Draft IRR (Disclosure of Relations)

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Draft IRR (Disclosure of Relations)

Post by RDV @ GP3i on Mon Feb 23, 2009 10:18 pm

Sec. 47 of IRR-A is proposed to be amended in the draft IRR by deleting the underlined items, as shown:

Section 47. Disclosure of Relations

In addition to the proposed contents of the Invitation to Bid as mentioned under Section 21 of this IRR, all bids shall be accompanied by a sworn affidavit of the bidder that it is not related to the head of the procuring entity by consanguinity or affinity up to the third civil degree. Failure to comply with the aforementioned provision shall be a ground for the automatic disqualification of the bid in consonance with Section 30 of this IRR. [For this reason, relation to the head of the procuring entity within the third civil degree of consanguinity or affinity shall automatically disqualify the bidder from participating in the procurement of contracts of the procuring entity. On the part of the procuring entity, this provision shall also apply to any of its officers or employees having direct access to information that may substantially affect the result of the bidding, such as, but not limited to, the members of the BAC, the members of the TWG, the BAC Secretariat, the members of the PMO, and the designers of the project. On the part of the bidder, this provision shall apply to the following persons:

a) If the bidder is an individual or a sole proprietorship, to the bidder himself;
b) If the bidder is a partnership, to all its officers and members;
c) If the bidder is a corporation, to all its officers, directors, and controlling stockholders; and
d) If the bidder is a joint venture, the provisions of items (a), (b) or (c) of this Section shall correspondingly apply to each of the members of the said joint venture, as may be appropriate.]


With the proposed amendment, does it mean that the prohibited relation, which need to be disclosed by the bidder, is now limited to the head of procuring entity alone?
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Re: Draft IRR (Disclosure of Relations)

Post by engrjhez® on Mon Feb 23, 2009 11:29 pm

I believe the underlined section must not be omitted as the disclosure provision will gradually be weaker than the current IRR(A).

Nevertheless, the prohibition is still enforcable on the basis of the RESERVATION CLAUSE where the HOPE may "...accept or reject any bid, to annul the bidding process, and to reject all bids at any time prior to contract award..." when there is prima facie evidence of collusions amongst the BAC and/or Suppliers/Contractors.
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Disclosure of Relations

Post by dlsn on Tue Mar 10, 2009 11:18 am

The portion of the provision highlighted by Sir RDV was bracketed in the Draft IRR to note the reservations made by Development Partners on its inclusion in the IRR. They see this as a cause for bidders' apprehension on submitting bids because of uncertainty whether they have an officer, member, director, or controlling stockholder who may be related to any officer or employee of the procuring entity having direct access to information that may substantially affect the result of the bidding.

Also, a more difficult issue is the fact that RA 9184 expressly disqualifies only a bidder who is related to the HOPE. The IRR-A appears to have expanded the disqualification by relationship to any officer or employee having direct access to information that may substantially affect the result of the bidding.

If I may ask, do you think the highlighted statement should be retained? If so, what practical measures do you propose for its proper implementation?
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Re: Draft IRR (Disclosure of Relations)

Post by RDV @ GP3i on Tue Mar 10, 2009 12:05 pm

dlsn wrote:The portion of the provision highlighted by Sir RDV was bracketed in the Draft IRR to note the reservations made by Development Partners on its inclusion in the IRR. They see this as a cause for bidders' apprehension on submitting bids because of uncertainty whether they have an officer, member, director, or controlling stockholder who may be related to any officer or employee of the procuring entity having direct access to information that may substantially affect the result of the bidding.

Also, a more difficult issue is the fact that RA 9184 expressly disqualifies only a bidder who is related to the HOPE. The IRR-A appears to have expanded the disqualification by relationship to any officer or employee having direct access to information that may substantially affect the result of the bidding.

If I may ask, do you think the highlighted statement should be retained? If so, what practical measures do you propose for its proper implementation?

I think, relationship to the HOPE should be automatic disqualification, but relationship to the BAC, and BAC Support Staff, and other officials and employees should not be automatic, but the provisions of the Anti-Graft Law (R.A. 3019) would still apply to them, particularly the following:

"Sec. 4. Prohibition on private individuals. - (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer."

In other words, just a re-phrasing of the existing provision of IRR-A may be sufficient without necessarily deleting the bracketed provisions.
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