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Uniform Guidelines for Blacklisting of Manufacturers, Suppliers, Distributors, Contractors and Consultant
DPWH Guidelines
Your Browser Doesn't Support Canvas. Showing the Text Content of the PDF Instead: UNIFORM GUIDELINES FOR BLACKLISTING OF
MANUFACTURERS, SUPPLIERS, DISTRIBUTORS, CONTRACTORS
AND CONSULTANTS
1.
SCOPE
These guidelines shall govern the blacklisting of manufacturers, suppliers, distributors,
contractors and consultants (“contractors” for brevity) involved in government procurement
for offenses or violations committed during competitive bidding and contract implementation,
in accordance with Section 69.4 of the Implementing Rules and Regulations Part A (“IRR-A”)
of Republic Act No. 9184 (“R.A. 9184”), otherwise known as the “Government Procurement
Reform Act.”
These guidelines shall apply to all branches, constitutional commissions and offices,
agencies, departments, bureaus, offices, and instrumentalities of the Government,
including government-owned and/or controlled corporations (“GOCCs”), government
financial institutions (“GFIs”), state universities and colleges (“SUCs”), and local
government units (“LGUs”).
2.
PROHIBITION ON BLACKLISTED PERSONS/ENTITIES TO PARTICIPATE IN THE
BIDDING OF GOVERNMENT PROJECTS/CONTRACTS
A person/entity that is blacklisted by a procuring entity and/or included in the Government
Procurement Policy Board (“GPPB”) Consolidated Blacklisting Report shall not be allowed
to participate in the bidding of all government projects during the period of disqualification
unless it is delisted as provided for in these guidelines.
A 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.
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.
3.
DEFINITION OF TERMS
3.1
Appellate Authority. The department, office or government unit exercising general
and/or administrative supervision/control over the blacklisting agency. Department
level agencies shall exercise appellate authority over offices, agencies, bureaus,
government units, GOCCs and SUCs under their jurisdiction. Provided, further,
that blacklisting decisions of government agencies that are not subject to general
and/or administrative supervision/control of any department, office or government unit
shall be final and executory.
3.2
Award.
A written notice from the procuring entity accepting a bid or proposal.
Uniform Guidelines for Blacklisting
Page 2
3.3
3.4
Suspension. The administrative penalty imposed for infractions committed by a
contractor during the competitive bidding stage, whereby such contractor is prohibited
from further participation in the bidding process of an agency.
3.5
Consolidated Blacklisting Report. A report prepared by the GPPB containing the
list of suppliers, manufacturers, distributors, contractors or consultants blacklisted by
procuring entities.
3.6
Contract Implementation. A process of undertaking a project or contract in
accordance with the contract documents.
3.7
Termination of Contract. Extinction of contract by reason of resolution or rescission
under Articles 1191, 1380, 1381 of the Civil Code, Section 68 of the IRR-A of R.A.
9184 and other applicable laws arising from the default of the contractor.
3.8
Delist. Removal of a person/entity from the Consolidated Blacklisting Report.
3.9
4.
Blacklisting. An administrative penalty disqualifying a person or an entity from
participating in any government procurement for a given period.
Blacklisted Person/Entity. A person/entity who was disqualified by an agency
and/or is included in the GPPB Consolidated Blacklisting Report.
SANCTIONS AND GROUNDS FOR BLACKLISTING
4.1
Competitive Bidding Stage
During the competitive bidding stage, pursuant to Section 69 of R.A. 9184, the
procuring entity shall impose on bidders or prospective bidders the penalty of
suspension for one (1) year for the first offense, suspension for two (2) years for
the second offense from participating in the public bidding process, 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, for the following violations:
1. Submission of eligibility requirements containing false information or falsified
documents.
2. 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.
3. Unauthorized use of one’s name, or using the name of the name of another for
purpose of public bidding.
4. 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.
5. Refusal or failure to post the required performance security within the
prescribed time.
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6. 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.
7. Any documented unsolicited attempt by a bidder to unduly influence the
outcome of the bidding in his favor.
8. All other acts that tend to defeat the purpose of the competitive bidding, such
as but not limited to: an eligible contractor not buying bid documents or not
complying with the requirements during bid evaluation, and contractors
habitually withdrawing from bidding or submitting letters of non-participation for
at least three (3) times within a year, except for valid reasons.
