Blog Lecture No. 79: Exemptions from Competitive Bidding

You may want to look into this previous blog lecture as it picks up from where it left off.

What are the exemptions to the general rule of public bidding provided by present laws?

More accurately, these are called Alternative Methods of Procurement.

Very good, wise guy. So what are these so-called alternative methods?

These are:

1. Limited Source Bidding
2. Direct Contracting
3. Repeat Order
4. Shopping
5. Negotiated Procurement

So what is limited source bidding?

This is otherwise known as Selective Bidding. It is a method of Procurement that involves direct invitation to bid by the government from a set of pre-selected suppliers or consultants with known experience and proven capability relative to the requirements of a particular contract.

When will this be applicable?

It applies to:

1) Procurement of highly specialized types of goods and consulting services which are known to be obtainable only from a limited number of sources.

For example, the government requires a specialized smart card or biometric reader that can be supplied by a limited number of vendors. Bidding will be limited to a small group.

2) Procurement of major plant components where it is deemed advantageous to limit the bidding to known eligible bidders in order to maintain an optimum and uniform level of quality and performance of the plant as a whole.

For example, an electric plant has a G.E. turbine. Of course, you will limit the bidders to those who can supply the compatible parts. Bear in mind, reference to brand names is not allowed in the terms of reference but this case is an exemption.

What is direct contracting?

It is otherwise known as Single Source Procurement. It is a method of Procurement that does not require elaborate Bidding Documents because the supplier is simply asked to submit a price quotation or a pro-forma invoice together with the conditions of sale, which offer may be accepted immediately or after some negotiations.

Simply put, there will be no formalities here like submission of a specific bid form or a strict documents required by our procurement law. The bidders will just submit the accustomed forms like price quotes or invoices, to be accepted quickly or after some negotiations.

When is this applicable?

It applies to the following:

1. Procurement of Goods of proprietary nature, which can be obtained only from the proprietary source, i.e. when patents, trade secrets and copyrights prohibit others from manufacturing the same item.

2. When the Procurement of critical components from a specific manufacturer, supplier or distributor is a condition precedent to hold a contractor to guarantee its project performance, in accordance with the provisions of his contract.

3. Those sold by an exclusive dealer or manufacturer, which does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained at more advantageous terms to the government.

What is repeat order?

It is a method of Procurement that involves a direct Procurement of Goods from the previous winning bidder, whenever there is a need to replenish Goods procured under a contract previously awarded through Competitive Bidding.

Here, the previous winning bidder gets to win a second round of procurement be default. No new bidding, no new process. The previous winner get to supply goods or services anew.

What are the conditions for a repeat order?

These are:

1. The unit price must be equal to or lower than that provided in the original contract;

2. The repeat order does not result in splitting of requisitions or purchase orders;

Aside from the obvious, what is shopping?

It is a method of Procurement whereby the Procuring Entity simply requests for the submission of price quotations for readily available off-the-shelf Goods or ordinary/regular equipment to be procured directly from suppliers of known qualification.

Ordinary or regular office supplies include paper, pencils, pens, clips, etc.

Under what circumstances can shopping be allowed?

It can be resorted to in any of the following circumstances:

1. When there is an unforeseen contingency requiring immediate purchase: Provided, however, That the amount shall not exceed Fifty thousand pesos (P50,000); or

2. Procurement of ordinary or regular office supplies and equipment not available in the Procurement Service involving an amount not exceeding Two hundred fifty thousand pesos (P250,000): Provided, however, That the Procurement does not result in Splitting of Contracts: Provided, further, That at least three (3) price quotations from bona fide suppliers shall be obtained.

What is negotiated procurement?

It is a method of Procurement that may be resorted under the extraordinary circumstances, whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant.

When is this applicable?

It can be resorted to in the following cases:

1. After two failed competitive biddings.

When the government went through two bidding processes but both failed for one reason or another, it can then go through negotiated procurement.

2. In case of imminent danger to life or property during a state of calamity, or when time is of the essence arising from natural or man-made calamities or other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities.

Take note of the key words like imminent, state of calamity, time is of the essence, etc.

3. Take-over of contracts, which have been rescinded or terminated for causes provided for in the contract and existing laws, where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities

For example, a road contractor repairing a major road fails to complete the job for one reason or another and gets terminated. The government can negotiate with another without competitive bidding to save time as the road is urgently needed.

