(NAR) VOL. 29 NO. 3/ JULY - SEPTEMBER 18
1. No need to mention the term “spouse” in the effect of blacklisting of individuals;WHEREAS, during the 6th GPPB and 8th IATWG Joint Meeting on 21 December 2017, the GPPB-TSO presented the proposed revision of the Blacklisting Guidelines, including the recommendation of the IATWG;
2. Clarify that the penalty of Suspension is applicable in any bidding process of the agency;
3. Clarify that the blacklisting after the lapse of project duration shall be applicable only prior to contract closure; and
4. Change the protest mechanism to appeals procedure to avoid confusion with the protest mechanism during bidding process;
1. Consistent use of the term “appeal” instead of “protest”; andNOW, 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 approve and adopt, as WE hereby confirm, adopt and approve the following
2. Retain the current amounts of the prescribed fees for filing an appeal in accordance with Section 55 of RA 9184 and its 2016 IRR.
1. APPROVE the Revised Guidelines for Blacklisting of Manufacturers, Suppliers, Distributors, Contractors and Consultants, copy of which is hereto attached as Annex “A”; andThe Revised Guidelines 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.
2. ISSUE a Circular informing the procuring entities on the procedures on the submission of Blacklisting Orders, copy of which is hereto attached as Annex “B”;
a) In case of individuals or sole proprietorships, to the bidders and their spouses;3. DEFINITION OF TERMS
b) In case of partnerships, to the partnership itself and its partners;
c) In case of cooperatives, to the cooperative itself and members of the board of directors, general manager or chief executive officer;
d) A partnership, joint venture or consortium which is blacklisted or which has blacklisted member/s and/or partner/s as well as a person/entity who is a member of a blacklisted joint venture or consortium are, likewise, not allowed to participate in any government procurement during the period of disqualification;
e) In the case of corporations, a single stockholder, together with his/her relatives up to the third civil degree of consanguinity or affinity, and their assignees, holding at least twenty percent (20%) of the shares therein, its chairman and president, shall be blacklisted after they have been determined to hold the same controlling interest in a previously blacklisted corporation or in two corporations which have been blacklisted; the corporations of which they are part shall also be blacklisted.
4.1 Procurement Stage4.2 Contract Implementation Stage
During the procurement stage, pursuant to Section 69 of R.A. 9184, the procuring entity shall impose on bidders or prospective bidders the penalty of blacklisting for one (1) year for the first offense, blacklisting for two (2) years for the second offense, from participating in the public bidding process, without prejudice to the imposition of additional administrative, civil or criminal sanctions, as provided by applicable laws, for the following violations:
a) Submission of eligibility requirements containing false information or falsified documents.
b) Submission of Bids that contain false information or falsified documents, or the concealment of such information in the Bids in order to influence the outcome of eligibility screening or any other stage of the public bidding.
c) Allowing the use of one’s name, or using the name of the name of another
for purpose of public bidding.
d) Withdrawal of a bid, or refusal to accept an award, or enter into contract with the government without justifiable cause, after he had been adjudged as having submitted the Lowest Calculated Responsive Bid or Highest Rated Responsive Bid.
e) Refusal or failure to post the required performance security within the prescribed time.
f) Refusal to clarify or validate in writing its Bid during post qualification within
a period of seven (7) calendar days from receipt of the request for clarification.
g) Any documented unsolicited attempt by a bidder to unduly influence the outcome of the bidding in his favor.
h) All other acts that tend to defeat the purpose of the competitive bidding, such as habitually withdrawing from bidding or submitting late bids or patently insufficient bids, for at least three (3) times within a year, except for valid reasons.
In addition to the penalty of blacklisting, the bid security posted by the concerned bidder or prospective bidder shall also be forfeited.
