technical matters on pim - ppp.gov.ph · 8 rolling stock pim, section iii, nsrp south line commuter...

A. TECHNICAL MATTERS ON PIM

A number of queries were received regarding the Project’s technical specifications of the existing system and technical requirements of the new system. Clarification on these matters will be provided after the pre-qualification process to pre-qualified bidders as part of the bidding process. Query No. Topic Name of Document and

Section # of Document

Query/Comment Proposed Redraft (if any) Response

1 Grade Crossing Elimination

PIM, Section III, NSRP South Line Commuter Line

Has the associated land acquisition started? Will this be completed by the time the concession for the Project is awarded?

For Manila to Legaspi, PNR currently owns the Right-of-Way (“ROW”) where the existing system runs so there is no need to acquire land. Other sections may require additional ROW. Such additional ROW is currently being identified for inclusion. However, it is likely that relocation of persons and utilities will need to be undertaken. These are currently being considered in the formulation of the Land Acquisition and Resettlement Action Plan currently being undertaken by Government. The indicative timeline for delivery of the ROW shall be provided in the draft Concession Agreement.

2 Double tracking from Sucat to

PIM, Section III, NSRP South Line Commuter

What is the status of works for the double tracking from Sucat

The PNR is currently undertaking a reassessment

Query No. Topic Name of Document and Section # of Document


Alabang Line

to Alabang?

of the Project and will be tendered thereafter.

3 Double tracking from Sucat to Alabang


What are the rolling stock design criteria considered in the design of the tracks?

Details will be disclosed to pre-qualified bidders at a later stage.

4 Double tracking from Alabang to Calamba


Please clarify whether double tracking of the line between Alabang and Calamba will be part of the Project. If so, will the Concessionaire be allowed to come up with more stringent design criteria than those used in initial double tracking from Sucat to Alabang?

Double tracking of the line between Tutuban and Calamba, where it is not already, will be part of the Project. The Concessionaire shall be responsible for ensuring that the entire system meets the minimum performance standards and specifications (MPSS) which will be provided in the Concession Agreement. The Concessionaire is not prohibited from adopting standards above the MPSS, however, the costs incurred in doing so will be for the Concessionaire’s account.

5 Freight trains PIM, Section III, NSRP South Line Commuter Line

Please confirm whether freight trains are expected to operate along the Commuter Line.

There is no requirement for the Concessionaire to run freight on the commuter line.

6 Depot PIM, Section III, NSRP South Line Commuter Line

Has land acquisition for the new depot started?

The process for the identification and acquisition of ROW for the new depot is on-going.



7 Rolling Stock PIM, Section III, NSRP South Line Commuter Line

The description of Commuter Line rolling stock refers to articulated EMUs. Please confirm that this is accurate.

This was an error. The term “articulated” will be removed from the final version of the specifications.

8 Rolling Stock PIM, Section III, NSRP South Line Commuter Line

Please confirm that the lengths of end cars and the gangway are accounted for in the platform design. Also, please confirm that a longer platform length can be proposed in the design.

Confirmed.

9 Operating Requirement

PIM, Section III, NSRP South Line Long Haul Line

Please confirm whether the long haul line will be used by freight trains or will be dedicated to passenger services. If freight service is provided on the long haul, where will this start and terminate?

There is no requirement for the Concessionaire to operate freight trains for the long-haul line. The technical specifications of the long-haul railway will be defined in the Concession Agreement.

10 Operating Requirement

PIM, Section III, NSRP South Line Long Haul Line

What are the operations of the long haul service and freight service if any?

There is no requirement for the Concessionaire to operate freight trains for the long-haul line. The technical specifications of the long-haul railway will be defined in the Concession Agreement.

B. CLARIFICATIONS ON FORM OF CERTIFICATION AND SUBMISSIONS

Query No. Topic Name of Document and

Section # of Document Query/Comment Proposed Redraft (if any) Response

11 Qualification Documents

ITPB, Section 4.1.a in relation to Annex QD-3 (Qualification Documents)

Under the ITPB, Annex QD-3 requires the submission by a foreign entity listed in the Business Structure of a certified true copy of the equivalent document of the relevant document (i.e. Certificate of Incorporation, Articles of Incorporation and By-laws) submitted to and acknowledged by the appropriate government agency in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. In this regard, where the legal procedure and practice under a foreign jurisdiction is to appear before a notary public to form a corporation or to cause any amendment to the constitutive documents of a corporation and, in such case, the notary public retains the original of the corporate documents so notarized, please confirm our understanding that

Confirmed, provided that a certification from the authorized representative is also submitted together with the notary public’s certification, and such certification from the authorized representative, shall state that there is no requirement under the jurisdiction of that entity to submit the relevant document or documents to a government agency. Such certification shall be notarized and authenticated.



an original affidavit or document issued by the notary public setting forth the relevant details of a corporation (including details typically found under the Certificate of Incorporation, 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 4.1.a in relation to Annex QD-3.

