THE Court of Appeals (CA) has sustained the decision of the Manila International Airport Authority (Miaa) that voided the bidding for the purchase of 14 brand-new units of full body-scanning equipment for the Ninoy Aquino International Airport (Naia) terminals worth P149.5 million.
In an 18-page decision penned by Associate Justice Zenaida Galapate-Laguilles, the CA’s Third Division reinstated the July 11, 2013, and January 30, 2014, resolutions of the Miaa board, which adopted and approved the recommendation of the Miaa-Bids and Awards Committee (BAC) declaring a failure of bidding for the project on the basis of nonposting of Bid Bulletin 3 in the Philippine Government Electronic Procurement System (PhilGEPS), and denying the request for reconsideration filed by the aggrieved bidder Defense and Protection System Phils Inc. (DPSPI).
The CA ruling set aside a decision of the Pasay Regional Trial Court Branch 115 that granted DPSPI’s petition for certiorari and mandamus.
The CA noted that the nonposting of Bid Bulletin 3 is a violation of Section 22.5.3 of the Implementing Rules of Republic Act (RA) 9184, or the Government Procurement Reform Act.
The said provision states: “Any supplemental/Bid Bulletin issued by the BAC shall be posted in PhilGEPS, the web site of the procuring entity concerned, if available, and at any conspicuous pace within the premises of the procuring entity.”
The CA held that the nonposting of Bid Bulletin 3, which was a violation of Section 22.5.3 of the Revised IRR of RA 9184, was “fatal,” as its gives DPSPI undue advantage over other bidders.
“We cannot agree with DPSPI that the nonposting of Bid Bulletin 3 on the PhilGEPS web site is ‘inconsequential’ and a ‘minor deviation’ from the rules that should not prevent a winning bidder from receiving the award due to a procedural defect,” the CA said.
“While it is true that DPSPI will not be affected by such nonposting, other interested or potential bidders for the project were definitely deprived of this notice regarding the amendment of the technical requirements for the bidding of the project,” the CA explained.
It noted that PhilGEPS is the primary source of information on government procurement, as provided under RA 9184, and that the posting of bid bulletins is mandatory under the law.
“In this case, Miaa-BAC’s failure to post Bid Bulletin 3 on the PhilGEPS web site obviously deprived other potential bidders of the opportunity to be notified and informed of the changes in the technical requirements prior to the deadline of submission of bids on April 3, 2013, which clearly affected the integrity of the bidding process,” the CA stressed.
In fact, the CA said DPSPI was given undue advantage when the amendment of the terms of the bidding was not posted on the PhilGEPS web site, as DPSPI was allowed to submit the transport security authority (TSA) certification of the equipment more than a month after the deadline of submission of bids.
Furthermore, the CA said, the issuance of the notice of award to DPSPI by the Miaa did not render the case moot and academic, as even the Supreme Court, in several cases, has resolved petitions even after the government agency has issued a notice of award.
Court records showed that on February 12, 2013, the Miaa opened for bidding the contract for the supply, installation and commission of 14 units of full body-scanning equipment for the Naia terminals.
One of the technical specifications of the bid was that it must be TSA qualified or its European equivalent.
Aside from said requirement, it was stated in the bidding documents that the TSA certification or its European equivalent must be submitted together with the technical documents during the bidding.