Query No. Topic Name of Document and Query/Comment ...dotr.gov.ph/images/PPP/2015/P17BDavaoSasaPortMP/... · Query/Comment Proposed Redraft (if any) ... Query/Comment Proposed Redraft

Query No. Topic Name of Document and

Section # of Document

Query/Comment Proposed Redraft (if any) Response

corporation and, in such case,

the notary public retains the

original of the corporate

documents so notarized,

please confirm our

understanding that an original

affidavit or document issued

by the notary public setting

forth the relevant details of a

corporation (including details

typically found under the

General Information Sheet,

Articles of Incorporation and

By-Laws under Philippine

law), which original affidavit

or document is authenticated

by the Philippine embassy or

consular official, sufficiently

complies with the provisions

of Section 5.4.d vis-à-vis

Annex QD-3.

and notarized, and thereafter

authenticated by a Philippine

consular or embassy official.

38 Language and

Foreign

Documents/

Authentication

Requirement

Section 3.6.f Section 3.6.f provides that for

purposes of the Pre-

Qualification, the PBAC will

accept photocopies of: (a)

notarized and unauthenticated

/ unconsularized

documents/certifications that

are required to be

authenticated by the relevant

Philippine consular official in

Section 3.6.b; and (b) certified

true copies and

We propose that Section 3.6.f

be revised to read as follows:

For each instance in the ITPB

where authentication by a

Philippine consular official is

required, for purposes of the

Pre-Qualification only, the

PBAC will accept photocopies

of: (a) unnotarizednotarized

and

unauthenticated/unconsularized

Request is denied, but please

note Query Nos. 18 and 19.




unauthenticated /

unconsularized


are required to be

authenticated by the relevant


Sections 3.6.c and 3.6.d.

Please note that notarization of

documents in other

jurisdictions is a governmental

function and/or is beyond the

control of the party executing

the document, and thus, may

be tedious and time-

consuming. In this regard, we

request that for purposes of

Pre-Qualification, the PBAC

will accept photocopies of the

unnotarized and

unauthenticated/

unconsularized documents/

certifications subject to the

submission on Bid Proposals

Submission Date of the

original notarized and

authenticated/ consularized

document/ certification.


are required to be authenticated

by the relevant Philippine

consular official in Section

3.6.b above; and (b)

unnotarized certified true

copies and

unauthenticated/unconsularized


are required to be authenticated

by the relevant Philippine

consular official in Sections

3.6.c and 3.6.d above; on the

Qualification Documents

Submission Date, subject to the

submission on the Bid

Proposals Submission Date of

identical documents in original

form duly notarized or

certified, as the case may be,

and authenticated before a


Section 3.6.b above.

39 ISO 9001 and

14001

Certifications for

Technical

Section 4.2.a The ITPB provides that for the

ISO 9001 and 14001

certifications for the Technical

Qualification Requirements,

We propose the addition of this

last paragraph in Section 4.2.a:

For the aforementioned ISO

The fulfillment of the

following two items will be

considered as equivalent of




Qualification

Requirements

namely, the Design and

Development Experience,

Operations and Maintenance

Experience, Systems,

Signaling and Telecom

Experience and Rolling Stock

Experience Requirements, an

equivalent certification would

be a notarized certification

issued by a competent

regulatory authority stating

that: (a) it is the regulatory

authority in the country where

the entity proposed to meet the

relevant Technical

Qualification Requirement

was registered for creation or

recognition of its juridical

personality or capacity and it

has jurisdiction over such

entity; (b) the laws in such

country do not require entities

like the entity proposed to

meet the relevant Technical

Qualification Requirement to

secure such ISO certifications;

(c) the entity proposed to meet

the relevant Technical

Qualification Requirement is

compliant with the relevant

policies, procedures and

programs required by

applicable laws, rules and

9001 and 14001 certifications,

and in case there is no

regulatory authority competent

to issue the certification, the

authorized representative of the

entity proposed to meet the DD

Experience, O&M Experience,

S Systems, Signaling and

Telecom Experience and

Rolling Stock Experience may

submit a notarized certification

stating that:

(i) there is no centralized

regulatory authority in

the country where the

entity proposed to

meet the [relevant

Technical

Qualification

Requirement] was

registered for creation

or recognition of its

juridical personality or

capacity that is in the

position to assess

quality management

standards;

(ii) the laws in such

country do not require

entities like the entity

proposed to meet the

[relevant Technical

the ISO certification:

- The authorized

representative of the

entity proposed to

meet the DD

Experience, O&M

Experience,

Systems, Signaling

and Telecom

Experience and

Rolling Stock

Experience may

submit a notarized

certification stating

that the entity

proposed to meet

the relevant

Technical

Qualification

Requirement has in

place internal

procedures and

processes

equivalent to those

required under the

ISO 9000

certification or ISO

14001 certification.

- The relevant entity

must provide a

notarized document

describing the

entity’s internal




regulations of such country;

and (d) the entity proposed to

meet the relevant Technical

Qualification Requirement has

in place internal procedures

and processes substantially

equivalent to those required

under the ISO 9001 and ISO

14001 certifications.

It is possible that in other

jurisdictions, there is no

centralized regulatory

authority which can issue the

certification or which is

competent to attest to the

foregoing. In this regard,

please provide/clarify what

other certification or document

will be accepted or considered

as an equivalent of the ISO

certification.

Qualification

Requirement] to

secure such ISO

certification;

(iii) the entity proposed to

meet the [relevant

Technical

Qualification

Requirement] is

compliant with the

relevant policies,

procedures and

programs required by

applicable laws, rules

and regulations of

such country; and

(iv) the entity proposed to

meet the [relevant

Technical

Qualification

Requirement] has in

place internal

procedures and

processes equivalent

to those required

under the ISO 9000

certification or ISO

14001 certification.

procedures that are

claimed to be

equivalent and

compliant to what is

required under ISO

9001 and 14001.

