Section 9Sec./Art. 9

Solicited Proposals. -

(a) General - Solicited proposals refer to submissions by the Private Proponent in response to a public bidding process initiated by the Implementing Agency. Government Undertakings are allowed, subject to the approval of the appropriate Approving Body.

(b) Public Bidding - The public bidding may be conducted in a single-stage or two-stage bidding process, as proposed by the Implementing Agency, and approved by the appropriate Approving Body. Single-stage bidding process is characterized by a simultaneous submission of qualification requirements and bid proposals of Private Proponents. Two-stage bidding process is characterized by a separate submission of qualification requirements and bid proposals of Private Proponents.

The public bidding may be conducted either manually or electronically, as may be determined by the Implementing Agency: Provided, That the posting of invitation to pre-qualify and bid shall be through the official website of the Implementing Agency and/or the PPP Center with the objective of promoting competition.

The PPP contract shall be awarded to the bidder who has satisfied all pre-qualification and eligibility requirements and has submitted the most-responsive bid to bid parameter proposed by the Implementing Agency and set forth in the PTCs approved by the appropriate Approving Body.

If the winning bidder fails to comply with any post-award requirement which shall be set as part of the bidding documents, or fails to enter into a PPP contract with the Implementing Agency, the latter shall award the PPP contract to the next most responsive bidder. In case the PPP contract is awarded to the next most responsive bidder, the Implementing Agency, without prejudice to the remedies provided by law, can forfeit the bid security, withdraw the award, or pursue any other remedies allowed under existing rules and regulations, against the winning bidder who failed to comply with any post-ward requirements, or who failed to enter in a PPP contract.

All PPP contracts shall require a period within which Financial Close shall be achieved by the Private Partner. Failure to achieve Financial Close within such period, without the fault of the government, shall subject the Private Partner to penalties under the signed PPP contract.

Any substitution in the commission of the pre-qualified Private Proponent shall be allowed prior to bid submission: Provided, That the substitute has equal or better qualifications.

(c) Failure of Bidding - The PBAC shall declare failure of bidding in case:

(1) No bids are received; or

(2) There are no complying bids.

The PBAC may also declare a failure of bidding in case the winning bidder refuses, without justifiable cause, to accept the award of PPP contract.

The Head of the Implementing Agency, upon the recommendation of the PBAC, may also declare a failure of bidding if, after advertisement, only one bidder applied for and met the pre-qualification requirements, unless otherwise provided in this Code.

(d) Single Complying Bid - Without prejudice to paragraph (a) of this section, the Implementing Agency may consider, on a negotiated basis, a single complying and responsive bid if:

(1) After advertisement, more than one bidder applied for pre-qualification but only met the pre-qualification requirements;

(2) After advertisement, only one bidder applied for and met the pre-qualification requirements, provided such was allowed by Head of the Implementing Agency, upon recommendation of the PBAC;

(3) After pre-qualification of more than one bidder, only one submitted a bid; or

(4) After pre-qualification, more than one bidder submitted bids but only one is found by the Implementing Agency to be complying.

Negotiation between the Implementing Agency and the single complying and responsive bidder shall be limited to the financial proposal of the bidder and in compliance with the Reasonable Rate of Return prescribed by the appropriate Approving Body.