Amending Section 23.1 (B) of the Revised Implementing Rules and Regulations of RA No. 9184 (Government Procurement Reform Act)

December 5, 2014

GPPB RESOLUTION NO. 029-14

AMENDING SECTION 23.1 (B) OF THE REVISED IMPLEMENTING RULES AND REGULATIONS (IRR) OF REPUBLIC ACT (RA) NO. 9184 AND CLAUSES 12.1 (A) (VIII) AND 30.3 OF THE INSTRUCTIONS TO BIDDERS (ITB) OF THE PHILIPPINE BIDDING DOCUMENTS (PBDS) FOR INFRASTRUCTURE PROJECTS

WHEREAS, Republic Act (RA) No. 9184, otherwise known as the "Government Procurement Reform Act" and its revised Implementing Rules and Regulations (IRR) took effect on 26 January 2003 and 2 September 2009, respectively; HTcADC

WHEREAS, Section 63 of RA 9184 mandates the Government Procurement Policy Board (GPPB) to protect national interest in all matters affecting public procurement;

WHEREAS, Section 23.5.2.3 of the IRR of RA 9184 allows a bidder to participate in public bidding for infrastructure projects if he has been issued a license by the Philippine Contractors Accreditation Board (PCAB) to engage or act as a contractor in accordance with RA 4566; 1

WHEREAS, Section 23.1 (b) of the IRR of RA 9184 and Clause 12.1 (a) (viii) 2 of the Instructions to Bidders (ITB) under the Philippine Bidding Documents (PBDs) for Infrastructure Projects requires the submission of a valid joint venture agreement (JVA) as Class "B" Eligibility Document, in case the joint venture is already in existence. In the absence of a JVA, duly notarized statements from all the potential joint venture partners may be submitted; stating that they will enter into and abide by the provisions of the JVA in the instance that the bid is successful;

WHEREAS, Clause 30.3 (a) (i) of the ITB under the PBDs for Infrastructure Projects requires that if the bidder has submitted a notarized statement, a valid JVA shall be presented as a condition for the award of contract, within ten (10) calendar days from the issuance of the Notice of Award; CAIHTE

WHEREAS, Section 38 of RA 4566 provides that it is unlawful for any two or more licensees, each of whom has been issued a license to engage separately in the capacity of a contractor, to jointly submit a bid or otherwise act in the capacity of a contractor without first having secured an additional license for acting in the capacity of such a joint venture as provided for an individual, partnership or corporation;

WHEREAS, Joint Ventures (JVs) are required to secure a Special PCAB license in accordance with Section 3.5 of IRR of RA 4566; aScITE

WHEREAS, Section 4.6 of the IRR of RA 4566 requires the submission of a JVA for the application of a Special PCAB License;

WHEREAS, on 24 February 2014, GPPB-TSO received a letter from PCAB informing the former that procuring entities allow JVs to bid without the required Special PCAB License, which is violative of Section 38 of RA 4566 and its IRR;

WHEREAS, upon initial presentation to the Board during its 6th GPPB and 5th Inter-Agency Technical Working Group (IATWG) Joint meeting on 31 October 2014, GPPB-TSO was directed to meet with PCAB to reconcile the seeming conflict between the provisions of the IRR of RA 9184 and RA 4566 relative to the submission of a sworn statement, in lieu of a JVA; DETACa

WHEREAS, during the meeting held on 20 November 2014, PCAB maintains the strict interpretation of Section 38 of RA 4566; PCAB cannot accept a notarized statement, in lieu of a JVA, as it cannot evaluate the qualifications of potential JVs. According to PCAB, they process and issue a Special PCAB license within five (5) days from the date of application;

WHEREAS, during the 7th GPPB and 6th IAWTG Joint Meeting on 5 December 2014, the GPPB-TSO presented the matter for the Board's consideration and recommended adoption of any of the following:

a. MAINTAIN the present rule under Section 23.1 (b) of the IRR of RA 9184, which allows, in the absence of a JVA, duly notarized statements from all potential JV partners stating that they will enter and abide by the conditions of the JVA in the instance that the bid is successful; or

b. AMEND Section 23.1 (b) of the IRR of RA 9184 and Clauses 12.1 (a) (viii) and 30.3 (a) (i) of the Instructions to Bidders (ITB), Philippine Bidding Documents (PBDs) for Infrastructure Projects, by requiring only JVAs as Class "B" document.

WHEREAS, the Board thoroughly discussed the matter, and, after careful deliberation, favorably approved GPPB-TSO's second recommendation.