In addition to the penalty of suspension, the bid security posted by the concerned
bidder or prospective bidder shall also be forfeited.
4.2
Contract Implementation Stage
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
suspension for one (1) year for the first offense, suspension 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:
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.
ii.
iii.
iv.
v.
Employment of competent technical personnel, competent
engineers and/or work supervisors;
Provision of warning signs and barricades in accordance with
approved plans and specifications and contract provisions;
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;
Deployment of committed equipment, facilities, support staff and
manpower; and
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.
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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.
ii.
iii.
iv.
Defective design resulting in substantial corrective works in design
and/or construction;
Failure to deliver critical outputs due to consultant’s fault or
negligence; and
Specifying materials which are inappropriate, substandard, or way
above acceptable standards.
Allowing defective workmanship or works by the contractor being
supervised by the consultant.
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:
i.
ii.
Negative slippage of 15% and above within the critical path of the
project due entirely to the fault or negligence of the contractor; and
Quality of materials and workmanship not complying with the
approved specifications arising from the contractor's fault or
negligence.
g) 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.
In addition to the penalty of suspension, the performance security posted by
the contractor shall also be forfeited.
5. PROCEDURE FOR SUSPENSION AND BLACKLISTING DURING THE COMPETITIVE
BIDDING STAGE
5.1
Initiation of Action
Any bidder/prospective bidder or duly authorized observer may initiate the
suspension and blacklisting proceedings by filing a written complaint with the Bids
and Awards Committee (“BAC”). The BAC may also motu proprio (by itself)
commence the proceedings upon prima facie (self-sufficient) determination that the
contractor as a bidder or prospective bidder has committed any of the grounds for
blacklisting during the competitive bidding stage.
At the option of the procuring entities, a reasonable fee may be required for
initiating the suspension and blacklisting proceedings.
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5.2
Notification
Upon verification of the existence of grounds for blacklisting, the BAC shall
immediately notify the contractor concerned in writing, advising him that:
a) a complaint for suspension and blacklisting has been filed against him, or he
has been considered by the BAC for suspension and blacklisting, stating the
grounds for such;
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.
5.3
Hearings
If a hearing is requested, the BAC shall immediately set the date and time for
hearing. The hearing shall be non-litiguous and shall be terminated within five (5)
days.
The BAC may also invite a representative from a duly recognized private group in a
sector or discipline relevant to the procurement at hand as an observer for each
hearing.
If no request is made, the BAC shall make a determination of the case based on
the complaint, answer, documentary evidence submitted and facts verified. If the
BAC is convinced that the contractor is at fault, it shall issue a resolution
recommending to the head of the agency the suspension of the contractor from
participating in any bidding process of the agency and the forfeiture of his bid
security.
5.4
Decision
The Head of the Procuring Entity shall, within fifteen (15) days from receipt of the
resolution and the records of the BAC proceedings, determine whether reasonable
cause exists for the suspension of the contractor and the forfeiture of the latter’s
bid security. If the Head of the Procuring Entity determines that such reasonable
cause exists, he shall issue a decision suspending the contractor from participating
in any bidding process of the agency, and further declaring that his bid security is
forfeited. Otherwise, he shall dismiss the case.
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The decision shall clearly and distinctly state the facts, evidence and the law on which
it is based, as well as the date of effectivity of the penalty, if any.
The Head of the Procuring Entity may delegate to the BAC the authority to impose
the corresponding sanction(s) provided for in these guidelines.
In case a contractor commits more than one offense or a combination of offenses for
the same project/contract in a particular agency, each violation shall be meted the
corresponding penalty.
5.5
Notice of Decision
The Head of the Procuring Entity shall furnish the suspended contractor a copy of the
decision immediately from its promulgation.
5.6
Effect of Decision
A contractor is suspended upon receipt of the notice of decision prohibiting him
from participating in the bidding process of the agency. The suspension shall
remain in effect during the period of motion for reconsideration and protest and
shall terminate only upon a reversal of the decision by the Head of the Procuring
Entity or appellate authority.