12 Documentary Requirements for Proof of Affiliation

ITPB, Section 5.3.c in relation to Section 5.4.b(1) (Qualification Documents)

Section 5.3.c provides that if an Affiliate will be used to comply with the Financial Capability Qualification Requirements, evidence of affiliation must be submitted, as described in the definition of “Control” must be submitted. In this regard, please confirm the submission of a (a) GIS or its equivalent or (b) an Annual Report or (c) a Secretary’s Certificate or a certification by an equivalent officer certifying that that (1) more than fifty

For domestic corporations, evidence of affiliation may be established by submission of the GIS of the domestic corporations involved, as of the year of submission of the pre-qualification documents, or if none has been submitted, the previous years’ GIS; or, the Annual Report filed with the SEC as of the year of the submission of the pre-qualification documents, or if none has been filed, the Annual Report as of the previous year; or, a certification under



percent (50%) of either or a combination of (1.a) the total outstanding voting shares or (1.b) the voting rights in another entity; or (2) the ability to elect a majority of the members of the entity’s board of directors or (3) any legal agreement or legal agreements, including a voting trust or other voting agreement is sufficient to establish Control as defined in Section 1.19. Further, in case of foreign companies, please confirm that if the equivalent document of the General Information Sheet (“GIS”) does not contain information on the affiliation between a Consortium Member and its Affiliate, such foreign entity can submit, in lieu of the equivalent document of the GIS, a certification from its Corporate Secretary or an equivalent officer to a Corporate Secretary, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate

oath by the Corporate Secretary of the relevant corporations certifying to the affiliation, specifying the details of such affiliation. For foreign corporations, the same documents or their equivalent documents in the relevant jurisdiction may be submitted. Please note the revised definition of “Control,” 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



resolutions, of such company or by the authorized representative of the Prospective Bidder setting out the affiliation between such Consortium Member and its Affiliate.

Qualification Documents Submission Date, which has an arrangement with similar effect as in (i) or (ii) above. In determining ownership of shares in a corporation, shares held both directly and indirectly will be counted. For purposes of determining the existence of a Conflict of Interest, only agreements which are in effect at any point in time during the Bidding Process will be considered.

13 List of Stockholders in a Listed Company

ITPB, Annex QD-3 (Basic Information Sheet)

Item 5 of Annex QD-3 requires an entity included in the Business Plan to list the name, nationality and percentage total of shareholding or partnership interest. In this regard, in respect of listed companies:

(i) Top 100 is Sufficient.

Please confirm our understanding that it would be sufficient to submit the Top 100 stockholders of a

(i) Confirmed. (ii) Confirmed. (iii) Confirmed. Shares held by PCD Nominee may be lumped together.



listed company, as submitted to the PSE.

(ii) Cut-Off Date will be as of the last submission to the PSE. Please confirm our understanding that it would be sufficient to provide the Top 100 Stockholders based on the last submission to the PSE.

Shares Held by PCD Nominee May Be Lumped Together. Considering that scripless shares of listed companies in the Philippines may be held by the PCD Nominee, please confirm our understanding that it would be acceptable to put PCD Nominee under the column “Name of Shareholder or Partner” in Item 5 of Annex QD-3.

14 Reporting of Ownership By Persons Holding Shares in a Fiduciary Capacity

ITPB, Annex QD-3 (Basic Information Sheet)

Item 6 of Annex QD-3 requires an entity included in the Business Plan to list the name, nationality and percentage total of beneficial ownership of shareholders

Confirmed.



owning more than 5% beneficial interest. In this regard, considering that listed shares may be held by banks, trusts, brokers, custodians, depositaries and other entities in a fiduciary capacity, please confirm our understanding that it would be sufficient to list the name of such banks, trusts, brokers, custodians, depositaries and other in Item 6 of Annex QD-3 without further investigating the ultimate beneficial owner of these listed shares.

15 Notarized Authority issued by Executive Committee

ITPB, Annex QD-1C (Consortium Member’s Notarized Authority to Participate in Consortium and Apply to Pre-qualify, and Designation of Financial Member/s, Lead Member and Authorized Representative of Consortium

Please confirm that an Executive Committee or other duly established and appropriately empowered committee or body (other than a board of directors) under the entity’s By-Laws or an equivalent document authorizing the establishment thereof can issue the Notarized Authority required by Annex QD-1C.

Properly authorized entities like the Executive Committee is sufficient provided that the authority of such empowered committee or body is established by the Bidder.

16 Qualification Requirements

Section 4 Please confirm our understanding that Prospective Bidders are allowed to submit photocopies of notarized and

Declined.



duly authenticated corporate documents (submitted for the LRT Line 2 O&M Project) provided it is accompanied with a certification from the authorized representative of the Prospective Bidder that such documents are true and correct copy of the original notarized and authenticated documents.

17 Project Owner Certification

Attachment to Annexes QD-5, QD-7, QD-9 and QD-11

In case the entity which fulfils the relevant Technical Qualification Requirement is also the project owner, please confirm that the entity itself can issue the notarized certification.

Yes. The entity may issue the notarized certification if it is also the project owner, but the notarized certification must state such fact.