Pursuant to Section 69 (6) of R.A. 9184 and without prejudice to the imposition of additional administrative sanctions as the internal rules of the agency may provide and/or further criminal prosecution as provided by applicable laws, the procuring entity shall impose on contractors after the termination of the contract the penalty of blacklisting for one (1) year for the first offense, blacklisting for two (2) years for the second offense from participating in the public bidding process, for violations committed during the contract implementation stage, which include but not limited to the following:In addition to the penalty of blacklisting, the performance security posted by the contractor shall also be forfeited.
a) Failure of the contractor, due solely to his fault or negligence, to mobilize and start work or performance within the specified period in the Notice to Proceed (“NTP”);
b) Failure by the contractor to fully and faithfully comply with its contractual obligations without valid cause, or failure by the contractor to comply with any written lawful instruction of the procuring entity or its representative(s) pursuant to the implementation of the contract. For the procurement of infrastructure projects or consultancy contracts, lawful instructions include but are not limited to the following:
i. Employment of competent technical personnel, competent engineers and/or work supervisors;
ii. Provision of warning signs and barricades in accordance with approved
plans and specifications and contract provisions;
iii. Stockpiling in proper places of all materials and removal from the project site of waste and excess materials, including broken pavement and excavated debris in accordance with approved plans and specifications and contract provisions;
iv. Deployment of committed equipment, facilities, support staff and
manpower; and
v. Renewal of the effectivity dates of the performance security after its expiration during the course of contract implementation.
c) Assignment and subcontracting of the contract or any part thereof or substitution of key personnel named in the proposal without prior written approval by the procuring entity.
d) For the procurement of goods, unsatisfactory progress in the delivery of the goods by the manufacturer, supplier or distributor arising from his fault or negligence and/or unsatisfactory or inferior quality of goods, as may be provided in the contract;
e) For the procurement of consulting services, poor performance by the consultant of his services arising from his fault or negligence. Any of the following acts by the consultant shall be construed as poor performance:i. Defective design resulting in substantial corrective works in design and/or construction;f) For the procurement of infrastructure projects, poor performance by the contractor or unsatisfactory quality and/or progress of work arising from his fault or negligence as reflected in the Constructor’s Performance Evaluation System (“CPES”) rating sheet. In the absence of the CPES rating sheet, the existing performance monitoring system of the procuring entity shall be applied. Any of the following acts by the constructor shall be construed as poor performance:
ii. Failure to deliver critical outputs due to consultant’s fault or negligence;
and
iii. Specifying materials which are inappropriate, substandard, or way above acceptable standards.
iv. Allowing defective workmanship or works by the contractor being supervised by the consultant.i. Negative slippage of 15% and above within the critical path of the project due entirely to the fault or negligence of the contractor; andg) Willful or deliberate abandonment or non-performance of the project or contract by the contractor resulting to substantial breach thereof without lawful and/or just cause.
ii. Quality of materials and workmanship not complying with the approved specifications arising from the contractor's fault or negligence.
h) In case it is determined prima facie that the contractor has engaged, before or during implementation of the contract, in unlawful deeds and behaviors relative to contract acquisition and implementation as enumerated in Section III.D. of the Guidelines on Termination of Contracts.
Upon verification of the existence of grounds for blacklisting, the BAC shall immediately notify the contractor concerned in writing, advising him that:5.3 Hearings
a) a complaint for blacklisting has been filed against him, or he has been considered by the BAC for blacklisting, stating the grounds for such;
For this purpose, multiple violations in a procurement project as grounds for blacklisting shall be included in one complaint, which shall be considered separate offenses, once proven.
b) he has the opportunity to show cause why he should not be suspended and blacklisted;
c) a hearing shall be conducted before the BAC, upon his request, where he may present documentary evidence, verbal testimony and cross-examine the witnesses presented against him; and
d) the consequences of being suspended and blacklisted.
Within five (5) calendar days from receipt of notification, the contractor shall submit its written answer with documentary evidence to the BAC with a manifestation for request of hearing to determine questions of fact, if he so desires. No time extension shall be allowed.