Furthermore, the option to

submit equivalent

documentation in lieu of an

ISO certification or a

certification from a

regulatory authority is

available to all prospective

bidders.

E. QUERIES ON TECHNICAL QUALIFICATION REQUIREMENTS




40 Technical

Qualification

Requirements

ITPB, Section 4.2.a.(1)

(Qualification

Requirements) in

relation to Section 3.6.f

(Language and Foreign

Documents)

Please confirm that, where the

current ISO 9001 certification

and ISO 14001 certification

are due to expire but the entity

has already completed the

recertification process (except

that the actual issuance of the

certificates takes longer due to

administrative bureaucracy

outside of the control of the

entity, it would be sufficient,

for purposes of pre-

qualification, to submit (i) the

previous ISO 9001 and 14001

certifications, together with (ii)

an attestation/certification

from the certifying entity that

the entity has completed the

recertification and has been

recommended for certification.

The request is granted.

However, reissued final

certificates should be

presented prior to bid

submission.

41 Design and

Development DD

Experience


(Qualification

Requirements)

One of the requirements for

entities whose completed

projects are being submitted to

fulfill items (a) and/or (b) of

the DD experience is a valid

license issued by the PCAB

for Large B

Classification/License

Category AAA, in the case of

a Filipino entity, or by an

equivalent accreditation

Confirmed.




institution in the entity’s

country of origin, in the case

of a foreign entity.

We note that in some foreign

countries, there is no

accreditation institution

equivalent to PCAB. In such

cases, consistent with the

requirements in other PPP

projects, please confirm that

the foreign entity can instead

submit a certification from an

authorized representative of

the entity certifying that (a)

there is no accreditation

institution and/or

accreditation/licensing system

in the entity’s country of

origin that is equivalent to the

PCAB or the

accreditation/licensing system

established under the

Philippine Republic Act no.

4566 (Contractor’s License

Law); and (b) the entity

nevertheless meets the

qualifications for securing a

PCAB License for Large B

Classification/License

Category AAA. Also to be

included in the certification is

an undertaking that the entity




will obtain the required PCAB

license and accreditation

should the Prospective Bidder

be declared the winning

bidder.

42 Design and

Development DD

Experience


(Qualification

Requirements)

The subject provision provides

in part that the entity or



fulfill the DD Experience

requirements must submit a

statement under oath of its

willingness to participate in,

and capacity to undertake, the

requirements of the Project,

and commitment to enter into

an agreement with the

Concessionaire to undertake

their respective parts of the

Project. Please confirm that

the projects to be submitted

may pertain to projects which

are still ongoing but the

component of the project

which fulfills the DD

experience has already been

completed.

Confirmed. However, for

components of the project

that are being submitted to

fulfill the DD experience,

their certifications must be

able to establish compliance

with ITPB requirements.

43 Railway

Operations and

Maintenance

(O&M)

Experience


(Qualification

Requirements)


in part that “the entity or



fulfill the Commuter Rail and

Long Haul Rail O&M

Confirmed. The submitted

O&M experience may be

from an ongoing project as

long as the component

fulfills the relevant

requirements of the ITPB,




Experience must submit a

statement under oath of its

willingness to participate in,

and capacity to undertake, the

requirements of the Project,

and commitment to enter into

an agreement with the

Concessionaire to undertake

the operation and maintenance

of the Project or to provide

technical support to the

Concessionaire in the

operation and maintenance

should the Concessionaire

decide to operate the railway

itself…”

Please confirm that the

projects to be submitted may

pertain to projects which are

still ongoing but the

component of the project

which fulfills the O&M

experience has already been

completed.

and as stated in ITPB Section

4.2.a.(2), the experience

should be from “at least

three (3) consecutive years

over the last seven (7)

years”.

44 Systems,

Signaling and

Telecom

Experience


(Qualification

Requirements)


in part that “the entity or



fulfill the Systems, Signaling,

and Telecom Experience

requirements must also

possess and certify that they

Confirmed. The submitted

Systems, Signaling and

Telecom experience may be

from an ongoing project and

the component of the project

which fulfills the experience

has been completed and

meets the relevant




have the following…” Please

confirm that the projects to be

submitted may pertain to

projects which are still

ongoing but the component of

the project which fulfills the

Systems, Signaling and

Telecom experience has

already been completed.

requirements of the ITPB.

45 Qualified Key

Personnel

ITPB, Section 4.2.b

(Qualification

Requirements)

This section provides that

“[t]he Prospective Bidder, the

Consortium Members and

Contractors, whose projects

are being submitted to meet

the Technical Requirements,

must have, among their

personnel, individuals with the

following required

qualifications and

experience…”

In order to meet the

qualifications set out in

Section 4.2.b, “…a

Prospective Bidder must

propose persons who are

employed or engaged,

including external experts by

the Prospective Bidder itself, a

Consortium Member or any of

their proposed Contactors or

Affiliates.”

In this regard, please confirm

Please consider revising

Section 4.2.b to read as

follows:

“The Prospective Bidder, the

Consortium Members

andContractors, or any of the

Affiliates of the foregoing

whose projects are being

submitted to meet the

Technical Requirements,

must have, among their

personnel, individuals with

the following required

qualifications and experience:

… Prospective Bidder must

propose persons who are

employed or engaged,

including external experts by

the Prospective Bidder itself,

a Consortium Member or any

of their proposed Contactors

or their Affiliate.”

Item (i) of the query is

confirmed.

With respect to item (ii) of

the query, nominated

personnel need not be

employed but must have an

existing contractual

relationship with the

Prospective Bidder, the

Consortium Members,

Contractors or any of the

Affiliates of the foregoing.