NOW, THEREFORE, for and in consideration of the foregoing, WE, the Members of the GOVERNMENT PROCUREMENT POLICY BOARD, by virtue of the powers vested on US by law, hereby RESOLVE to confirm, adopt and approve, as WE hereby confirm, adopt and approve to following: HEITAD

1. REQUIRE the submission of Joint Venture Agreement as Class B Eligibility Document in the Procurement of Infrastructure Projects;

2. AMEND Section 23.1 (b) of the IRR of RA 9184, as shown in Annex "A" hereof; aDSIHc

3. AMEND Clauses 12.1 (a) (viii) and 30.3 (a) (i) of the Instructions to Bidders (ITB), Philippine Bidding Documents (PBDs) for Infrastructure Projects, as shown in Annex "B" hereof.

This Resolution shall take effect after fifteen (15) days following the publication in the Official Gazette or a newspaper of general nationwide circulation and upon filing with the University of the Philippines Law Center of three (3) certified true copies of this Resolution.

APPROVED this 5th day of December 2014 at Pasig City, Philippines.

(SGD.) _______________________________________

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(SGD.) _______________________________________

Attested by:

(SGD.) DENNIS S. SANTIAGOBoard Secretary, GPPB

ANNEX A

Revised Implementing Rules and Regulations (IRR) of Republic Act (RA) No. 9184

 

Original			Amended
Section 23.1 (b)	Section 23.1 (b)
Class "B" Document	Class "B" Document
Valid joint venture agreement (JVA), in case	For goods, valid joint venture agreement
the joint venture is already in existence. In	(JVA), in case the joint venture is already
the absence of a JVA, duly notarized	in existence. In the absence of a JVA,
statements from all the potential joint venture	duly notarized statements from all the
partners stating that they will enter into and	potential joint venture partners stating
abide by the provisions of the JVA in the	that they will enter into and abide by the
instance that the bid is successful shall be	provisions of the JVA in the instance that
included in the bid. Failure to enter into a	the bid is successful shall be included in
joint venture in the event of a contract award	the bid. Failure to enter into a joint
shall be ground for the forfeiture of the bid	venture in the event of a contract award
security. Each partner of the joint venture	shall be ground for the forfeiture of the
shall submit the legal eligibility documents.	bid security. Each partner of the joint
The submission of technical and financial	venture shall submit the legal eligibility
eligibility documents by any of the joint	documents. The submission of technical
venture partners constitutes compliance.	and financial eligibility documents by
				any of the joint venture partners
				constitutes compliance.
				For infrastructure projects, JV bidders
				shall submit a JVA in accordance with
				RA 4566 and its IRR.

ANNEX B

Philippine Bidding Documents (PBDS) Instructions to Bidders (ITB) for Infrastructure Projects

Original			Amended
				Clause 12.1 (a) (viii)
Class "B" Document	Class "B" Document
If applicable, valid Joint Venture Agreement	If applicable, valid Joint Venture Agreement
(JVA) or, in lieu thereof, duly notarized	(JVA) shall be included in the bid.
statements from all potential joint venture
partners stating that they will enter into and
abide by the provisions of the JVA in the
instance that the bid is successful shall be
included in the bid.
				Clause 30.3 (a) (i)
30.3 Notwithstanding the issuance of the Notice	30.3 Notwithstanding the issuance of the
of Award, award of contract shall be subject to	Notice of Award, award of contract shall be
the following conditions:	subject to the following conditions:
(a)	Submission of the following documents	(a)	Submission of the following documents
	within the prescribed period from receipt by		within the prescribed period from receipt
	the Bidder of the notice that it has the Lowest		by the Bidder of the notice that it has the
	Calculated and Responsive Bid:		Lowest Calculated and Responsive Bid:
		(i)	Valid JVA, if applicable, within			(i)	Valid PCAB license and
			ten (10) calendar days;				registration for the type and cost of the
							contract to be bid for foreign bidders,
		(ii)	Valid PCAB license and				within thirty (30) calendar days, if
			registration for the type and cost of the				allowed under a Treaty, International
			contract to be bid for foreign bidders,				or Executive Agreement mentioned in
			within thirty (30) calendar days, if				ITB Clause 12.1 (a) (iv);
			allowed under a Treaty, International or
			Executive Agreement mentioned in ITB	(b)	Posting of the performance security in
			Clause 12.1(a)(iv);		accordance with ITB Clause 32;
(b)	Posting of the performance security in	(c)	Signing of the contract as provided in ITB
	accordance with ITB Clause 32;		Clause 31; and
(c)	Signing of the contract as provided in ITB	(d)	Approval by higher authority, if required.
	Clause 31; and
(d)	Approval by higher authority, if required.

Footnotes

1. An Act Creating the Philippine Licensing Board for Contractors, Prescribing its Powers, Duties and Functions, Providing Funds Therefor, and for Other Purposes.

2. Renumbered as Clause 12.1 (a) (viii) due to the amendments introduced by GPPB Resolution No. 21-2013 dated 30 July 2013, transferring the Tax Clearance as an Eligibility Document.