18 O&M Experience (required attachments)

Section 5.8.b and Annex QD-7

Section 5.8.b provides that an entity proposed to meet the O&M Experience is required to submit “a notarized

certification from the project

owner that the railway system has been operated and maintained by the entity…”. We request the PBAC to relax the requirement to submit a notarized certification, and allow entities nominated to meet the O&M Experience to submit unnotarized

Please consider our proposed changes to Section 5.8.b:

The entity required to submit this document must also submit an original notarized certification from the project owner that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years, reckoned from the Qualification Documents Submission Date, or, in the

The request is granted. However, the entity being nominated must submit a sworn statement certifying its authenticity. Section 5.8b is revised as follows: The entity required to submit this document must also submit an original notarized certification from the project owner that the rail service has been operated and



certifications from project owners specifying the required information in Section 5.8.b, or a copy such certificates accompanied by a notarized certification issued by an officer of the entity proposed to meet the O&M Experience that such copy is a true and faithful reproduction of the original certificate. We note that entities proposed to meet the DD Experience are allowed such flexibility, and there appears to be no sufficient justification to not allow the same flexibility to entities proposed to meet the O&M Experience. Please note that most if not all project owners of railway projects are government entities, and officials of such

government entities do not

issue notarized certifications

because the issuance of

documents and certificates is

already in performance of

official duty.

case of a concession, lease, management contract or similar, a certificate issued by the project owner stating (i) that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years, reckoned from the Qualification Documents Submission Date; and (ii) the duration of the concession, lease or management contract, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the O&M Experience that such copy is a true and faithful reproduction of the original certification.

Please consider our proposed changes to Annex QD-7:

2. Original Notarizedcertification from the project owner that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7)

maintained by the entity for at least three (3) consecutive years within the last seven (7) years, or, in the case of a concession, lease, management contract or similar, a certificate issued by the project owner stating (i) that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years and (ii) the duration of the concession, lease or management contract, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the O&M Experience that such copy is a true and faithful reproduction of the original certification The relevant portion of Annex QD-7 is revised as follows: Original Notarized certification from the project owner that the rail service



years, reckoned from the Qualification Documents Submission Date, or, in the case of a concession, lease, management contract or similar, a certificate issued by the project owner stating (i) that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years, reckoned from the Qualification Documents Submission Date; and (ii) the duration of the concession, lease or management contract, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the O&M Experience that such copy is a true and faithful reproduction of the original certification.

has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years, reckoned from the Qualification Documents Submission Date, or, in the case of a concession, lease, management contract or similar, a certificate issued by the project owner stating (i) that the rail service has been operated and maintained by the entity for at least three (3) consecutive years within the last seven (7) years, reckoned from the Qualification Documents Submission Date; and (ii) the duration of the concession, lease or management contract, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the O&M Experience that such copy is a true and faithful reproduction of the original certification.

19 Systems, Section 5.10.b and Section 5.10.b provides that an Please consider our proposed The request is granted.



Signaling, and Telecom Experience (required attachments)

Annex QD-9 entity proposed to meet the Systems, Signaling, and Telecom Experience is required to submit “a notarized certification from

the project owner that the railway system was installed and commissioned by the entity.” We request the PBAC to relax the requirement to submit a notarized certification, and allow entities nominated to meet the Systems, Signaling, and Telecom Experience to submit an unnotarized certificate of project completion or a copy thereof accompanied by a notarized certification issued by an officer of the entity proposed to meet the Systems, Signaling, and Telecom Experience that such copy is a true and faithful reproduction of the original certificate. We note that entities proposed to meet the DD Experience are allowed such flexibility, and there appears to be no sufficient justification to not allow the same flexibility to

changes to Section 5.10.b:

The entity required to submit this document must also submit an original notarized certification from the project owner that the railway system was installed and commissioned by the entity, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the Systems, Signaling, and Telecom Experience that such copy is a true and faithful reproduction of the original certification.

Please consider our proposed revision to Annex QD-9:

2. Original Notarizedcertification from the project owner that the Systems, Signaling and Telecom systems were installed and commissioned by the entity, or a copy of the said certification

However, the entity being nominated must submit a sworn statement certifying its authenticity. Section 5.10b is revised as follows: The entity required to submit this document must also submit an original notarized certification from the project owner that the railway system was installed and commissioned by the entity, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the Systems, Signaling, and Telecom Experience that such copy is a true and faithful reproduction of the original certification.

The relevant portion of Annex QD-9 is revised as follows:

Original Notarizedcertification from the project owner that the



entities proposed to meet the Systems, Signaling, and Telecom Experience. Please note that most if not all project owners of railway projects are government entities, and officials of such

government entities do not

issue notarized certifications

because the issuance of

documents and certificates is

already in performance of

official duty.

accompanied by a notarized certification issued by an officer of the entity proposed to meet the Systems, Signaling, and Telecom Experience that such copy is a true and faithful reproduction of the original certification.

Systems, Signaling and Telecom systems were installed and commissioned by the entity, or a copy of the said certification accompanied by a notarized certification issued by an officer of the entity proposed to meet the Systems, Signaling, and Telecom Experience that such copy is a true and faithful reproduction of the original certification.

C. REQUESTS TO MODIFY ACCEPTABLE DOCUMENTS



20

Evidence of Affiliation for the Entity Fulfilling the Technical Qualification Requirements

ITPB, Section 5.3.c (Qualification Documents Submission) in relation to Section 4.4.a (Qualification Requirements)

Please consider revising Section 5.3.c to include the submission of evidence of affiliation by the entity fulfilling the Technical Qualification Requirements.