Item (iii) of the query is

confirmed.

The proposed redraft is

adopted with the following

modification:

The Prospective Bidder, the

Consortium Members, their

proposed Contractors, or any




that:

(i) any (and not all) of the

Prospective Bidder,

Consortium Members,

Contractors or their

Affiliate whose projects

are being submitted in

fulfillment of the

Technical Qualification

Requirements may

provide key personnel

with the required

minimum experience

and qualification, such

that the submission of

one personnel that

complies with the

operations and

maintenance experience

and qualification and

one personnel that

complies with the

financial management

experience and

qualification is

sufficient compliance

with the requirement;

(ii) the nominated personnel

are not required to be

currently employed with

the Prospective Bidder,

Consortium Member,

of the Affiliates of the

foregoing whose projects are

being submitted to meet the

Technical Qualifications

Requirements, must have,

among their personnel,

individuals with the

following required

qualifications and

experience.




Contractor or their

Affiliate (as the case

may be); and

(iii) the nominated personnel

may be a contractor or a

consultant of the

Prospective Bidder,

Consortium Member,

Contractor or their

Affiliate (as the case

may be).

46 Financial

Capability

Qualification;

Annex QD-14

ITPB, Sections 4.2.a.(1),

4.3.a and 4.3.b

(Qualification

Requirements); Annex

QD-14

Please provide the applicable

Bangko Sentral ng Pilipinas

Exchange rate for the purpose

of converting values in other

currencies to Philippine Peso

in relation to determining the

unrestricted net worth of the

entity fulfilling the Financial

Capability Qualification.

It would be the reference

exchange rate for the date of

the document showing the

unrestricted net worth, as

published by the Bangko

Sentral ng Pilipinas.

47 Submission of

Annex QD-14

Annex QD-14 Please confirm our

understanding that the entity

nominated by the prospective

Bidder to satisfy either the At-

Grade DD Experience or the

Viaduct DD Experience is

required to submit Annex QD-

14 (Notarized Statement of

Financial Capability) but is not

required to submit as an

attachment the Bank Letter

Testimonial as said attachment

is required only for entities

Confirmed.




that will fulfill the Financial

Capability Qualification

Requirement.

48 Key Personnel Section 4.2.b Under Section 4.2.b, the Key

Personnel are required to be

employed or engaged by the

Prospective Bidder itself, a


their proposed Contractors or

Affiliates.

There appears to be no

requirement under the ITPB

that the experience must have

been obtained/fulfilled by the

Key Personnel while


Prospective Bidder itself,


their proposed Contractors or

Affiliates.

In this regard, please confirm

our understanding that a Key

Personnel is qualified even if

the required experience was

not obtained or undertaken or

performed by him/her while




their proposed Contractors.

Otherwise stated, the Key

Confirmed. Key Personnel

are qualified even if the

required experience was not

obtained or undertaken or

performed by him/her while



Consortium Member or any

of their proposed

Contractors.




Personnel must be employed

or engaged by the Prospective

Bidder itself, Consortium

Member or any of their

proposed Contractors at the

Pre-Qualification Documents

Submission Date even if the

required experience was

obtained or performed under a

previous/former/another

employer or a different entity

which is not involved in the

bid or in this project.

49 DD Experience –

(c) Design and

Engineering

Section 4.2.a.1 May an entity proposed to

meet the DD Experience

requirements of either sub-

category (c)(i) and (c)(ii) use

its experience in two separate

projects, wherein it performed

“detailed design” in one

project and “construction

inspection” in another project?

The request is denied.

Detailed design and

construction inspection

should come from the same

project.

50 At-Grade Rail

DD Experience

Section 4.2.a.1 Please confirm our

understanding that the term

“single” that qualifies the tem

“railway” in the definition of

At-Grade Rail DD Experience

refers to single railway

project, and does not refer to

a single track railway vis-à-

vis a double track railway.

Some of our potential

The term “single railway”

refers to a single railway

project. However, please

refer to SBB No. 03-2015 for

revised wording for this

section and removal of the

word “single”.

See Section 4.2.a.1 below as

revised by SBB No. 03-

2015:




contractors to meet the At-

Grade DD Experience have

experience in the construction

of a double track railways

while others have experience

in construction of single track

railways. Kindly confirm that

the construction and

commissioning of a single

railway project, whether

single track or double track,

that is at least 60 km in length

will satisfy the At-Grade DD

Experience requirement.

1. Design and

Development (DD)

Experience

The Prospective Bidder

must, within the past fifteen

(15) years reckoned from the


Submission Date, have local

or international experience in

all of the following

(collectively, the “DD

Experience”):

(a) At-Grade Rail –

completing and

implementing the design,

construction and

commissioning of a single up

to two passenger railway

systems of a combined total

length of at least sixty (60)

km in length (“At-Grade Rail

DD Experience”);

(b) Viaduct –

completing and

implementing the design,

construction and

commissioning of an

elevated viaduct of at least

five (5) km in length

(“Viaduct DD Experience”);

and




(c) Design and

Engineering – (i) detailed

design and construction

inspection of at least a ten

(10) km commuter rail, of

which at least five (5) km is

elevated on viaduct; and (ii)

detailed design and

construction inspection of at

least a sixty (60) km

passenger railways, which

can be met cumulatively by

up to two passenger railway

systems.

51 At-Grade Rail

DD Experience,

Viaduct DD

Experience, and

Design and

Engineering

Experience

Section 4.2.a.1, 4.2.a.2,

and 4.2.a.3

Potential Contractors for the

At-Grade Rail DD Experience,

Viaduct DD Experience, and

Design and Engineering

Experience have participated

in similar projects as part of a

joint venture with other

entities.

