documents prior to final approval, if any. During this conference, the participants, led by the BAC, shall: 1. Ensure that the procurement is in accordance with the project and annual procurement plans; 2. Determine the readiness of the procurement at hand, including, among other aspects, confirmation of the availability of ROW, the ownership of affected properties, availability of appropriations and programmed budget for contract, and adherence of bidding documents, technical plans, specifications, scope of work, and/or TOR, and other related matters, to relevant general procurement guidelines; 20 Implementing Rules and Regulations of Republic Act No. 9184 3. Review, modify and agree on the criteria for eligibility screening to ensure their fairness, reasonableness and that they are of the “pass/fail” type and are written in such manner; 4. Review, modify and agree on the criteria for the evaluation of bids/proposals to ensure their fairness, reasonableness and applicability to the procurement at hand; 5. Clarify that the specifications and other terms in the bidding documents are minimum requirements and that the bidder may submit an offer which provides for superior specifications and/or better terms and conditions to the Government at no extra cost, without any bonus, credit or premium in the bid evaluation; and 6. Reiterate and emphasize the importance of confidentiality during the bid evaluation process, and the applicable sanctions and penalties, as well as agree on measures to ensure compliance with the foregoing. 20.2. The holding of a pre-procurement conference may not be required for small procurements, i.e., procurement of goods costing two million pesos (P2,000,000.00) and below, procurement of infrastructure projects costing five million pesos (P5,000,000.00) and below, and procurement of consulting services costing one million pesos (P1,000,000.00) and below. Section 21. Advertising and Contents of the Invitation to Bid 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: 1. For the procurement of: a) Goods, the name of the contract to be bid and a brief description of the goods to be procured; b) Infrastructure projects, the name and location of the contract to be bid, the project background and other relevant information regarding the proposed contract works, including a brief description of the type, size, major items, and other important or relevant features of the works; and c) Consulting services, the name of the contract to be bid, a general description of the project and other important or relevant information; 2. A general statement on the criteria to be used by the procuring entity for the eligibility check, the short listing of prospective bidders, in the case of the procurement of consulting services, the examination and evaluation of bids, and post-qualification; 3. The date, time and place of the deadline for the submission and receipt of the eligibility requirements, the pre-bid conference if any, the submission and receipt of bids, and the opening of bids; 4. The approved budget for the contract to be bid; 5. The source of funding; 21 Implementing Rules and Regulations of Republic Act No. 9184 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; 7. The contract duration or delivery schedule; 8. The name, address, telephone number, facsimile number, e-mail and website addresses of the concerned procuring entity, as well as its designated contact person; and 9. Such other necessary information deemed relevant by the procuring entity. 21.2. Advertising and Posting of the Invitation to Apply for Eligibility and to Bid 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 twice within a maximum period of fourteen (14) calendar days, with a minimum period of six (6) calendar days in between publications, in a newspaper of general nationwide circulation which has been regularly published for at least two (2) years before the date of issue of the advertisement; b) Posted continuously in the website of the procuring entity concerned, if available, the website of the procuring entity’s service provider, if any, as provided in Section 8 of this IRR-A, and the G-EPS during the maximum period of fourteen (14) calendar days stated above; and c) Posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned. 21.2.2. The following periods from the last day of the period for advertising and/or posting of the Invitation to Apply for Eligibility and to Bid up to the opening of bids shall be observed: (i) For goods, a maximum period of thirty (30) calendar days from the last day of the period of advertising and/or posting of the Invitation to Apply for Eligibility and to Bid up to opening of bids. (ii) For infrastructure projects, the bidding documents shall be issued within thirty (30) calendar days from the last day of the period of advertising and/or posting of the Invitation to Apply for Eligibility and to Bid, and the opening of bids shall be conducted within the following periods from the last day of the issuance of the bidding documents: Estimated Contract Cost Period (in pesos) Up to twenty five (25) million 15 to 30 calendar days Above twenty five (25) million up to fifty 15 to 45 calendar days (50) million Above fifty (50) million up to two hundred 30 to 60 calendar days (200) million Above two hundred (200) million 60 to 90 calendar days 22 Implementing Rules and Regulations of Republic Act No. 9184 In case of simple or repetitive or standardized works where time is of the essence, the head of the procuring entity may reduce the above term of issuance to not less than fifty percent (50%) of the periods indicated above: Provided, however, That the periods for conducting eligibility check, pre-bid conference and the issuance of bidding documents shall be followed. (iii) For consulting services, a maximum period of ninety (90) calendar days from the last day of the period of advertising and/or posting of the Invitation to Apply for Eligibility and to Bid up to the opening of bids. With respect to priority programs and infrastructure projects funded out of the annual GAA which are intended for implementation within the province, the procuring entity may, in addition to the requirements specified in this Section, publish the Invitation to Apply for Eligibility and to Bid in a local newspaper of general circulation within the respective periods stated in this Section. 