Please consider revising Section 5.3.c to read as follows: “5.3.c If an Affiliate will be used to comply with the Technical Requirements Qualifications or Financial Capability Qualification Requirements, evidence of affiliation, as described in the definition of “Control” must be submitted.”

The request is granted. Section 5.3.c is revised as follows: 5.3.c If an Affiliate will be used to comply with the Technical Requirements Qualifications or Financial Capability Qualification Requirements, evidence of affiliation, as described in the definition of “Control” must be submitted.

21 Certification of No Equivalent Document of Incorporation Documents and GIS

ITPB, Paragraph 6 of Section 5.4.b (Qualification Documents)

Please consider the revision of Paragraph 6 of Section 5.4.b to include the Articles of Incorporation as one of the documents which can be certified to have no equivalent document in a foreign jurisdiction.

Please consider the revision of Paragraph 6 of Section 5.4.b to read as follows: “If the jurisdiction where the foreign entity is incorporated or registered does not require or accept the filing of the equivalent of the Philippines’ GIS, Certificate Of Incorporation, Articles of Incorporation and By-Laws, the PBAC will accept a certification … GIS, Certificate of Incorporation, Articles of Incorporation and By-laws, and (b) providing

The request is granted. Section 5.4.b is revised as follows: If the jurisdiction where the foreign entity is incorporated or registered does not require or accept the filing of the equivalent of the Philippines’ GIS, Certificate Of Incorporation, Articles of Incorporation and By-Laws, the PBAC will accept a certification … GIS, Certificate of Incorporation, Articles of Incorporation and



similar information required …”

By-laws, and (b) providing similar information required …

22 Design and Development Experience, using the form in Annex QD-5

ITPB, Section 5.6.b(1) (Qualification Documents); Item 2 of Annex QD-5

Please confirm whether the notarized certification that the copy of the original certificate of project completion of the entity proposed to meet the DD Experience is a true and faithful reproduction of the original may be executed by the Corporate Secretary or an equivalent officer or by an authorized representative of such entity.

Please consider revising Section 5.6.b(1) and Item 2 of Annex QD 5 to read as follows: “Notarized certification of project completion from the project’s owner or the original certificate of project completion or a copy thereof accompanied by a notarized certification issued by the Corporate Secretary or an equivalent officer, or by an authorized representative of the entity proposed to meet the DD Experience that such copy is a true and faithful reproduction of the original certificate”

The request is granted. We will also require that the bidder establish the authority of the authorized representative, if using an authorized representative. Section 5.6.b(1) is revised as follows: Notarized certification of project completion from the project’s owner or the original certificate of project completion or a copy thereof accompanied by a notarized certification issued by the Corporate Secretary or an equivalent officer, or by an authorized representative of the entity proposed to meet the DD Experience that such copy is a true and faithful reproduction of the original certificate The relevant portion of Annex QD-5 is revised as follows:



Notarized certification of project completion from the project’s owner or the original certificate of project completion or a copy thereof accompanied by a notarized certification issued by the Corporate Secretary or an equivalent officer, or by an authorized representative of the entity proposed to meet the DD Experience that such copy is a true and faithful reproduction of the original certificate.

23 Operations Reports

ITPB, Section 5.8.c.1 (Qualification Documents)

Section 5.8.c.1 requires the entity proposed to fulfill the O&M Experience to submit an Operations Reports stating passenger volumes for the relevant period should be certified by the relevant public transportation authority as accurate records of the operations stated in such report. In view of the tight deadline the Prospective Bidder and Contractors are working with, please confirm that for purposes of the Pre-Qualification and in relation to

The request is granted. However, we would require that the certification of the operations report by the relevant public transportation authority or project owner be submitted prior to the bid submission date. Section 5.8.c.1 is revised to read as follows: Operations Reports issued by the entity stating passenger volumes for the relevant period. These reports should be certified by either the



documents and certifications issued abroad, the PBAC will accept:

(i) the copy of the

Operations Report certified true and correct by the entity’s Corporate Secretary or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder; or

a certified true copy of a report issued by the relevant public transportation authority which reflect the facts and figures of the entity’s Operations Reports. The certification may be made by the entity’s Corporate Secretary or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company.

project owner or the relevant public transportation authority as being accurate records of the operations as stated.



24 Notarized Statement of Financial Capability; Annex QD-14

ITPB, Section 5.15.b(1) (Qualification Documents) and Annex QD-14

Please consider revising Section 5.15.b(1) to include the Treasurer and the authorized representative of the entity fulfilling the Financial Capability Requirement among the persons qualified to issue the certification that the copy of the audited financial statements are true copies of the original.

Please consider revising Section 5.15.b(1) to read as follows: “5.15.b(1) Certified true copy of audited financial statements, which must be for the year ending not earlier than 31 December 2014, stamped “received” by the Bureau of Internal Revenue or for foreign entities, the appropriate government agency equivalent to the Bureau of Internal Revenue in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The certification may be issued by the Treasurer or an equivalent officer of, or auditor engaged by or the authorized representative of, the entity proposed to meet the Financial Capability Qualification Requirements, in which case the certification must be under oath and notarized.”

