Special Bids and Awards Committee

SBAC Resolution No. 3 

Supply and Delivery of CF Cards-Main, CF Cards-WORM, Thermal Papers, Marking Pens, Toners and External Rechargeable Batteries for the May 13, 2013 Automated National and Local Elections
Reference No. 004-2012

Date: 18 August 2012

This resolves the August 14, 2012 Motion for Reconsideration filed by the Joint Venture of LDLA Marketing, Inc, DTM Prints and Labels Specialist, Inc. and Accent Micro Technologies, Inc. (LDLA for brevity) through counsel after its having been declared as INELIGIBLE TO BID for the Supply and Delivery of CF Cards-Main, CF Cards-WORM, Thermal Papers, Marking Pens, Toners and External Rechargeable Batteries for the May 13, 2013 Automated National and Local Elections during the Opening of Bids on August 13, 2012.

LDLA failed to comply with the requirement of a Sworn Statement of all its on-going and completed government and private contracts within the last seven (7) years prior to the deadline for the submission and opening of bids under Clause 12.1 (a) (iii) (iii.1-iii.6) of the Section III "Bid Data Sheet" (BDS) in relation to Clause 12.1 (a) (iii) (iii.1-iii.6) of Section II "Instructions to Bidders" (ITB) stated in the Bidding Documents for this Procurement Project which provides, to wit:

Clause 12.1 (a) (iii) (iii.1-iii.6)BDS

"Sworn Statement of all its ongoing and completed government and private contracts within the last seven (7) years prior to the deadline for the submission and opening of bids, including contracts awarded but not yet started, if any. The statement shall include, for each contract, the following:
(iii.1) name of contract;
(iii.2) date of contract;
(iii.3) kinds of services;
(iii.4) amount of contract and value of outstanding contracts;
(iii.5) date of delivery; and
(iii.6) end user’s acceptance or official receipt(s) issued for the contract, if completed."

In its Motion, LDLA avers the following:

1. There is no requirement that, to be eligible to bid, a prospective bidder must notarize the technical documents it submits to the COMELEC;
2. All that is required that there be a sworn statement, using the prescribed form in section VII of the Invitation to Bid;
3. The alleged deficiency does not detract from the substance and quality of LDLA’s bid and may be corrected by an affidavit attesting to the existence and authenticity of the List of Completed Projects to which it attachedan affidavit dated August 14, 2012; and
4. COMELEC did not disqualify other bidders for violating the requirements in the Invitation to Bid that bidders should bid for all items in the lot.

We also note the Oral Manifestation during the Opening of Bids upon inquiry on the deficiency by Mr. Salvador F. Novenario, duly authorized representative of LDLA, wherein he stated for the record that they understood the "Sworn Statement" requirement for the List of all Ongoing and Completed Government and Private Contracts to be merely that of a requirement for a "Certified True Copy". Finally, we note the declaration of LDLA in its Motion that its disqualification on a "non-deficiency" is unfair and disadvantageous to the government "when it complied with all the requirements and submitted a bid significantly lower than all other bids".

Records would readily reveal that LDLA failed to have its statement of all ongoing and completed government and private contracts subscribed and sworn before a notary public as required in the BDS. This is undisputed and admitted by Mr Novenario as well as the declared as a fact in its Motion.

Therefore, the only issue to be resolved is whether or not the non-notarization of LDLA’s List of all Ongoing and Completed Government and Private Contracts is a ground for its disqualification and declaration as ineligible to bid for this procurement project.

After due deliberation, the SBAC resolves to AFFIRM the INELIGIBILITY TO BID of LDLA.

A priori, the interpretation of Mr. Novenario as to his equation of "Sworn Statement" for a "Certified True Copy" is bereft of merit. If such was the case, why was his company able to have the Omnibus "Sworn Statement" under Clause 12.1 (b) (iii) ITB following Section 25.2 (a) (iv) of the R-IRR of RA No. 9184 subscribed and sworn before a notary public? Said requirement similarly used the term "sworn statement". Therefore, it is clear that LDLA readily understood "sworn statement" to be that of notarization under the Notarial Act of 2004.

Secondly, the TWG subjected the eligibility documents submitted by LDLA against a checklist of required documents using a non-discretionary "pass/fail" criterion as stated in the Instruction to Bidders. In this regard, bids that fail to include any requirement or are incomplete or patently insufficient shall be considered as "failed" and thereby rendering the prospective bidder as "ineligible".

Let it be known that the Preliminary Examination of Bids under Rule IX of the Revised Implementing Rules and Regulations (RIRR) mandates a non-discretionary "pass/fail" criterion – meaning, without exercise of discretion, a mere evaluation of presence or absence, inclusion and completeness, AND NOT a determination of whether or not a bidder has substantially complied with the requirements which necessarily requires the exercise of discretion contrary to the Rules.

