See -
https://www.facebook.com/attymannylasernajr/posts/1571668476252836
https://www.facebook.com/lcmlawlaspinascity/
"x x x.
Read -
"2007-03-08
NPM 004-2007
Requesting Entity: Department of Social Welfare and Development
Issues Concern: Swiss Challenge
Whether procuring entities may adopt the Swiss Challenge system in its procurement transactions.
[T]he Swiss Challenge system is more appropriately applied outside the framework of a competitive public bidding. It is initiated by an unsolicited proposal or when the original proponent makes an offer to the government without any formal or informal request from the former. To ensure that the original proponent's scheme is superior, third parties are allowed to challenge said scheme during a designated period. The original party then gets the right to counter-match any superior offers given by the third party.
R.A. 9184 and its IRR-A do not legally sanction the adoption and use of the Swiss Challenge system. We believe that R.A. 9184 does not prescribe this system since the conduct of public bidding already ensures that the lowest complying and responsive bid or the highest rated and responsive bid, as the case may be, is the most favorable bid to the government. Adoption of the Swiss Challenge system after conduct of public bidding may thus be considered redundant.
x x x."
See -
1. http://www.gppb.gov.ph/opinions/view_nonpolicy.php?id=379
[GPPB Non-Policy Opinions]
Addenda:
1. http://www.gppb.gov.ph/issuances/Resolutions/06-2014.pdf
"x x x.
Read -
"2007-03-08
NPM 004-2007
Requesting Entity: Department of Social Welfare and Development
Issues Concern: Swiss Challenge
Whether procuring entities may adopt the Swiss Challenge system in its procurement transactions.
[T]he Swiss Challenge system is more appropriately applied outside the framework of a competitive public bidding. It is initiated by an unsolicited proposal or when the original proponent makes an offer to the government without any formal or informal request from the former. To ensure that the original proponent's scheme is superior, third parties are allowed to challenge said scheme during a designated period. The original party then gets the right to counter-match any superior offers given by the third party.
R.A. 9184 and its IRR-A do not legally sanction the adoption and use of the Swiss Challenge system. We believe that R.A. 9184 does not prescribe this system since the conduct of public bidding already ensures that the lowest complying and responsive bid or the highest rated and responsive bid, as the case may be, is the most favorable bid to the government. Adoption of the Swiss Challenge system after conduct of public bidding may thus be considered redundant.
x x x."
See -
1. http://www.gppb.gov.ph/opinions/view_nonpolicy.php?id=379
[GPPB Non-Policy Opinions]
Addenda:
1. http://www.gppb.gov.ph/issuances/Resolutions/06-2014.pdf
[GPPB RESOLUTION NO. 06-2014 - ADOPTING AN OFFICIAL POSITION RELATIVE TO THE PROPOSED AMENDMENT OF REPUBLIC ACT (RA) NO. 9184 THROUGH SENATE BILL NO. 1653, RECOGNIZING SWISS CHALLENGE OR PRICE MATCHING SCHEME IN GOVERNMENT PROJECTS NOT COVERED BY RA 6957, AS AMENDED BY RA 7718].
2. http://newsinfo.inquirer.net/…/duterte-no-more-public-biddi….
["Duterte: No more public bidding on big projects"
By: Allan Nawal, Frinston Lim - @inquirerdotnet Philippine Daily Inquirer / 07:07 AM January 28, 2018]
3. http://www.gppb.gov.ph/…/…/Resolution%20No.%2019.%202016.pdf.
["The rules or guidelines in the conduct of Competitive Challenge or Swiss Challenge modality should be laid down, since this method is not prescribed under RA 9184 and its IRR. There should be clarity whether Swiss Challenge will be adopted as an alternative method of procurement under RA 9184, since it would not be practical for public procurement under RA 9184 and its IRR. This is because of the requirement for procuring entities to identify projects in its Project Procurement Management Plan and Annual Procurement Plan. Further, this is a new concept which is yet to be introduced in the public procurement system of the country, that may pose challenges in the established norms of our procurement processes. The proposed Swiss Challenge will be appropriately covered or governed by RA 7718 or the BOT Law and not RA No. 9184."].
4. https://www.senate.gov.ph/…/PB%202008-05%20-%20Plugging%20t…
["C. Procurement and the BOT law
The BOT scheme has been employed by government to finance critical facilities in power, road and rail transport among others, in the face of severe government budget constraints.
The weaknesses in the BOT Law, however, make the procurement system prone to corruption and scams. Most of the procured infrastructure projects that were marred with controversies in the Philippines were “unsolicited proposals.”
Under the BOT law, unsolicited proposals are subject to Swiss challenge, a method used to ensure that the government gets the best possible deal.
Under the scheme, the government invites competitors to improve on the deal offered by the original proponent. The original proponent would then get the right to win the deal by merely matching any better terms offered by his competitors ‐‐ a right he holds by virtue of having proposed a project that the government had not thought of by itself.
Some big‐ticket projects that have undergone a Swiss challenge included the Argentine firm IMPSA’s Caliraya‐Botocan‐Kalayaan power plant, the Philippine International Air, Terminal Company’s. (PIATCo) NAIA Terminal 3 and the Universal MRT Corporation’s MRT‐7 line.
In the case of the NBN project, however, Amsterdam Holdings Inc. (AHI) owned by Jose de Venecia III, which claimed to be the original proponent of the project, never even got to the Swiss challenge phase. In early 2007, AHI officials complained to the Department of Transportation and Communications (DOTC) that its proposal for a build‐operate‐own (BOO) project ‐‐ a subtype of the BOT scheme ‐‐ had been ignored while it awarded the very same project to China's ZTE Corporation shortly after. ZTE's proposal was to be funded by a US$329‐million government‐to‐government loan, which did not go through a competitive selection process, with both the supplier and creditor having been chosen by the Chinese government.
