query no. topic name of document and query/comment...
TRANSCRIPT
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
corporation and, in such case,
the notary public retains the
original of the corporate
documents so notarized,
please confirm our
understanding that an original
affidavit or document issued
by the notary public setting
forth the relevant details of a
corporation (including details
typically found under the
General Information Sheet,
Articles of Incorporation and
By-Laws under Philippine
law), which original affidavit
or document is authenticated
by the Philippine embassy or
consular official, sufficiently
complies with the provisions
of Section 5.4.d vis-à-vis
Annex QD-3.
and notarized, and thereafter
authenticated by a Philippine
consular or embassy official.
38 Language and
Foreign
Documents/
Authentication
Requirement
Section 3.6.f Section 3.6.f provides that for
purposes of the Pre-
Qualification, the PBAC will
accept photocopies of: (a)
notarized and unauthenticated
/ unconsularized
documents/certifications that
are required to be
authenticated by the relevant
Philippine consular official in
Section 3.6.b; and (b) certified
true copies and
We propose that Section 3.6.f
be revised to read as follows:
For each instance in the ITPB
where authentication by a
Philippine consular official is
required, for purposes of the
Pre-Qualification only, the
PBAC will accept photocopies
of: (a) unnotarizednotarized
and
unauthenticated/unconsularized
Request is denied, but please
note Query Nos. 18 and 19.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
will obtain the required PCAB
license and accreditation
should the Prospective Bidder
be declared the winning
bidder.
42 Design and
Development DD
Experience
ITPB, Section 4.2.a.(1)
(Qualification
Requirements)
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
ITPB, Section 4.2.a.(2)
(Qualification
Requirements)
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,
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
ITPB, Section 4.2.a.(3)
(Qualification
Requirements)
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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:
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
(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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
(“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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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).
The request is denied.
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
The request is denied.
74 General Please provide the Microsoft
Word (.doc) version of the
ITPB and Qualification
Documents.
The request is denied.
H. DEFINITIONS
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.
Query No. Topic Name of Document and
Section # of Document
Query/Comment Proposed Redraft (if any) Response
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.