The Rules require only full compliance to stated documentary requirements, which, in this case under Clause 12.1 (a) (iii) (iii.1-iii.6) of the Section III "Bid Data Sheet" (BDS), unequivocally, plainly, unambiguously, unmistakably, explicitly and indisputably provides for a Sworn Statement of all its ongoing and completed government and private contracts within the last seven (7) years prior to the deadline for the submission and opening of bids.

Thus, contrary to the averments of LDLA:

(i) There is a requirement that List of all Ongoing and Completed Government and Private Contracts, as part of the eligibility requirements be made through a sworn statement; and thus, must be subscribed and sworn before a notary public;

(ii) The Omnibus Sworn Statement, a requirement under Clause 12.1 (b) (iii) ITB following Section 25.2 (a) (iv) of the R-IRR of RA No. 9184and using the form prescribed in Section VII Bidding Forms is different from the Sworn Statement of all its ongoing and completed government and private contracts within the last seven (7) years prior to the deadline for the submission and opening of bids requirement under Clause 12.1 (a) (iii) (iii.1-iii.6) of the Section III "Bid Data Sheet" (BDS) – one cannot take the place of or substitute the other. Both must be submitted in the required form as stated in the ITB and the BDS.

(iii) Though it might be possible that any deficiency will not necessarily detract from the substance and quality of any bid, it may not be however corrected by the submission of another document after the deadline of the submission of bids and most especially after the bid envelopes had been opened.

Section 25.5 of the R-IRR of RA 9184provides: "[b]ids, including the eligibility requirements under Section 23.1 of this IRR, submitted after the deadline shall not be accepted by the BAC".

Further, Section 26.1 of the same Rules provide: "A bidder may modify its bid, provided that this is done before the deadline for the submission and receipt of bids… Bid modifications received after the applicable deadline shall not be considered and shall be returned to the bidder unopened."

(iv) Nothing in the Invitation to Bid indicated that prospective bidders should bid for all items in the lot or that failure to do so would result to a disqualification or declaration of ineligibility.

To put everything in perspective, and for the sake of discussion, if indeed there is a requirement that prospective bidders should bid for all lots, any instruction for that matter would be embodied in the Bid Data Sheet and not in the Invitation to Bid.

For the sake of argument once more, if there is indeed that requirement, a failure to bid for all would merely result to a bid being declared non-responsive but not necessarily and automatically to the declaration of the bidder as disqualified or ineligible.

Most importantly, Bid Bulletin No. 1 dated August 6, 2012 specifically states:

"The public is hereby informed of the following clarifications concerning the Bidding Documents for the Public Bidding…

1. Section 1…
2. Section III – Bid Data Sheet has been revised, and is attached as Annex ‘B’ for reference…"

Said Revised Section III (BDS) provides: "[s]ection 28.3… For purposes of bid evaluation and award, Bidders shall have the option of submitting a proposal on any or all lots; and the evaluation and awarding of the contract to the bidder with the lowest calculated responsive bid will be undertaken on a per lot basis."

Clause 6.2 (d) of Section II ITB "Bidder’s Responsibilities" of the Bidding Documents reads:

"6.2. The Bidder is responsible for the following:

1. Having taken steps to carefully examine all of the Bidding Documents…
2. Having complied with its responsibility to inquire or secure Supplemental/Bid Bulletin(s) as provided under ITB Clause 10.3…"

In relation thereto, it is the responsibility of all prospective bidders in this Procurement Project, necessarily including Movant LDLA, to update itself on any modification or clarification of the Bidding Documents, notably herein Bid Bulletin No. 1, to which, Section 22.5.3. of the R-IRR is most instructive: "…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…"

Finally, we take exception to LDLA’s declaration that its disqualification on a "non-deficiency" is unfair and disadvantageous to the government "when it complied with all the requirements and submitted a bid significantly lower than all other bids". Records will show that upon LDLA’s declaration of ineligibility on account of patent deficiency, its second bid envelope for the financial component, was not opened in compliance with Sections 30.1 and 30.2 of the R-IRR of RA 9184. Verily, no person or entity, other than LDLA, has seen or determined whether the latter had indeed submitted a bid significantly lower than all other bids". Therefore, to claim such, at this stage is purely self-serving; and no party whose supposed second bid envelope remained unopened due to ineligibility, may lay claim to any disadvantage to the government.

For failure to comply with all the requirements stated in the Bidding Documents following the Revised Implementing Rules and Regulations of R. A. No. 9184, LDLA must be declared INELIGIBLE TO BID.

WHEREFORE, premises considered, the Motion for Reconsideration of LDLA is DENIED, and its declaration as INELIGIBLE TO BID is hereby AFFIRMED.

SO ORDERED.