21.2.3. For contracts to be bid with an ABC costing two million pesos (P2,000,000.00) and below for the procurement of goods, and five million pesos (P5,000,000.00) and below for the procurement of infrastructure projects, the Invitation to Apply for Eligibility and to Bid shall be posted at least in the website of the procuring entity concerned, if available, the website of the procuring entity’s service provider, if any, as provided in Section 8 of this IRR-A, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above. For projects/contracts for consulting services with an ABC costing one million pesos (P1,000,000.00) and below and/or those whose duration is four (4) months or less, the Invitation to Apply for Eligibility and to Bid shall be posted at least in the website of the procuring entity concerned, if available, the website of the procuring entity’s service provider, if any, as provided in Section 8 of this IRR-A, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above. 21.2.4. For alternative methods of procurement as provided for in Rule XVI of this IRR-A, advertisement in a newspaper as required in this Section may be dispensed with: Provided, however, That posting shall be made in the website of the procuring entity concerned, if available, the G-EPS, and posted at any conspicuous place reserved for this purpose in the premises of the procuring entity concerned, as certified by the head of the BAC Secretariat of the procuring entity concerned, during the same period as above. 21.3. LOI for the Procurement of Infrastructure Projects and Consulting Services 21.3.1. For the procurement of infrastructure projects and consulting services, the interested party shall submit a written LOI together with its application for eligibility, which must be received by the BAC not later than seven (7) calendar days after the last day of the period for advertising and/or posting of the Invitation to Apply for Eligibility and to Bid provided in Section 21.2 of this IRR-A. 21.3.2. A contractor or consultant that is duly registered and that maintains its registration current and updated in the G-EPS electronic registry, or a 23 Implementing Rules and Regulations of Republic Act No. 9184 procuring entity’s electronic registry already existing upon the effectivity of the Act and that allows electronic submission and/or recording/entry of eligibility requirements simultaneously with registration, may simply submit its LOI for the contract to be bid: Provided, however, That its registration is proper and relevant for the particular contract to be bid: Provided, further, That the eligibility of the contractor or consultant to participate in the bidding shall still be determined by the BAC through the conduct of an eligibility check, electronically or otherwise. Section 22. Pre-bid Conference 22.1. For contracts to be bid with an approved budget of one million pesos (P1,000,000.00) or more, the BAC shall convene at least one (1) pre-bid conference to clarify and/or explain any of the requirements, terms, conditions and specifications stipulated in the bidding documents. For contracts to be bid costing less than one million pesos (P1,000,000.00), pre-bid conferences may be conducted at the discretion of the BAC. Subject to the approval of the BAC, a pre-bid conference may also be conducted upon written request of any prospective bidder. 22.2. The pre-bid conference shall be held at least twelve (12) calendar days before the deadline for the submission and receipt of bids. However, attendance of the bidders shall not be mandatory. 22.3. 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. 22.4. Any statement made at the pre-bid conference shall not modify the terms of the bidding documents, unless such statement is specifically identified in writing as an amendment thereto and issued as a Supplemental/Bid Bulletin. 22.5. Supplemental/Bid Bulletins 22.5.1. Requests for clarification(s) on any part of the bidding documents or for an interpretation must be in writing and submitted to the BAC of the procuring entity concerned at least ten (10) calendar days before the deadline set for the submission and receipt of bids. The BAC shall respond to the said request by issuing a Supplemental/Bid Bulletin, duly signed by the BAC chairman, to be made available to all those who have properly secured the bidding documents from the procuring entity, at least seven (7) calendar days before the deadline for the submission and receipt of bids. It shall be the responsibility of all those who have properly secured the bidding documents to inquire and secure Supplemental/Bid Bulletins that may be issued by the BAC. 22.5.2. Supplemental/Bid Bulletins may be issued upon the procuring entity’s initiative for purposes of clarifying or modifying any provision