The Treasurer is already an officer of the company, so the existing wording should allow for it. In the case of authorized representative, the request is granted though we will also require that the authority of the authorized representative is established, in relation to certifying these statements. Section 5.15.b(1) of the ITPB is amended to read as follows: 5.15.b(1) Certified true copy of audited financial statements, which must be for the year ending not earlier than 31 December 2014, stamped “received” by the Bureau of Internal Revenue or for foreign entities, the appropriate government agency equivalent to the Bureau of Internal Revenue in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or



capacity. The certification may be issued by an officer of, or auditor engaged by or the authorized representative of, the entity proposed to meet the Financial Capability Qualification Requirements, in which case the certification must be under oath and notarized.

25 Required attachments to Annex QD-3 (Basic Information Sheet)

Section 5.4.b 1. We understand that as attachments to the Basic Information Sheet, each entity identified in the Basic Information Sheet must submit a certified true copy of (i) its latest GIS; (ii) Certificate of Incorporation (“COI”); and (iii) Articles of Incorporation (“AOI”) and By-laws, or the equivalent of such documents in the country where the foreign entity was registered for creation or recognition. We note that Sections 5.4.b(1), 5.4.b(3) and 5.4.b(4) allow the submission of certified true copies of the GIS, AOI and By-laws issued by the entity’s corporate

We propose that Section 5.4.b be revised to read as follows: 5.4.b(1) Certified true copy of its latest GIS, stamped “received” by the SEC or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The certification may come from either the SEC or its equivalent in a foreign country, or the entity’s corporate secretary, or duly authorized officer. If it comes

For items 1-5: In case of equivalent documents, the duly authorized representative shall certify under oath and notarized that the documents submitted are the equivalent of Philippine incorporation documents, which shall thereafter be authenticated by a Philippine consular or embassy official. The certification from the government authority equivalent of SEC shall be submitted on the Bid Submission Date. For item 6: If the document is notarized in the Philippines (where the signatory comes over and



secretary, provided that the certification must be under oath and notarized. In this regard, please confirm that the certified true copy of the COI as required under Section 5.4.b(2) may also be issued by the entity’s corporate secretary, or in the case of a foreign entity, a duly authorized officer, provided that such certification is made under oath and notarized.

2. As with other PPP projects, kindly allow a duly authorized officer (who may or may not necessarily be the corporate secretary) of a foreign entity submitting QD-2 to certify that copies of the required attachments to Annex QD-2 (i.e. AOI, COI, GIS, and By-laws) are true copies of their originals. This is considering that, under the corporate rules of some foreign entities, the corporate secretary is

from the entity’s corporate secretary, or duly authorized officer the certification must be under oath and notarized. Further, if the foreign country does not require an equivalent document of the GIS, a notarized certification setting out the same or similar information executed by the corporate secretary, or duly authorized officer of the foreign entity will suffice. 5.4.b(2) Certified true copy of SEC Certificate of Incorporation / Registration or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The SEC Certificate of Incorporation or the equivalent document for a foreign entity, must be

signs the document in the Philippines and appears before the notary in the Philippines), the document need not be authenticated.



prohibited from certifying documents which are to be used outside of its country of jurisdiction.

3. For the same reason as in

No. 2, please confirm if a foreign notary public is authorized to certify as true copies the required attachments to Annex QD-2 (i.e. AOI, COI, GIS, By-laws).


No. 2, kindly confirm that the notarized certification mentioned in the last sentence of Section 5.4.b(1) may be issued by a duly authorized officer (who may or may not necessarily be the corporate secretary) of a foreign entity.


No. 2, kindly confirm that the notarized certification mentioned in the penultimate paragraph of Section 5.4.b may be issued by a duly

certified by the SEC or its equivalent in a foreign country, by the entity’s corporate secretary, or duly authorized officer, in the case of a foreign entity. All certifications by the entity’s corporate secretary or duly authorized officer must be under oath and notarized. 5.4.b(3) Certified true copy of latest Articles of Incorporation or Articles of Partnership or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The Articles of Incorporation may be certified either by the SEC or its equivalent in a foreign country, or by the entity’s corporate secretary, or duly authorized officer. All certifications by the entity’s corporate secretary or duly



authorized officer (who may or may not necessarily be the corporate secretary) of a foreign entity.

6. Kindly confirm that the

certification mentioned in the last paragraph of Section 5.4.b may be executed by the authorized representative of the foreign entity in the Philippines (who will come to the Philippines for such purpose), and notarized here in the Philippines. In such case, please confirm that such certification, which is executed and notarized in the Philippines, need not be authenticated.

authorized officer must be under oath and notarized. 5.4.b(4) Certified true copy of latest By-Laws or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The By-Laws may be certified either by the SEC or its equivalent in a foreign country, or by the entity’s corporate secretary, or duly authorized officer. All certifications by the entity’s corporate secretary or duly authorized officer must be under oath and notarized. For the foregoing documents, if the appropriate government agency equivalent to the SEC in the foreign country does not stamp “received” or acknowledge the said



documents, the entity’s corporate secretary or duly authorized officer may attest to such fact in a notarized certification.

26 Format of Submission of Qualification Documents

Sections 7.1.f and 7.1.g Sections 7.1.f and 7.1.g mention five (5) envelopes or sets of Qualification Documents. There are, however, six (6) sets of Qualification Documents (i.e., one (1) original set and five (5) photocopies of the original set). Kindly amend the ITPB accordingly.