4. Where the subject contract is adjacent or contiguous to an on-going infrastructure project

5. Purchases of goods from another agency of the Government

6. In the case of individual consultants hired to do work that is highly technical or proprietary; or primarily confidential or policy determining, where trust and confidence are the primary consideration for the hiring of the consultant

7. When the procurement involves major defense equipment for use by the AFP and the Secretary of National Defense has determined that the interests of the country shall be protected by negotiating directly with an agency or instrumentality of another country

8. Procurement of real estate since it is under another law

9. Those under the build, operate and transfer scheme or any of its variations, since it will be the BOT law will govern.

10. In some bilateral loans, a particular contractor has already been identified in the grant agreement with the foreign funding institution, the procurement guidelines of the foreign creditor shall apply and not the general rule of competitive bidding.

Let’s wait for the next hearing to make another lecture, if applicable.

Blog Lecture No. 78: Weight and Sufficiency of Evidence

Let’s get right to it shall we?

What is the standard of evidence needed to win in a civil case?

According to Section 1, Rule 133 of the Rules of Court, “In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. ”

What is preponderance of evidence?

In the simplest terms, preponderance of evidence is “where there is more weight or weightier evidence on a particular issue lies.” The rules define it as superior weight of evidence on the issues involved lies.

Here is where you can conjure up the weighing scale of Lady Justice. While she is blind, she will rule in favor the litigant who presented to the weightier evidence on the issue at at. She will rule on the party who proved his/her point more.

For this, the court may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity of knowing the facts to which there are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial.

Does the court rule in favor of a party who gave more evidence or presented more witnesses?

Not necessarily. Quality and not quantity rules.

The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. (Section 1, Rule 133, Rules of Court).

You may have produced more evidence, but were all demolished by your counterpart as irrelevant, immaterial or incredible, you will still lose in a civil case. You may have more witnesses but most of them are convicted perjurers or have questionable backgrounds or motives, or did not actually the events they were testifying on. In such a case, the other party would have presented more preponderant evidence.

What about in criminal cases?

In criminal cases the standard is proof beyond reasonable doubt.

What is that standard?

According to Section 2, Rule 133 of the Rules of Court, “Proof beyond reasonable doubt does not mean such a degree of proof, excluding possibility of error, produces absolute certainly. Moral certainly only is required, or that degree of proof which produces conviction in an unprejudiced mind.”

Proof beyond reasonable doubt does not mean absolute or 100% certainty of guilt. If the witnesses or the documentary (or object evidence) produces a conviction in an unbiased mind, that is enough as proof beyond reasonable doubt.

Here, the judge’s experience and lack of bias is essential. So we really have to get very good judges for criminal cases.

If you can’t produce witnesses, documents or object that do not directly prove that a person actually committed a crime, can you still prove someone’s guilt beyond reasonable doubt?

Yes. Circumstantial evidence can still produce a conviction of guilt beyond reasonable doubt. According to Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for conviction if:(

a) There is more than one circumstances;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

Can you give an example?

Sure. In an adultery case, you need not produce an eyewitness that saw accused couple in the throws of passion. You can prove the following:

1. They are involved in a relationship, through love letters, eyewitness accounts of them going to social functions together or seen frequently on dates, and publicly displaying their affection for each other.

2. On a certain night, they checked into a motel/hotel, and in hand, just the two of them and not as part of a group.

3. There, they spent the night inside the motel and never left until a significant lapse of time.

Here, an unbiased mind (and not the mind of the aggrieved husband) would reasonably conclude beyond any reasonable doubt that the accused persons committed adultery even though you did not see them doing the dastardly deed. One does not check into a motel or a hotel together hand in hand to hold a private bible study session, you know. The conclusion that they had sexual intercourse is pretty reasonable given the circumstances and fact already proven.

How about in administrative cases or cases before quasi-judicial bodies?

The standard of proof in administrative cases is less, only substantial evidence.

What is that standard of substantial evidence?

It is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

So the key terms is relevance and reasonable. For as long as there is some evidence that tend to prove the facts, that is enough as substantial evidence.

Can you give an example?

For government employees, failure to properly account for amounts entrusted to them may lead reasonable mind to conclude they embezzled them, enough to impose sanctions like suspension or dismissal from service. If course, this fact may or may not be enough to land them in jail because the proof required to do that is beyond reasonable doubt.