DOTC officials explained that owing to the sensitivity of the government information the project would handle, they decided to do it on a Government to Government transaction as against the initial plan of a BOT scheme.
Furthermore, the project cost went up from US$262 million to US$329 million because its coverage was expanded from only the 1st to 3rd class municipalities to that including the 6th class municipalities. "].
5. Section 4-A, Republic Act No. 6957, as amended. - A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. x x x Some Swiss challenges also allow the entity which submitted the unsolicited bid itself then to match or better the best bid which comes out of the Swiss challenge process. It is a form of regulating public procurement. http://en.wikipedia.org/wiki/Swiss_challenge.
6. "ROLEX SUPLICO, Petitioner, versus NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, et. al.", G.R. No. 178830, July 14, 2008; DISSENTING OPINION by CARPIO, J.:
"Even in a Build-Operate-Transfer project where the proponent provides all the capital with no government guarantee on project loans, the law requires public bidding in the form of a Swiss challenge.[46] With more reason should a project financed by a tied loan to the government be subject to public bidding. There is no sound reason why the Philippine government should allow its foreign creditor in an already tied loan to handpick the supplier of goods and services."
7. http://www.neda.gov.ph/wp-cont…/…/2013/12/IRR-of-RA-9184.pdf
[GPPB Resolution No.03-2009, dated 22 July 2009. - APPROVING THE REVISED IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184].
x x x."
2. http://newsinfo.inquirer.net/…/duterte-no-more-public-biddi….
["Duterte: No more public bidding on big projects"
By: Allan Nawal, Frinston Lim - @inquirerdotnet Philippine Daily Inquirer / 07:07 AM January 28, 2018]
3. http://www.gppb.gov.ph/…/…/Resolution%20No.%2019.%202016.pdf.
["The rules or guidelines in the conduct of Competitive Challenge or Swiss Challenge modality should be laid down, since this method is not prescribed under RA 9184 and its IRR. There should be clarity whether Swiss Challenge will be adopted as an alternative method of procurement under RA 9184, since it would not be practical for public procurement under RA 9184 and its IRR. This is because of the requirement for procuring entities to identify projects in its Project Procurement Management Plan and Annual Procurement Plan. Further, this is a new concept which is yet to be introduced in the public procurement system of the country, that may pose challenges in the established norms of our procurement processes. The proposed Swiss Challenge will be appropriately covered or governed by RA 7718 or the BOT Law and not RA No. 9184."].
4. https://www.senate.gov.ph/…/PB%202008-05%20-%20Plugging%20t…
["C. Procurement and the BOT law
The BOT scheme has been employed by government to finance critical facilities in power, road and rail transport among others, in the face of severe government budget constraints.
The weaknesses in the BOT Law, however, make the procurement system prone to corruption and scams. Most of the procured infrastructure projects that were marred with controversies in the Philippines were “unsolicited proposals.”
Under the BOT law, unsolicited proposals are subject to Swiss challenge, a method used to ensure that the government gets the best possible deal.
Under the scheme, the government invites competitors to improve on the deal offered by the original proponent. The original proponent would then get the right to win the deal by merely matching any better terms offered by his competitors ‐‐ a right he holds by virtue of having proposed a project that the government had not thought of by itself.
Some big‐ticket projects that have undergone a Swiss challenge included the Argentine firm IMPSA’s Caliraya‐Botocan‐Kalayaan power plant, the Philippine International Air, Terminal Company’s. (PIATCo) NAIA Terminal 3 and the Universal MRT Corporation’s MRT‐7 line.
In the case of the NBN project, however, Amsterdam Holdings Inc. (AHI) owned by Jose de Venecia III, which claimed to be the original proponent of the project, never even got to the Swiss challenge phase. In early 2007, AHI officials complained to the Department of Transportation and Communications (DOTC) that its proposal for a build‐operate‐own (BOO) project ‐‐ a subtype of the BOT scheme ‐‐ had been ignored while it awarded the very same project to China's ZTE Corporation shortly after. ZTE's proposal was to be funded by a US$329‐million government‐to‐government loan, which did not go through a competitive selection process, with both the supplier and creditor having been chosen by the Chinese government.
DOTC officials explained that owing to the sensitivity of the government information the project would handle, they decided to do it on a Government to Government transaction as against the initial plan of a BOT scheme.
Furthermore, the project cost went up from US$262 million to US$329 million because its coverage was expanded from only the 1st to 3rd class municipalities to that including the 6th class municipalities. "].
5. Section 4-A, Republic Act No. 6957, as amended. - A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. x x x Some Swiss challenges also allow the entity which submitted the unsolicited bid itself then to match or better the best bid which comes out of the Swiss challenge process. It is a form of regulating public procurement. http://en.wikipedia.org/wiki/Swiss_challenge.
6. "ROLEX SUPLICO, Petitioner, versus NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, et. al.", G.R. No. 178830, July 14, 2008; DISSENTING OPINION by CARPIO, J.:
"Even in a Build-Operate-Transfer project where the proponent provides all the capital with no government guarantee on project loans, the law requires public bidding in the form of a Swiss challenge.[46] With more reason should a project financed by a tied loan to the government be subject to public bidding. There is no sound reason why the Philippine government should allow its foreign creditor in an already tied loan to handpick the supplier of goods and services."
7. http://www.neda.gov.ph/wp-cont…/…/2013/12/IRR-of-RA-9184.pdf
[GPPB Resolution No.03-2009, dated 22 July 2009. - APPROVING THE REVISED IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 9184].
x x x."