Section 7.1.f. Each set of the Qualification Documents should contain a table of contents. Each set of the Qualification Documents must be placed in separate envelopes. The five (5) CD-Rs or external drives should also be placed in a separate envelope. Each of the five (5)six (6) envelopes containing the Qualification Documents and the envelope containing the five (5) CD- Rs or external drives must be sealed and appropriately addressed and marked as follows: *** Section 7.1.g. All five (5)six (6) sets of the Qualification Documents and the envelope containing the

Agreed. Section 7.1.f. is revised as follows: Each set of the Qualification Documents should contain a table of contents. Each set of the Qualification Documents must be placed in separate envelopes. The five (5) CD-Rs or external drives should also be placed in a separate envelope. Each of the five (5)six (6) envelopes containing the Qualification Documents and the envelope containing the five (5) CD- Rs or external drives must be sealed and appropriately addressed and marked as follows: Section 7.1.g. is revised as follows: All five (5)six (6) sets of the Qualification Documents and



CD-Rs or external drives shall be placed in one or, if necessary, more sealed outer envelope(s) or box.

the envelope containing the CD-Rs or external drives shall be placed in one or, if necessary, more sealed outer envelope(s) or box.

27 Secretary’s certificate

Annex QD-5, Annex QD-7, Annex QD-9, and Annex QD-11

Item 1 of the notes to each of Annexes QD-5, QD-7, QD-9, and QD-11 requires the attachment of a secretary’s certificate stating that the authorized representative of the entity submitting the form has been duly appointed by its board of directors. The second sentence of the notes to each of Annexes QD-6, QD-8, QD-10 and QD-12 also provide that such QDs “shall be supported by a notarized Secretary's Certificate stating that the authorized representative has been duly appointed by the board of directors”. The requirement to submit a secretary’s certificate is not very common in most PPP biddings, especially where foreign contractors are involved, and in those few PPP

The request is denied.



biddings where the secretary’s certificate was required, the requirement was ultimately deleted or relaxed because the Grantors found the requirement to be cumbersome as explained by the bidders. This document is also not mentioned in list of required attachments in Sections 5.6, 5.7 5.8, 5.9, 5.10, 5.11, 5.12, and 5.13. Accordingly we suggest deleting item 1 of Annexes QD-5, QD-7, QD-9, and QD-11 and the second sentence of the notes to Annexes QD-6, QD-8, QD-10 and QD-12. We note that in other PPP projects, only the authority of the authorized representative of the Prospective Bidder and each Consortium Member (e.g., Annex QD-1C) is required to be submitted.

28 PCAB License Section 5.6.b(2), and item 3 of Annex QD-5

As with other PPP projects, kindly accept a copy of PCAB license, or its equivalent for foreign entities, that is accompanied by a notarized

We will allow certification by the duly authorized representative for pre-qualification purposes but the certification from the



certification, issued by a duly authorized officer of the entity submitting the document, that the copy of the PCAB license or its equivalent is a true and faithful reproduction of the original license.

accreditation institution must be submitted on Bid Submission Date.

29 Operation Reports

Section 5.8.c.1 and Annex QD-7

There is an inconsistency between the language of Section 5.8.c.1 and item 3 of the Required Attachments indicated in Annex QD-7. On one hand, Section 5.8.c.1 of the ITPB requires that the operation reports are certified by the relevant public

transportation authority as being accurate records of the operations as stated. On the other hand, item 3 of the Required Attachments indicated in Annex QD-7 provides that the operation reports must be certified by the project owner as accurate records of the operations as stated. We believe that either of these entities would be in a position to certify the accurateness of operation reports. Accordingly, a certification

We propose that Section 5.8.c.1 be revised to read as follows: “Operations Reports issued by the entity stating passenger volumes for the relevant period. These reports should be certified by either the project owner or the relevant public transportation authority as being accurate records of the operations as stated.” We propose that item 3 of the Required Attachments indicated in Annex QD-7 be revised to read as follows: “3. Operations Reports issued by the entity stating passenger volumes for the relevant period. These reports should be certified by either the project owner or the relevant

Certification may also be issued by the project owner, but in this case the certification must state such fact. Section 5.8.c.1 is revised to read as follows: Operations Reports issued by the entity stating passenger volumes for the relevant period. These reports should be certified by either the project owner or the relevant public transportation authority as being accurate records of the operations as stated.



from either the project owneror relevant public transportation authority should be sufficient. Please consider our proposed revisions to the ITPB.

public transportation authority as being accurate records of the operations as stated.”

30 Designation of Authorized Representative

ITPB, Annex QD-1B (Notarized Authority to Apply to Pre-Qualify and Designation of Authorized Representative)

Annex QD-1B appears to require only one (1) Authorized Representative for every Prospective Bidder. Please consider allowing at least two (2) Authorized Representatives who can act singly for and on behalf of the Prospective Bidder.

The request is granted. The Prospective Bidder may designate up to two authorized representatives. The Prospective Bidder must clearly designate the names of both authorized representatives and that they may represent the Prospective Bidder acting alone.

31 Designation of Authorized Representative

Annex QD-1C Please confirm that two (2) authorized representatives may be designated in QD-1C to individually and alternatively execute, sign, and receive documents.