In this regard, the activities or

scope of works of the joint

venture should be allowed to

be attributed in full to the

proposed Contractor as long as

the Contractor was either

involved in or responsible for

the works that fulfill the At-

Grade Rail DD Experience,

Viaduct DD Experience,

A prospective bidder may

nominate a joint venture or

consortium if such joint

venture or consortium

satisfies the criteria for an

"Affiliate" and if otherwise

permitted by the ITPB. The

BAC will evaluate the

submissions of potential

bidders, including such

bidder's technical

qualifications and attribution

to any Affiliate, based on the

guidelines set out in the

ITPB.




and/or Design and Engineering

Experience requirements.

52 Key Personnel -

Commuter Rail

Operations and

Maintenance

(“O&M”)

Specialist

Section 4.2.b Section 4.2.b of the ITPB

requires a Commuter Rail

O&M Specialist to have

experience in the O&M of a

metropolitan passenger

railway system.

Kindly confirm that a

proposed Key Personnel’s

experience in the O&M of

specific parts, portions or

systems (for example, the

signaling system, and the

passenger cars) of a railway

system fulfills the experience

required under Section 2.2.b of

the ITPB.

The individual should have

experience in all keys areas

of O&M but may be

specialized in specific

component. In other words,

they must have had

experience for all elements

of railway O&M.

53 Viaduct DD

Experience

ITPB, Section 4.2.a.1(c) Kindly confirm that the length

of the access ramps to an

elevated viaduct will be

considered as part of the total

length of the elevated viaduct

itself.

Confirmed.

54 Use of

Experience of

Affiliates

Section 4.2.a (as

amended)

Special Bid Bulletin No. 3-

2015 issued on 6 November

2015 clarified that entities

nominated to meet the


Requirements of the ITPB may

use the experience of their

Affiliates. In this regard:

1. If the nominated entity

will attribute the experience

of an affiliate to itself, the

affiliate does not need to

submit qualification

documents. If the affiliate is

proposed as a contractor, it

must submit qualification




1. Kindly confirm that (a)

entities nominated to meet

the Technical

Qualification

Requirements that will use

the experience of their

Affiliates are only

required to submit

evidence of their

affiliation, which will be

attached to QD-5, QD-7,

QD-9, or QD-11, as the

case may be and (b) the

Affiliates need not submit

any Qualification

Documents.

2. As in past PPP projects,

kindly confirm that a

certified true copy of the

general information sheet,

or its equivalent, as

mentioned in Section 5.4

of the ITPB is sufficient

evidence of affiliation.

documents.

2. Provided that the GIS

provides sufficient evidence

of affiliation, it can be

acceptable. If affiliation

cannot be clearly established

by GIS, you must submit

additional documents that

will establish affiliation.

55 Use of Affiliate

Experience

ITPB 4.2.a, SBB No. 3

Annex A

This sections states that “The

Prospective Bidder must meet

all of the following Technical

Qualification Requirements

through nominated entities or

Affiliate/s of such nominated

entities, as provided below.”

Kindly confirm that a

Nominated Contractor may

demonstrate its relationship

with an affiliate by submitting

a certificate of affiliation

signed by the relevant officer

or corporate secretary of the

Nominated Contractor and

Confirmed.




that of its affiliate entity/ies.

56 Clause 4.2.a.1 – DD

Experience

Under Addendum 2, it has

been stated that for experience

under sub-category (i) and (ii)

under category (c) Design and

Engineering, Affiliate

experience cannot be claimed.

Request Authority to allow

Affiliate experience under this

category.

Per SBB No. 03-2015,

Affiliates can now be used to

meet experience

requirements for each of the

3 categories of DD

experience.

The following was added

under the relevant section:

The Prospective Bidder must

meet all of the following


Requirements through

nominated entities or

Affiliate/s of such nominated

entities, as provided below.


Experience

Can DD consortium member

use the same project for

illustrating its experience

under categories (a), (b), and

(c)?

Yes.


Experience

For a specific project for

which experience is being

quoted under DD experience,

if the Rail is design and

constructed for both commuter

and passenger railway but

currently only cargo is plying

on that rail line, can the

experience for such Project be

considered for qualification

Yes.




purpose?

59 ISO 9001

Certificate (or its

equivalent)

Section 4.2.a (as

amended)

An entity proposed to meet a


Requirement must possess and

submit a valid ISO 9001

certification or its equivalent.

In light of Special Bid Bulletin

No. 3-2015 issued on

November 6, 2015, which

allows entities nominated to

meet Technical Qualification

Requirements to use the

experience of their Affiliates,

kindly confirm that an entity

nominated to meet a Technical

Qualification Requirement

may submit the ISO 9001

certification (or its equivalent)

of its Affiliate, whose projects

are being used to meet a

particular Technical

Qualification Requirement.

Due to the affiliation of the

entities, the ISO 9001

certification (or its equivalent)

of the Affiliate should be

acceptable. Please confirm if

our understanding is correct.

Confirmed.

60 At-Grade Rail

DD Experience

ITPB Section 4.2.a.1.a

and SBB No. 03 “(a) At-Grade Rail –

completing and implementing

the design, construction and

commissioning of up to two

passenger railway systems of a

“(a) At-Grade Rail –

completing and implementing

the design, construction and

commissioning of an At-

Grade railway with a total

The request is denied. We

cannot allow for unlimited

number of projects to meet

the 60-km requirement as




combined total length of at

least sixty (60) km (“At-

Grade Rail DD Experience”)

Can the requirement of the 60

km length of railway be

cumulative regardless of the

number of reference projects?

length of 60 km with at least

one project which has a

minimum at-grade length of

five (5) km (“At-Grade Rail

DD Experience”).”