Should the contractor fail to answer within the same period, the BAC shall issue a resolution recommending to the Head of the Procuring Entity the immediate suspension of the contractor from participating in any bidding process of the agency and the forfeiture of his bid security.
a) The decision is not in conformity with the evidence and/or facts presented; andThe Head of the Procuring Entity shall resolve with finality the motion for reconsideration within seven (7) calendar days from the filing thereof and furnish suspended contractor a copy of the resolution immediately from its promulgation.
b) Newly discovered evidence or facts which not be discovered and produced at the investigation and which when presented would probably alter the result of the investigation.
a) Notice of Blacklisting. Upon recommendation by the Implementing Unit, the Head of the Procuring Entity shall initiate the blacklisting procedures by a written notice to the contractor conveying the following information:7. STATUS OF BLACKLISTED PERSON/ENTITY
1. a statement of the acts that constitute the ground(s) for blacklisting;
2. an instruction to the contractor to show cause as to why it should not be blacklisted; and
3. special instructions of the Procuring Entity, if any.
The Notice of Blacklisting shall be accompanied by a copy of the Verified
Report.
b) Show Cause. Within a period of seven (7) calendar days from receipt of the Notice of Blacklisting, the contractor shall submit to the Head of the Procuring Entity a verified position paper stating why it should not be blacklisted.
If the contractor fails to show cause after the lapse of the seven (7) day period, either by inaction or by default, the Head of the Procuring Entity shall issue a Blacklisting Order.
c) Decision. Within a non-extendible period of ten (10) calendar days from receipt of the verified position paper, the Head of the Procuring Entity shall decide whether or not to blacklist the contractor. It shall serve a written notice to the contractor of its decision which shall become final and executory after the lapse of seven (7) calendar days from the receipt of the notice of decision.
10.1 Unless otherwise provided in these guidelines, the blacklisting agency concerned shall submit to the GPPB, within seven (7) calendar days after the issuance of the blacklisting order/delisting orders made by the agency, the following documents:11. AMENDMENTSa) Blacklisting Order duly signed by the Head of the Procuring Entity/appellate authority containing, among others, Department/Office Order or Board Resolution number, name and address of the blacklisted person/entity, license number, if applicable, Authorized Managing Officer (“AMO”), name of project/contract and location/amount, specific ground(s)/offense(s) committed as provided in Section 4 hereof, sanction imposed and its specific duration, that is, “start” date and “end” date, and date of issuance of the order to blacklist.10.2 The GPPB shall prepare the Consolidated Blacklisting Report every quarter, based on the submitted Blacklisting Orders as provided for in Section 9.1(a) hereof and disseminate the same to procuring entities and the Commission on Audit (“COA”). The report shall be further posted in the GPPB website and the Government Electronic Procurement System (“G-EPS”) and shall indicate the number of times a person/entity has been blacklisted, the type of offense/violation committed, the penalty imposed, and the blacklisting agency concerned.
b) Delisting Order duly signed by the blacklisting agency containing, among others, Department/Office Order or Board Resolution number, name and address of the blacklisted person/entity, name of project/contract and location, specific sanction being lifted and the number of previously issued blacklisting Department/Office Orders or Board Resolutions, effectivity date of delisting, and date of delisting approval.
The GPPB shall delist from such report those whose sanctions are lifted automatically after serving the given penalty as provided for in Section 8 hereof.
10.3 The ministerial authority of the GPPB and its Technical Support Office is limited to the receipt and posting of Blacklisting Orders in its website and the preparation of the Consolidated Blacklisting Report based on submitted Blacklisting Orders. The blacklisting order submitted to the office carries with it the presumption that the provisions of the Blacklisting Guidelines and the Contract Termination Guidelines were duly complied with and that due process was afforded the blacklisted manufacturer, supplier, distributor, contractor or consultant.