We propose that Annex QD-1C be revised as follows: RESOLVED FURTHER, that the (Consortium Member) in the exercise of its interest in the Consortium hereby: *** (c) authorizes (name of authorized representative) or (name of authorized representative)of (name of Lead Member of Consortium) as representative of the Consortium during the Pre-Qualification of Prospective

Confirmed. The Prospective Bidder may designate up to two authorized representatives. The Prospective Bidder must clearly designate the names of both authorized representatives and that they may represent the Prospective Bidder acting alone.



Bidders for the Project, and for such purpose shall have the authority to individually and alternatively execute, sign, submit and receive documents for, and otherwise act in the name of the Consortium; *** RESOLVED, FURTHER, that any and all acts done or performed by (name of Lead Member of Consortium) and (name of authorized representative/s) under and by virtue of this resolution be, as they are hereby, confirmed and ratified.

D. MATTERS RELATING TO LANGUAGE AND FOREIGN DOCUMENTS



32 Language and Foreign Documents

ITPB, Sections 3.6.b and 3.6.c (Language and Foreign Documents)

Section 3.6.c provides: If the document was issued by a foreign authority, the Prospective Bidder should also submit a certified true copy of such document issued by such foreign authority, in addition to the authentication by the relevant Philippine consular official in Section 3.6.b above. while Section 3.6.b provides: All documents issued or executed in a foreign country, which are expressly required to be notarized under the ITPB, must be authenticated before a Philippine consular official at the Philippine consulate nearest the place of issue or execution. xxx Based on the foregoing provisions, it is our understanding that if a foreign document is one issued by a foreign authority, a certified true copy of such document (including the required

If the document was issued by a foreign authority, the Prospective Bidder should also submit either the original or a certified true copy of such document, issued by such foreign authority and authenticatedin addition to the authentication by the relevant Philippine consular official in Section 3.6 above.

The request is granted. Section 3.6.c is revised as follows: If the document was issued by a foreign authority, the Prospective Bidder should also submit either the original or a certified true copy of such document, issued by such foreign authority and authenticatedin addition to the authentication by the relevant Philippine consular official in Section 3.6 above.



authentication) should be submitted in addition to the original document (including the required authentication). In this regard, please consider that only the original or the certified true copy, in each case complying with the required authentication, should be submitted. Please see our proposed revision in the next column.


ITPB, Section 3.6.a (Language and Foreign Documents)

Section 3.6.a provides: The Qualification Documents, and all correspondence and documents relating to the Invitation Documents and the Bid, shall be prepared and written in the English language. Any printed literature or document furnished by Prospective Bidders written in another foreign language shall be accompanied by an English translation authenticated by a Philippine consular official and by a notarized certification by the Prospective Bidder that such translation is accurate. In case of conflict, the English

The Qualification Documents, and all correspondence and documents relating to the Invitation Documents and the Bid, shall be prepared and written in the English language. Any printed literature or document furnished by Prospective Bidders written in another foreign language shall be accompanied by an English translation authenticated by a Philippine consular official and by a notarized certification by the Prospective Bidder or the translator of the document that such translation is accurate. In case of conflict, the English translation shall prevail.

The request is granted. Note that translator certification should be authenticated by a Philippine consular official. Section 3.6.a is revised as follows: The Qualification Documents, and all correspondence and documents relating to the Invitation Documents and the Bid, shall be prepared and written in the English language. Any printed literature or document furnished by Prospective Bidders written in another foreign language shall be accompanied by an English



translation shall prevail. We request that this provision be revised to allow the translator to also issue the notarized certification. Where the Prospective Bidder is not in the position to warrant the authenticity and certify the accuracy of the translation issued, the actual translator of the document should be able to issue such notarized certification.

translation authenticated by a Philippine consular official and by a notarized certification by the Prospective Bidder or the translator of the document that such translation is accurate. In case of conflict, the English translation shall prevail.


ITPB, Sections 3.6.a and 3.6.b (Language and Foreign Documents)

It is a practice of certain Philippine embassies or consular offices to attach to the certified English translation of a document written in a foreign language that is the subject of the authentication (the “authenticated English document”) an original or a certified copy of the document written in a foreign language (i.e. both the certified English translation and the document written in a foreign language form part of the authenticated English document) although only the English translation is legalized (i.e. bears the stamp

Confirmed, provided that the authentication of the relevant consular office shall expressly make reference to the original document as an attachment to the document being authenticated.



and signature of the officer of the Ministry of the Foreign Affairs of the foreign jurisdiction). In such case, please confirm our understanding that the submission of the authenticated English document (with an attached original or certified copy of the document written in the foreign language) shall be considered sufficient compliance with the requirements in the ITPB that (1) “[a]ll documents issued or executed in a foreign country, which are expressly required to be notarized under the ITPB, must be authenticated before a Philippine consular official at the Philippine consulate nearest the place of issue or execution” and (2) that “[a]ny printed literature or document furnished by Prospective Bidders written in another foreign language shall be accompanied by an English translation authenticated by a Philippine consular official and by a notarized



certification by the Prospective Bidder that such translation is accurate… ”


ITPB, Section 3.6.c (Language and Foreign Documents)

Section 3.6.c provides: If the document was issued by a foreign authority, the Prospective Bidder should also submit a certified true copy of such document issued by such foreign authority, in addition to the authentication by the relevant Philippine consular official in Section 3.6.b above. Where the Prospective Bidder submits an original of a foreign document issued by a foreign authority, which foreign document is not required in such foreign jurisdiction to be notarized, please confirm our understanding that (i) notarization and authentication shall not be required and that (ii) the submission of the original of the foreign document or an authenticated English document to which the original of such foreign document or a certified true copy thereof is attached, shall

Confirmed.



be considered sufficient compliance with Section 3.6.c.