For avoidance of doubt, the

nominated entity may submit

a number of reference

projects which will show a

total length of 60 km

completed design,

construction and

commissioning of an At-

Grade Railway provided that

one (1) project should at least

be a five (5) km At-Grade

Railway.

this would allow the

requirement to potentially be

met by many very small

projects which are not

indicative of the ability to

develop a long-haul rail of

the required length.

61 Rolling Stock ITPB Section 4.2.a.4 May we suggest that the

Rolling Stock Experience requirement be removed

because this requirement

implies a supply-centred

objective, which can be

decided after award of the

project as part of the

development responsibility of

the Bidder/Concessionaire

based on minimum

specifications to be provided

by the Grantors.

The request is denied. The

Rolling Stock Experience is

an important aspect of the

Concessionaire’s obligations.

F. QUERIES ON FINANCIAL REQUIREMENTS AND CONSORTIUM / EQUITY STRUCTURE




62 Financial

Member

Section 4.3 in relation to

Sections 1.26

We would like to confirm that

if the Prospective Bidder is a

Consortium and that two (2)

Financial Members are

nominated, only one of the

nominated Financial Members

(and not both) must have at

least 34% equity interest in the

Prospective Bidder.

To reiterate, Section 1.26

states that each Financial

Member must have an equity

interest in the Prospective

Bidder of not less than twenty

five percent (25%). On the

other hand, Section 4.3

provides that if the Prospective

Bidder is a Consortium, there

should be at least one

Financial Member with at

least thirty-four percent (34%)

equity interest in the

Consortium. The Financial

Member (or Financial

Members for equal shares)

with the largest equity interest

in the Consortium shall be

designated as the Lead

Member/s of the Consortium.

Confirmed. The minimum

requirement for each and any

Financial Member is an

equity interest of at least

25%. In a Consortium, there

should be at least one

Financial Member with at

least 34% equity interest.




For clarity, please confirm that

Section 4.3 does not mean that

where two (2) Financial

Members are nominated, both

must have thirty-four percent

(34%) equity interest in the

Consortium. Only one (1)

Financial Member must

comply with the 34% equity

interest and the other Financial

Member must have not less

than 25% equity interest in the

Prospective Bidder.

63 Bank Testimonial

Letter

Section 5.15.b(2) in

relation to Annex QD-15

1. Please confirm that the

banks or lender may

indicate in the testimonial

letter qualifications and

conditions relating to,

among others, the conduct

of due diligence,

compliance with

regulatory requirements

and satisfactions of terms

and conditions imposed

by the banks/lenders.

This has been permitted in

other PPP projects.

2. Please confirm that the

Prospective Bidder that is

a Consortium may submit

more than one testimonial

letters from various banks

and in the names of

1. We have revised the letter

in Annex QD-15 to address

this concern:

“In connection with the

participation of (name of

Bidder) in the Bidding

Process for the NSRP—

South Line Project (the

“Project”), we certify that, as

of the date of this letter,

[name of entity which fulfills

the Financial Capability

Qualification Requirement]

(the “Company”) is banking

with us, and is a client in

good financial standing. We

also certify that, subject to

the conduct of our internal

due diligence processes, and




various Financial

Members and/or their

Affiliates, provided that

the sum of the amounts

indicated in all the

testimonial letters

submitted by the

Consortium is at least

P50,000,000,000.00.

satisfaction of regulatory

requirements, that as of the

date of this letter, the

Company [is qualified to

obtain credit facilities of at

least Fifty Billion Philippine

Pesos

(PhP50,000,000,000.00) (or

state amount if less than

Fifty Billion Philippine

Pesos (insert numerical

value).”

2. Confirmed.

64 Bank Letter

Testimonial

Annex QD-15 Section 5.15.b(2) of the ITPB

requires the letter testimonial

to be in the form in Annex

QD-15. The banks we have

approached are hesitant to sign

Annex QD-15 as currently

worded and have proposed to

modify the form without

substantially changing the

content. To illustrate, some

banks have requested the

inclusion of the clause “that as

of the date hereof” in the

second sentence of the first

paragraph of Annex QD-15.

Please confirm that banks are

allowed to modify the

language of Annex QD-15 as

The specific request is

granted. The testimonial

letter in Annex QD-15 is

amended to read as follows:

“In connection with the

participation of (name of

Bidder) in the Bidding

Process for the NSRP—

South Line Project (the

“Project”), we certify that, as

of the date of this letter,

[name of entity which fulfills

the Financial Capability

Qualification Requirement]

(the “Company”) is banking

with us, and is a client in

good financial standing. We

also certify that, subject to




long as its substance is not

materially changed.

the conduct of our internal

due diligence processes, and

satisfaction of regulatory

requirements, that as of the

date of this letter, the

Company [is qualified to

obtain credit facilities of at

least Fifty Billion Philippine

Pesos

(PhP50,000,000,000.00) (or

state amount if less than

Fifty Billion Philippine

Pesos (insert numerical

value).”

65 Financial

Member

Annex QD-14 Kindly confirm that the

references to “Lead Member”

in the instructions of Annex

QD-14 should read “Financial

Member” instead. If so, please

amend the instructions of

Annex QD-14 accordingly.

Kindly confirm that the

references to “Lead Member”

in the instructions of Annex

QD-14 should read “Financial

Member” instead. If so,

please amend the instructions

of Annex QD-14 accordingly.

Confirmed. All references to

the “Lead Member” in

Annex QD-14 should pertain

to the “Financial Member”.

Annex QD-14 is revised to

read as follows:

“…

2. If the Prospective

Bidder will use an Affiliate

or an Affiliate of the Lead

Financial Member to comply

with the Financial Capability

Qualification Requirements

in Section 4.3, attach

evidence of such affiliation.




3….This amount may be

reduced by the excess of the

Prospective Bidder’s, or the

Lead Financial Member’s (in

case of a Consortium), or

any of their Affiliates’ (as

the case may be) unrestricted

net worth over Thirty Billion

Philippine Pesos

(PhP30,000,000,000.00).