If no motion for reconsideration or protest is filed, the decision shall become final
and executory after the lapse of seven (7) calendar days from the receipt of the
notice of decision. Thereafter, the Head of Procuring Entity shall issue a
Blacklisting Order disqualifying the erring contractor from participating in the
bidding of all government projects.
5.7
Motion for Reconsideration
A Motion for Reconsideration may be filed by the suspended person/entity within
seven (7) calendar days from receipt of the notice of decision and shall be for either
or both of the following causes, provided that only one (1) Motion for Reconsideration
shall be filed with the blacklisting agency:
a)
The decision is not in conformity with the evidence and/or facts presented; and
b)
Newly discovered evidence or facts which could not be discovered and
produced at the investigation and which when presented would probably alter
the result of the investigation.
The Head of the Procuring Entity shall resolve with finality the motion for
reconsideration within fifteen (15) calendar days from the filing thereof and furnish
suspended contractor a copy of the resolution immediately from its promulgation.
5.8
Protest from Decision
A protest may be filed under Section 55.1 of the IRR-A of R.A. 9184 by the
suspended contractor with the appellate authority within seven (7) calendar days
from receipt of the resolution on the Motion for Reconsideration.
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5.9
Finality of Decision
The decision of the agency shall become final and executory after the lapse of
seven (7) calendar days from the receipt of the notice of decision or resolution on
the motion for reconsideration. If a protest is filed, the affirmed, modified or
reversed decision shall become final and executory upon receipt thereof by the
agency and person/entity concerned.
Upon finality of the decision suspending the contractor, the Head of Procuring Entity
or appellate authority shall issue a Blacklisting Order disqualifying the erring
contractor from participating in the bidding of all government projects.
6. PROCEDURE FOR BLACKLISTING DURING THE CONTRACT IMPLEMENTATION
STAGE
Upon termination of contract due to default of the contractor, the Head of the Procuring
Entity shall immediately issue a Blacklisting Order disqualifying the erring contractor from
participating in the bidding of all government projects. The performance security of said
contractor shall also be forfeited.
7.
STATUS OF BLACKLISTED PERSON/ENTITY
Before the issuance of a Blacklisting Order, the erring contractor may participate in the
procurement of any government project except in the agency where he is suspended. But if
Blacklisting Order is issued prior to the date of the notice of award (“NOA”), the blacklisted
person/entity shall not be qualified for award and such project/contract shall be awarded to
another bidder pursuant to R.A. 9184 and its IRR-A.
If the Blacklisting Order is issued after award of a government project/contract to the
blacklisted person/entity, the awarded project/contract shall not be prejudiced by the said
order: Provided, however, that the said offense(s) committed by the blacklisted person/entity
is/are not connected with the awarded project/contract.
8.
DELISTING
8.1
9.
A blacklisted person/entity shall be automatically delisted after the period for the
penalty shall have elapsed, unless the blacklisting agency requests the GPPB to
maintain the blacklisted person/entity in the GPPB Consolidated Blacklisting Report
due to justifiable reasons. In the latter case, the blacklisted person/entity shall be
delisted only upon the backlisting agency’s issuance of a Delisting Order.
METHODOLOGY FOR NOTIFICATION TO THE GPPB
9.1.
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:
a)
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
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project/contract and location/amount, specific ground(s)/offense(s) committed as
provided in Section 4 hereof, sanction imposed and its date of start and
completion, date of issuance of the order to blacklist, and other conditions which
can extend duration of sanctions in Sections 4 hereof.
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.
9.2
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. The GPPB shall delist from
such report those whose sanctions are lifted automatically after serving the given
penalty as provided for in Section 8.1 hereof and those whose sanctions are lifted
through the issuance of Delisting Orders.
9.3
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.
9.4
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-A, are hereby adopted and made part of
the GPPB Consolidated Blacklisting Report upon the issuance of these guidelines.
10. AMENDMENTS
10.1
10.2
11.
In the implementation of these guidelines, the GPPB may introduce modifications
thereto through the amendment of its specific provisions as the need arises.
Any amendment to these guidelines shall be applicable to government projects
advertised for bid after the effectivity of the said amendment
EFFECTIVITY
These Guidelines or any amendments thereof shall take effect immediately after
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 copies of
these guidelines.