36 Incorporation Document and GIS

ITPB, Sections 5.4.b(1), 5.4.b(2), 5.4.b(3) and 5.4.b(4) (Qualification Documents)

In case of a foreign company, please consider allowing the copies of its equivalent incorporation documents (i.e., the Certificate of Incorporation, Articles of Incorporation and By-Laws) and its General Information Sheet or its equivalent to be certified as true and correct not only by the entity equivalent to the Philippine Securities and Exchange Commission (“SEC”) in such foreign country but also by such company’s Corporate Secretary or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder.

Please consider revising 5.4.b(1), 5.4.b(2), 5.4.b(3) and 5.4.b(4) to read as follows: “5.4.b(1) Certified true copy of its latest GIS, stamped “received” by the SEC or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The certification may come from either the SEC or its equivalent in a foreign country, or the entity’s corporate secretary or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder. If it comes from the entity’s corporate secretary, the

In case of equivalent documents, the duly authorized representative shall certify under oath and notarized that the documents submitted are the equivalent of Philippine incorporation documents, which shall thereafter be authenticated by a Philippine consular or embassy official. The certification from the government authority equivalent of SEC shall be submitted on the Bid Submission Date.



certificationwhich must be under oath and notarized…” “5.4.b(2) Certified true copy of SEC Certificate of Incorporation/Registration or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The SEC Certificate of Incorporation or the equivalent document for a foreign entity,must may be certified by the SEC or its equivalent in a foreign country. or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder.” “5.4.b(3) Certified true copy of latest Articles of Incorporation or Articles of Partnership or for



a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The Articles of Incorporation may be certified either by the SEC or its equivalent in a foreign country, or by the entity’s corporate secretary. or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder, which All certifications by the entity’s corporate secretary must be under oath and notarized.” “5.4.b(4) Certified true copy of latest By-Laws or for a foreign entity, the equivalent document submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the



foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. The By-Laws may be certified either by the SEC or its equivalent in a foreign country, or by the entity’s corporate secretary. or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate resolutions, of such company or by the authorized representative of the Prospective Bidder, whichAll certifications by the entity’s corporate secretary must be under oath and notarized. For the foregoing documents, if the appropriate government agency equivalent to the SEC in the foreign country does not stamp “received” or acknowledge the said documents, the entity’s corporate secretary. or an equivalent officer, or by a duly authorized officer or person, whether under law, corporate by-laws or corporate



resolutions, of such company or by the authorized representative of the Prospective Bidder, which may attest to such fact in a notarized certification.”

37 Qualification Documents

ITPB, Section 5.4.b (Qualification Documents) vis-à-vis Annex QD-3

Under the ITPB, Annex QD-3 requires the submission by a foreign entity listed in the Business Plan of a certified true copy of the equivalent of the relevant document (i.e. the General Information Sheet, SEC Certificate of Incorporation, Articles of Incorporation and By-Laws) submitted to and acknowledged by the appropriate government agency equivalent to the SEC in the foreign country where the foreign entity was registered for recognition or creation of its juridical personality or capacity. In this regard, where the legal procedure and practice under a foreign jurisdiction is to appear before a notary public to form a corporation or to cause any amendment to the constitutive documents of a

In the particular circumstance cited, the notary public must issue a certification that the original document of the document attached to such certification has been filed with the notary public. Such certification must be notarized and authenticated. Together with such certification from the notary, the authorized representative of the foreign entity must also submit a certification to (a) attest that there is no requirement to submit such document to the appropriate government agency in such foreign country and (b) providing such information required to be indicated in these SEC documents. Such document is only required to be certified by the authorized representative of the foreign entity, under oath



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 documents/certifications that are required to be authenticated by the relevant Philippine consular official in 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.

documents/certifications that 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 documents/certifications that 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 Philippine consular official in 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

ITPB, Section 4.2.a.(1) (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


The subject provision provides in part that the entity or entities whose completed projects are being submitted to 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


The subject provision provides in part that “the entity or entities whose completed projects are being submitted to 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


The subject provision provides in part that “the entity or entities whose completed projects are being submitted to 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 Consortium Member or any of 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 employed or engaged by the Prospective Bidder itself, Consortium Member or any of 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 employed or engaged by the Prospective Bidder itself, Consortium Member or any of 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 employed or engaged by the Prospective Bidder itself, 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 Qualification Documents 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 Technical Qualification 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 Technical Qualification Requirements through nominated entities or Affiliate/s of such nominated entities, as provided below.

57 Clause 4.2.a.1 – DD Experience

Can DD consortium member use the same project for illustrating its experience under categories (a), (b), and (c)?

Yes.

58 Clause 4.2.a.1 – DD 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 Technical Qualification 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 Supplemental Notices) 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 Supplemental Notices)

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 Qualification Documents 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 Qualification Documents 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 Qualification Documents 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.