66 Lock-Up

Rules/Period

Section 11 The ITPB does not prohibit a

Prospective Bidder which is a

Consortium from adding new

members during the Lock-Up

Period, i.e., from Qualification

Documents Submission Date

to Bid Proposals Submission

Date.

In fact, Section 11.2.c provides

that any Consortium Member,

whether or not they are

proposed to meet the

Technical or Financial

Qualification Requirements,

can increase or reduce its

percentage equity interest in

the Prospective Bidder.

Further, Section 11.3.a states

that a Pre-Qualified Bidder

may submit an application

with the Pre-Qualification

Bids and Awards Committee

Confirmed. All changes to

the equity structure shall be

subject to Lock-up rules in

Section 11.




(“PBAC”) during the Lock-Up

Period for all changes in the

composition of the

Consortium. As with other

PPP projects, these provisions

would allow a Consortium to

add new members after Pre-

Qualification.

Please confirm our

understanding that a

Consortium may add new

members after Pre-

Qualification and during the

Lock-Up Period subject, of

course, to the approval of the

Grantors in accordance with

Section 11.3.a.

67 Financial

Qualification

Requirement

(At-Grade Rail

DD Experience

and the Viaduct

DD Experience)

Sections 4.3 and 5.15.a

in relation to Annex

QD-14

1. There appears to be an

inconsistency between

Section 5.15.a and item

(a) of QD-14. Section

5.15.a of the ITPB does

not require DD

Contractors for the At-

Grade Rail Experience

and O&M Experience to

submit its own QD-14.

QD-14 provides,

however, that entities

nominated to satisfy

either the At-Grade Rail

DD Experience or the

1. Agreed. The appropriate

changes will be made to QD-

14.

Annex QD-14 is revised as

follows:

To be submitted by the

Prospective Bidder or an

Affiliate, including any

entity nominated by a

Prospective Bidder to satisfy

either the At-Grade Rail DD

Experience set forth in

Section 4.2.a.1(a) or the




Viaduct DD Experience

should submit QD-14.

Kindly clarify if the

instructions under QD-14

are incorrect and must be

revised to be consistent

with Section 5.15.a. If so,

kindly make the

appropriate changes.

2. Inasmuch as entities

proposed to meet the At-

Grade Rail DD

Experience and the

Viaduct DD Experience

are required to have an

unrestricted net worth of

at least

P1,000,000,000.00, and

assuming that they are

required to submit their

own QD-14, please

confirm that in the case

of these entities (which

are not otherwise the

Prospective Bidder itself

or Financial Members):

a. The reference to

Thirty Billion

Philippine Pesos

(P30,000,000,000.00)

in Paragraph 1 of their

Viaduct DD Experience set

forth in Section 4.2.a.1(b)

which fulfills the Financial

Capability Qualification

Requirement in Section 4.3,

as identified in the Business

Structure (Form QD-2A or

Form QD-2B) or by each

Financial Member of a

Consortium.

…

3. For the Prospective

Bidder or an Affiliate or by

each Financial Member of a

Consortium, a testimonial

letter/s from any domestic

universal or commercial

bank duly licensed, or an

international bank with a

subsidiary/branch in the

Philippines or an

international bank

recognized, by the Bangko

Sentral ng Pilipinas attesting

that the Prospective Bidder

or the Financial Member in

case of a Consortium, or any

of their Affiliates, is banking

with them and that it is in

good financial standing and

qualified to obtain credit




QD-14: Notarized

Statement of Financial

Capability should

instead read One

Billion Philippine

Pesos

(P1,000,000,000.00);

b. Paragraph 3 of their

respective QD-14 may

be deleted or left

blank, and that these

entities are not

required to submit

testimonial letters

from banks (Annex

QD-15).

c. In the case of foreign

entities, whose

accounting periods

ended on December

31, 2014, the foreign

exchange rates that

may be used in

converting foreign

currency to Philippine

Pesos are the foreign

exchange rates

published by the

Treasury Department

of the BangkoSentral

ng Pilipinas in its

facilities from such bank/s of

at least Fifty Billion

Philippine Pesos

(PhP50,000,000,000.00).

This amount may be reduced

by the excess of the

Prospective Bidder’s, or the

Financial Member’s…

2. This question no longer

applies, given that item (1)

was granted.




Reference Exchange

Rate Bulletin dated

January 5, 2015,

which is the earliest

publication of

reference rates after

December 31, 2014.

68 Withdrawal,

Substitution or

Change in

Composition of

Consortium

ITPB, Sections 11.2 and

11.3 (Lock-up Rules)

Please confirm that, where the

Prospective Bidder is a

Consortium:

(i) it is permitted for a

Consortium Member

to form a holding

company or a

subsidiary that would

then hold its interest

in the Consortium or,

following

incorporation, its

equity participation in

the Concessionaire;

(ii) it is permitted for

some (but not all)

Consortium Members

to form a holding

company or a

subsidiary that would

then hold their

collective interest in

the Consortium or

following

Confirmed, as long as all

other requirements specified

in the ITPB are still

complied with.




incorporation, their

collective equity

participation in the

Concessionaire;

(iii) it is permitted for a

Consortium Member

to form a joint

venture company

(“JVCo”) with

another entity that is

not a Consortium

Member that would

then hold the interest

of the Consortium

Member in the

Consortium or,

following

incorporation, its

equity participation in

the Concessionaire,

provided that such

JVCo would be

considered an

Affiliate of the

Consortium Member;

and

(iv) the formation of a

holding company, a

subsidiary or a JVCo

may be done (1) after

Pre-Qualification but




before Bid Proposals

Submissions Date; or

(2) after the

Prospective Bidder

has been declared the

Winning Bidder but

before the signing of

the concession

agreement.