of the bidding documents not later than seven (7) calendar days before the deadline for the submission and receipt of bids. Any modification to the bidding documents shall be identified as an amendment. Bidders who have submitted bids before the issuance of the Supplemental/Bid Bulletin must be informed and allowed to modify or withdraw their bids in accordance with Section 26.1 of this IRR-A. 24 Implementing Rules and Regulations of Republic Act No. 9184 22.5.3. Any Supplemental/Bid Bulletin issued by the BAC shall also be posted on the website of the procuring entity concerned, if available, and on the G-EPS. RULE VIII – RECEIPT AND OPENING OF BIDS Section 23. Eligibility Requirements for the Procurement of Goods and Infrastructure Projects 23.1. The eligibility requirements or statements shall be submitted to the BAC in the form prescribed in Section 23.6 of this IRR-A and in the Instructions to Bidders, in a sealed eligibility envelope duly marked as such: Provided, however, That the minimum requirements provided for in this IRR-A shall be complied with. The eligibility envelopes of prospective bidders for the procurement of goods shall be submitted, together with the technical and financial envelopes, on or before the deadline specified in the Instructions to Bidders, and shall be opened on the date of the bid opening to determine eligibility of each of the prospective bidders. The eligibility envelopes of prospective bidders for the procurement of infrastructure projects shall be submitted on or before the deadline specified in the Invitation to Apply for Eligibility and to Bid, and shall be opened before the dates of the pre-bid conference and bid opening to determine eligibility of prospective bidders, who shall then be allowed to acquire or purchase the relevant bidding documents from the procuring entity. 23.2. In relation to Section 25 on submission and receipt of bids, and subject to the provisions of Section 21.3 of this IRR-A, the BAC shall determine if each prospective bidder is eligible to participate in the bidding by examining the completeness of each prospective bidder’s eligibility requirements or statements against a checklist of requirements, using a non-discretionary “pass/fail” criteria, as stated in the Invitation to Apply for Eligibility and to Bid, and shall be determined as either “eligible” or “ineligible.” If a prospective bidder submits the specific eligibility document required, it shall be rated “passed” for that particular requirement. In this regard, failure to submit a requirement, or an incomplete or patently insufficient submission, shall be considered “failed” for the particular eligibility requirement concerned. If a prospective bidder is rated “passed” for all the eligibility requirements, it shall be considered eligible to participate in the bidding, and the BAC shall mark the set of eligibility documents of the prospective bidder concerned as “eligible.” If a prospective bidder is rated “failed” in any of the eligibility requirements, it shall be considered ineligible to participate in the bidding, and the BAC shall mark the set of eligibility documents of the prospective bidder concerned as “ineligible.” In either case, the markings shall be countersigned by the BAC chairperson or duly designated authority. 23.3. The BAC shall inform an eligible prospective bidder that it has been found eligible to participate in the bidding. On the other hand, the BAC shall inform an ineligible prospective bidder that it has been found ineligible to participate in the bidding, and the grounds for its ineligibility. Those found ineligible have seven (7) calendar days upon written notice or, if present at the time of opening of eligibility requirements, upon verbal notification, within which to file a request for a reconsideration with the BAC: Provided, however, That the BAC shall decide on the request for reconsideration within seven (7) calendar days from receipt thereof. The BAC may request a prospective bidder to clarify its eligibility documents, if it is deemed necessary. The BAC shall not be allowed to receive, hold and/or open the bids of ineligible prospective bidders: Provided, however, That if an ineligible prospective bidder signifies his intent to file a motion for 25 Implementing Rules and Regulations of Republic Act No. 9184 reconsideration, the BAC shall hold the eligibility documents of the said ineligible prospective bidder until such time that the motion for reconsideration has been resolved. Furthermore, for procurement of goods, the BAC shall hold the bid of the said ineligible prospective bidder unopened and duly sealed until such time that the motion for reconsideration has been resolved. 23.4. Notwithstanding the eligibility of a prospective bidder, the procuring entity concerned reserves the right to review its qualifications at any stage of the procurement process if it has reasonable grounds to believe that a misrepresentation has been made by the said prospective bidder, or that there has been a change in the prospective bidder’s capability to undertake the project from the time it submitted its eligibility requirements. Should such review uncover any misrepresentation made in the eligibility requirements, statements or documents, or any changes in the situation of the prospective bidder which will affect the capability of the bidder to undertake the project so that it fails the preset eligibility criteria, the procuring entity shall consider the said prospective bidder as ineligible and shall disqualify it from submitting a bid or from obtaining an