Non-posting of the Blacklisting Order in the GPPB Website or the non- inclusion of the name of the blacklisted manufacturer, supplier, distributor, contractor or consultants in the GPPB Consolidated Blacklisting Report does not affect the status of the blacklisted entity in as much as the operative act of the blacklisting is the issuance of the Blacklisting Order by the agency concerned, and not the submission thereof to the GPPB.
10.4 In the case of procurement of infrastructure projects, should a blacklisting agency decide to refer the case of its blacklisted person/entity to the Philippine Contractors Accreditation Board (“PCAB”) for license suspension/revocation, it shall submit to PCAB a copy of the decision accompanied with supporting documents.
10.5 All existing blacklisting reports of the Government or any of its procuring entities, as well as the list of constructors whose licenses are suspended or revoked by the PCAB as of the date of effectivity of the IRR, are hereby adopted and made part of the GPPB Consolidated Blacklisting Report upon the issuance of these guidelines.
11.1 In the implementation of these guidelines, the GPPB may introduce modifications thereto through the amendment of its specific provisions as the need arises.12. EFFECTIVITY
11.2 Any amendment to these guidelines shall be applicable to government projects advertised for bid after the effectivity of the said amendment
3.1 Unless otherwise provided, the blacklisting agency concerned shall submit to the GPPB, within seven (7) calendar days after the issuance of the blacklisting order/delisting order made by the agency, the following documents:4.0 This Circular shall take effect immediately.3.1.1 Blacklisting Order duly signed by the Head of the Procuring Entity/appellate authority containing, among others, Department/Office Order or Board Resolution number, name and address of the blacklisted person/entity, license number, if applicable, Authorized Managing Officer (“AMO”), name of project/contract and location/amount, specific ground(s)/offense(s) committed as provided in Section 4 hereof, sanction imposed and its specific duration, that is, “start” date and “end” date, and date of issuance of the order to blacklist.3.2 The GPPB shall prepare the Consolidated Blacklisting Report every quarter, based on the submitted Blacklisting Orders as provided for in Section 9.1(a) hereof and disseminate the same to procuring entities and the Commission on Audit (“COA”). The report shall be further posted in the GPPB website and the Government Electronic Procurement System (“G-EPS”) and shall indicate the number of times a person/entity has been blacklisted, the type of offense/violation committed, the penalty imposed, and the blacklisting agency concerned.
3.1.2 Delisting Order duly signed by the blacklisting agency containing, among others, Department/Office Order or Board Resolution number, name and address of the blacklisted person/entity, name of project/contract and
location, specific sanction being lifted and the number of previously issued blacklisting Department/Office Orders or Board Resolutions, effectivity date of delisting, and date of delisting approval.
The GPPB shall delist from such report those whose sanctions are lifted automatically after serving the given penalty.
3.3 The ministerial authority of the GPPB and its Technical Support Office is limited to the receipt and posting of Blacklisting Orders in its website and the preparation of the Consolidated Blacklisting Report based on submitted Blacklisting Orders. The blacklisting order submitted to the office carries with it the presumption that the provisions of the Blacklisting Guidelines and the Contract Termination Guidelines were duly complied with and that due process was afforded the blacklisted manufacturer, supplier, distributor, contractor or consultant.
Non-posting of the Blacklisting Order in the GPPB Website or the non-inclusion of the name of the blacklisted manufacturer, supplier, distributor, contractor or consultants in the GPPB Consolidated Blacklisting Report does not affect the status of the blacklisted entity in as much as the operative act of the blacklisting is the issuance of the Blacklisting Order by the agency concerned, and not the submission thereof to the GPPB.
3.4 In the case of procurement of infrastructure projects, should a blacklisting agency decide to refer the case of its blacklisted person/entity to the Philippine Contractors Accreditation Board (“PCAB”) for license suspension/revocation, it shall submit to PCAB a copy of the decision accompanied with supporting documents.