(v) if the Consortium

Members who pre-

qualified for the bid

(consisting, for

instance, of the Lead

Member and another

Consortium Member)

subsequently

incorporate a holding

company which will

thereafter hold the

shares in the project

company, the same

will not be

considered as a

change in the

composition of the

Consortium which

will require the

approval of the

PBAC. Moreover,

please confirm that in

such a scenario, the




Lead Member,

through its equity in

the holding company,

may continue to have

the highest

percentage interest in

the Consortium as

required under

Section 4.3.b.

69 Withdrawal,

Substitution or

Change in

Composition of

Consortium

ITPB, Sections 11.2 and

11.3 (Lock-up Rules)

Please confirm that, in case of

a Prospective Bidder that is a

Consortium, it would be

permissible for Consortium

Members to (1) reduce its

participation interest; and (2)

to admit new Consortium

Members, subject to

compliance with the

requirements in the ITPB,

including approval by the

PBAC. Put differently, it is not

required that new Consortium

Members must replace

previous Consortium Members

(as in the case of Withdrawal

or Substitution), it being

permitted that new Consortium

Members are added after Pre-

Qualification but before Bid

Proposals Submission Date.

The request is permissible

provided that the

requirements of the ITPB are

complied with. Provided that

the requirements of the ITPB

are complied with, this is

acceptable. There is no need

to replace previous

Consortium Members, but

changes in participation

interest are subject to the

requirements in the ITPB for

Consortium Members that

have been nominated to meet

the requirement criteria.

70 Clause 11.2.b(1) Request Authority to give

provision for change or

substitution of Lead Member

Change of Lead Member is

not allowed, per Section 11.

However, please note that




as well per Section 11.2.b (5), if

there are 2 Lead Members

identified, one of them can

be substituted as long as the

other is retained.

G. ADMINISTRATIVE AND PROCEDURAL MATTERS




71 Queries and

Supplemental

Notices

ITPB, Section 3.4.a

(Queries and

Supplemental Notices)

Section 3.4.a (Queries and


provides that "all parties who

obtain the Invitation

Documents may send any

queries on any aspect of such

documents in writing, by

personal delivery to the Head

of the PBAC, and copied to

the PBAC Secretariat, the

DOTC, the PNR, and email to

all addresses cited below

preferably using attachments

in Microsoft Word (.doc r

.docx) or Microsoft Excel (.xls

or .xlsx).

The requirement of personal

delivery to entities that have to

be copied appears to be too

burdensome. Please confirm

that the furnishing of the copy

of the queries to the PBAC

Secretariat, the DOTC, and the

PNR may be done by personal

delivery or by fax.

"… may send any queries on

any aspect of such documents

in writing, by personal

delivery to the Head of the

PBAC, with andcopyied to

the PBAC Secretariat, the

DOTC, the PNR (by personal

delivery or by fax), and email

to all addresses cited below

preferably using attachments

in Microsoft Word (.doc r

.docx) or Microsoft Excel

(.xls or .xlsx).


72 Queries and

Supplemental

Notices

ITPB, Section 3.4.b

(Queries and


Section 3.4.b provides that

“although the PBAC will

attempt to respond to all

reasonable queries received

before the Qualification

Although the PBAC will

attempt to respond to all

reasonable queries received

before the Qualification

Documents Submission Date,

PBAC will try to respond to

queries as soon as

practicable, however the

requested commitment

cannot be made.




Documents Submission Date,

the PBAC is under no

obligation to do so.”

Please consider setting a

definite deadline for the

release of answers to pre-

qualification queries to allow

the Prospective Bidders

sufficient time to address the

matters or complications that

may arise due to such answers.

Please see suggested revision

in the next column.

the PBAC is under no

obligation to do so. Reponses

to queries and any

modifications to the Bidding

Documents will be made on a

non-attributable basis, and

shall be in writing and

provided to Prospective

Bidders through supplemental

notices or bid bulletins issued

by the PBAC, provided that,

with respect to the responses

to queries, such responses

will be released no later than

two (2) weeks before


Submission Date.

Please note that PBAC is

under no obligation to

respond to any queries.

73 Submission of

Qualification

Documents

ITPB, Paragraph 3 of

Section 7.1.c

(Submission of

Qualification

Documents)

Paragraph 3 of Section 7.1.c

requires the submission of the

electronic files of all the

Qualification Documents in

both Portable Document

format (.pdf) and Microsoft

Word (.doc). Please consider

removing the requirement of

the submission of the

Microsoft Word (.doc) copy of

the Qualification Documents.


74 General Please provide the Microsoft

Word (.doc) version of the

ITPB and Qualification

Documents.


H. DEFINITIONS




75 Definitions ITPB, Section 1.19

(Definitions)

Under the ITPB, “Control”

means, for the purpose of

defining an Affiliate, the

power to direct or cause the

direction of the management

policies and actions of a body

corporate, whether through: (i)

ownership of at least fifty

percent (50%) plus one (1) of

either or a combination of the

following: (i.a) the total

outstanding voting shares, or

(i.b) the voting rights, in

another entity, or (ii) the

ability to elect a majority of

the members of the other

entity’s board of directors, or

(iii) any legal agreement or

legal agreements, including a

voting trust or other voting

agreements.

Please consider revising the

above definition such that

owning more than 50% of the

outstanding voting shares

already constitutes control.

“Control” means, for the

purpose of defining an

Affiliate, the power to direct

or cause the direction of the

management policies and

actions of a body corporate,

whether through: (i)

ownership of more than at

least fifty percent (50%) plus

one (1) of either or a

combination of the following:

(i.a) the total outstanding

voting shares, or (i.b) the

voting rights, in another

entity, or (ii) the ability to

elect a majority of the

members of the other entity’s

board of directors, or (iii) any

legal agreement or legal

agreements, including a

voting trust or other voting

agreements.