award or contract, in accordance with Rules XXI, XXII, and XXIII of this IRR- A. 23.5. To further enhance the capability, experience and professionalism of the Armed Forces of the Philippines (AFP) Corps of Engineers, and in the interest of economy and efficiency, the AFP, subject to the approval of the Secretary of National Defense, may undertake, by administration, infrastructure projects funded out of the Department of National Defense (DND) appropriations and the proceeds of the disposition of military camps/stations under Republic Act No. 7227 which are intended for the replication of AFP facilities affected by such disposition; Provided, however, That: 23.5.1. The civilian labor component for the project shall not be more than sixty percent (60%), and, as far as practicable, shall be sourced from the project locality; and 23.5.2. The procurement of supply requirements for the project shall be subject to the provisions of the Act and this IRR-A. 23.6. Eligibility Check for the Procurement of Goods and Infrastructure Projects The determination of eligibility shall be based on the submission of the following documents to the BAC, utilizing the forms prepared by the BAC and using the criteria stated in Section 23.11 of this IRR-A: 1. Class “A” Documents - Legal Documents a) Department of Trade and Industry (DTI) business name registration or SEC registration certificate, whichever may be appropriate under existing laws of the Philippines; b) Valid and current Mayor’s permit/municipal license; c) Taxpayer’s Identification Number; d) Statement of the prospective bidder that it is not “blacklisted” or barred from bidding by the Government or any of its agencies, offices, 26 Implementing Rules and Regulations of Republic Act No. 9184 corporations or LGUs, including non-inclusion in the Consolidated Blacklisting Report issued by the GPPB, once released in accordance with the guidelines to be issued by the GPPB as provided in Section 69.4 of this IRR-A; e) Other appropriate licenses as may be required by the procuring entity concerned; Technical Documents f) Statement of the prospective bidder of all its ongoing and completed government and private contracts within the relevant period, where applicable, including contracts awarded but not yet started, if any. The statement shall state for each contract whether said contract is: f.1. Ongoing, Completed or Awarded but not yet started: within the relevant period, where applicable. The statement shall include, for each contract, the following: f.1.1. For the procurement of goods: (i) the name of the contract; (ii) date of the contract; (iii) kinds of goods sold; (iv) amount of contract and value of outstanding contracts; (v) date of delivery; (vi) end user’s acceptance, if completed; and (vii) specification whether prospective bidder is a manufacturer, supplier or distributor; or f.1.2. For the procurement of infrastructure projects: (i) the name of the contract; (ii) date of award of the contract; (iii) contract duration; (iv) owner’s name and address; (v) nature of work; (vi) contractor’s role (whether sole contractor, sub- contractor, or partner in a joint venture); (vii) total contract value at award; (viii) date of completion or estimated completion time; (ix) total contract value at completion, if applicable; (x) percentages of planned and actual accomplishments, if applicable; (xi) value of outstanding works, if applicable; (xii) the statement shall be supported by the notices of award and/or notices to proceed issued by the owners; and (xiii) the statement shall be supported by the Contractor’s Performance Evaluation System (CPES) rating sheets, and/or certificates of completion and owner’s acceptance, if applicable. f.2. Similar or not similar in nature and complexity to the contract to be bid. 27 Implementing Rules and Regulations of Republic Act No. 9184 g) In the case of procurement of infrastructure projects, a valid Philippine Contractors Accreditation Board (PCAB) license and registration for the type and cost of the contract to be bid; h) In the case of procurement of infrastructure projects, the prospective bidder’s statement of: h.1. Availability of the prospective bidder’s key personnel, such as project managers, project engineers, materials engineers and foremen, that may be used for construction contracts; and h.2. Availability of equipment that he owns, has under lease, and/or has under purchase agreements, that may be used for construction contracts, provided that ownership of equipment is not a requisite for eligibility; Financial Documents i) The prospective bidder’s audited financial statements, stamped “received” by the BIR or its duly accredited and authorized institutions, for the immediately preceding calendar year, showing, among others, the prospective bidder’s total and current assets and liabilities; and j) The prospective bidder’s computation for its Net Financial Contracting Capacity (NFCC) which shall be in accordance with Section 23.11 of this IRR-A; or a commitment from a licensed bank to extend to it a credit line if awarded the contract to be bid, or a cash deposit certificate, in an amount not lower than that set by the procuring entity in the Bidding Documents, which shall be at least equal to ten percent (10%) of the approved budget for the contract to be bid. To facilitate eligibility checking, the BAC of a procuring entity may maintain a file of the foregoing Class “A” documents submitted by manufacturers, suppliers, distributors and contractors for non-common goods and/or for infrastructure projects, as may be appl