Definition of “Control” is

revised as follows:

“Control” means, for

purposes of defining an

Affiliate, the power to direct

or cause the direction of the

management policies of a

body corporate whether

through: (i) ownership of

more than at least fifty

percent (50%) of the

outstanding voting shares

and voting rights of these

shares; or, (ii) the ability to

elect a majority of the

members of the Affiliate’s

board of directors, or (iii)

any legal agreement entered

into at least one year before


Submission Date, which has

an arrangement with similar

effect as in (i) or (ii) above.

76 Definition of

Unsatisfactory

Performance

ITPB, Section 1.52

(Definitions)

The definition of

“Unsatisfactory Performance”

under Section 1.52 appears to

be too broad. Please consider

“Unsatisfactory Performance”

means any of the following:

1. within the last five (5)

The existing wording is

consistent with precedent

transactions in the

Philippines (e.g. LRT1




our proposed revision in the

next column.

years prior to the


Submission Date -

a. failure to satisfactorily

perform any of its

material obligations on

any material contract, as

evidenced by the

imposition of a final and

executory judicial

pronouncement or

arbitration award;

b. expulsion from any

project or material

contract, provided, that

where the expulsion (i)

results from an act of all

or some of the other

parties to such project or

material contract

pursuant to the relevant

project agreements, there

being no fault on the part

of the expelled party, as

confirmed by a final

court or arbitral

judgment, if applicable,

(ii) results from the

mutual agreement of the

parties to the project or

material contract, (iii)

results from a final court

extension, Regional Airports,

Integrated Transport

System), so it will be

retained.




or arbitral judgment, or

(iv) results from

agreements by way of

settlement and

compromise, there being

no fault on the part of the

expelled party, such

expulsion shall not be

deemed as an incident of

Unsatisfactory

Performance;

c. termination or suspension

of any of its projects or

material contracts due to

a breach of its

obligations; or

d. material violation of laws

and/or regulations

applicable to any of its

projects or material

contracts, including but

not limited to

environmental, health,

safety, labor and social

welfare laws and

regulations, as evidenced

by the imposition of a

final and executory

judicial pronouncement

or arbitration award.

…

77 Financial

Capability

ITPB, Sections 4.3.a and

4.3.b ((Qualification

The term “unrestricted net

worth” is not defined under the

“Unrestricted net worth”

shall mean the sum of




Qualification

Requirements

Requirements) ITPB. In this regard, please

provide a

definition/clarification for the

term “unrestricted net worth”.

subscribed and paid up

equity, including additional

paid-in capital, and

unrestricted retained

earnings. Unrestricted

retained earnings means the

amount of accumulated

profits and gains realized out

of the normal and continuous

operations of the company

after deducting therefrom

distributions to stockholders

and transfers to capital stock

or other accounts, and which

is: (1) not appropriated by its

Board of Directors for

corporate expansion projects

or programs: (2) not covered

by a restriction for dividend

declaration under a loan

agreement; (3) not required

to be retained under special

circumstances obtaining in

the corporation such as when

there is a need for a special

reserve for probable

contingencies (as defined in

SEC Memorandum Circular

No. 11-08, December 5,

2008); and (4) not otherwise

covered by any other legal

restriction on the ability of

the company to distribute or




otherwise apply its equity.

78 Lead Member Section 1.31 in relation

to Section 4

Kindly clarify what appears to

be an inconsistency between

the definition of Lead Member

in Section 1.31 (which is

defined as the Consortium

Member with the largest

equity share in the

Consortium) and the second

sentence in the penultimate

paragraph of Section 4 (which

provides that the Financial

Member with the largest

equity interest in the

Consortium shall be

designated as the Lead

Member). Please note that a

Consortium Member, which

has the largest equity share in

the Consortium may not

necessarily be proposed to

meet the Financial Capability

Qualification Requirements.

In the alternative, a Financial

Member may not necessarily

be the Consortium Member

with the largest equity share in

the Consortium.

The Lead Member must be a

Financial Member and must

have the largest equity

interest in the Consortium.

79 Unsatisfactory

Performance

Record

Annex QD-4 We request that the entity

required to submit Annex QD-

4 be permitted to insert the

qualification “to the best of

my knowledge” in the

Under the defined term

“Unsatisfactory

Performance” (Section 1.52),

the items constituting this

defined term are always




certification inasmuch as it

may not necessarily and

actually know that it is in

material violation of any law

applicable to the project or

contract.

qualified by “as evidenced

by”. Thus, the party

executing would have

knowledge of that

Unsatisfactory Performance.

The proposed qualification –

“to the best of my

knowledge” is not

acceptable.

80 Conflict of

Interest

ITPB, Section 10

(Conflict of Interest)

Please confirm that:

(i) for purposes of

determining the

existence of Conflict of

Interest under Section

10, independent

directors are excluded

given that there are only

a handful of persons

serving as independent

directors for Philippine

companies.

(ii) for purposes of

determining the

existence of Conflict of

Interest under Section

10, the mere existence of

common directors

between two Prospective

Bidders or Consortium

Members or any of their

Affiliates would not

constitute a Conflict of

Independent directors and

common directors are not

excluded for purposes of

determining the existence of

Conflict of Interest.




Interest, it being

required that there be

direct involvement in the

Bidding Process of the

Projects. Consequently,

where common directors

do not participate in, or

actually inhibit or recuse

themselves during, any

deliberations and

decision-making for the

Bidding Process, please

confirm that no Conflict

of Interest exists. Put

differently, it is not

required for common

directors to resign from

their posts, it being

sufficient that there be is

only one Bidding

Process in which such

director has any direct

involvement.