ANNEX A - DOTrdotr.gov.ph/images/PPP/2014/AirportDevt... · Incorporation issued by the Philippine...

ANNEX A

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# Reference Question PBAC Response

1. Revised ITPB, I-

03

Presently, an “Auditor” means an external independent

auditor who must be a reputable international auditing

company with presence and operations in at least ten

jurisdictions, including the Philippines. For the purpose of

determining presence and scope of operations, an auditor’s

partner firms in other jurisdictions will be considered.

Given that there are only a handful of international auditing

companies with partner firms in the Philippines, please

consider revising the definition of “Auditor” to mean only “a

reputable international auditing company with presence and

operations in at least ten jurisdictions” (i.e. without the

requirement of Philippine presence) with respect to

certificates of Auditors being provided by foreign

companies/entities.

The requested revision is denied.

2. Revised ITPB, II-

09 (2) (a)

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.

It is confirmed that

- where the current ISO 9001 certification

and/or ISO 14001 certification of a proposed

Construction Contractor is due to expire,

- but the said Construction Contractor has

already completed the recertification process,

- and the relevant certificate/s have not yet been

issued due to administrative bureaucracy on

the part of the issuing body, which is outside

the control of the proposed Construction

Contractor,

a Prospective Bidder may, with respect to the

requirement that its proposed Construction

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Contractor/s possess valid ISO 9001 and 14001

certifications, submit the latest ISO 9001 and/or

14001 certification/s of the proposed Construction

Contractor, provided, that (a) such certification/s

were valid for a period ending no earlier than 31

March 2015, and (b) the submission is

accompanied by a certification issued by the

relevant certifying entity that the Construction

Contractor has completed the recertification

process and has been recommended for

certification.

3. Revised ITPB, III

(4)

Please consider allowing, in case of a foreign company, the

copies of its equivalent incorporation documents (i.e., the

Certificate of Incorporation, Articles of Incorporation and

By-Laws) 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 an duly authorized officer or person, whether

under law, corporate by-laws or corporate resolutions, of

such company.

As stated in SBB No. 06-2015, Annex A, Item 5,

“Corporate Charter Documents:”

For foreign corporations, partnerships, and other

juridical entities, either of the following may be

submitted with respect to the concerned foreign

entities:

- copy of equivalent documents submitted to and

acknowledged by the appropriate government

agency in the concerned foreign entity’s home

country, certified as a true duplicate copy by

(a) the relevant government agency, or (b) a

notary public or equivalent person or entity in

the concerned foreign entity’s home country,

or (c) the corporate secretary of the relevant

entity (or equivalent officer), or (d) the

authorized representative of the concerned

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Prospective Bidder;

- in case the equivalent documents are not

required to be submitted and/or acknowledged

by any government agency in the concerned

foreign entity’s home country, a copy of such

equivalent documents certified as a true

duplicate copy by (a) a notary public or

equivalent person or entity in the concerned

foreign entity’s home country, or (b) the

corporate secretary of the relevant entity (or

equivalent officer), or (c) the authorized

representative of the concerned Prospective

Bidder, accompanied by a certification issued

by the concerned entity’s corporate secretary

(or equivalent officer) or the concerned

Prospective Bidder’s authorized representative,

stating that such equivalent documents are not

required to be submitted and/or acknowledged

by any government agency in the concerned

foreign entity’s home country.

The certifications referred to above must be under

oath and notarized, unless the certifications were

issued by a government agency or a notary public

or equivalent person or entity in the concerned

foreign entity’s home country.

If any certification is issued or notarized outside

the Philippines, it must be authenticated before a

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Philippine consular official at the Philippine

consulate having jurisdiction over the place of

issue.

4. Revised ITPB,

Annex QD-2 (b)

(9)

Please confirm that for entities listed outside the Philippines,

the copy of the equivalent public Ownership Report and List

of Top 100 Stockholders to be submitted may be certified as

true and correct by such foreign 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.

Please see the amendment to the Revised ITPB in

Item 1 of Annex B below.

5. Revised, ITPB III

(4)

Please confirm that a document showing the due and valid

incorporation as well as continuous existence of a company

issued by the equivalent of the Philippine Securities and

Exchange Commission (“SEC”) in such foreign country is

sufficient to be considered “an equivalent” of the Certificate

of Incorporation issued by the Philippine SEC.

It is confirmed that a document showing the due

and valid incorporation as well as the continuous

existence of a company issued by the equivalent of

the Philippine SEC in a foreign jurisdiction will be

considered as an equivalent of the Certificate of

Incorporation issued by the Philippine SEC.


07

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 and

It is confirmed that the submission of the certified

English document, which is legalized, and to

which an original or a certified copy of the

document written in a foreign language is

attached, will be considered as sufficient

compliance with the requirements in the ITPB that

(1) “[a]ll documents or certifications … executed

outside of the Philippines shall also be

authenticated before a Philippine consular official

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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 or certifications … executed outside of the

Philippines shall also be authenticated before a Philippine

consular official at the Philippine consular office having

jurisdiction over 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, certified by the

translator that the English translation is a complete and

accurate translation of the original. The certification issued

by the translator shall be authenticated by a Philippine

consular official at the Philippine consular office having

jurisdiction over the place where the certification is

issued…”

at the Philippine consular office having

jurisdiction over 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, certified by the translator

that the English translation is a complete and

accurate translation of the original. The

certification issued by the translator shall be

authenticated by a Philippine consular official at

the Philippine consular office having jurisdiction

over the place where the certification is issued…”


07

a. Section II-07 (third paragraph) provides:

If a document was issued by a foreign authority, the

Prospective Bidder should also submit a certified true

copy of such document issued by such authority, in

addition to the authentication by the appropriate

Philippine consular official

It is confirmed that it would be sufficient to submit

either the original or a certified true copy of the

foreign document, in each case complying with

the required authentication before a Philippine

consular official at the Philippine consular office

having jurisdiction over the place of issue or

execution.

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while Section II-07 (second paragraph) provides in part:

All documents or certifications issued by foreign

authorities or executed outside of the Philippines shall

also be authenticated before a Philippine consular

official at the Philippine consular office having

jurisdiction over the place of issue or execution. Xxx

The foregoing provisions may be construed as requiring that,

if a foreign document is issued by a foreign authority, a

certified true copy of such document (including the required

authentication) should be submitted in addition to the original

document (including the required authentication), which is

duplicative and unnecessary.

Thus, please confirm our understanding that it would be

sufficient to submit the original or the certified true copy of

the foreign document, in each case complying with the

required authentication.

Please see the amendment to the Revised ITPB in

Item 2 of Annex B below.

8. Revised ITPB,

Annex QD-3

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.

It is confirmed that:

- where the legal procedure and practice in 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

- where the notary public retains the original of

the corporate documents so notarized,

then the submission of an original affidavit or

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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 an

original affidavit or document issued by the notary public or

a certified true copy of such issuance by the notary public, in

each case 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 document is authenticated by the

Philippine embassy or consular official, sufficiently complies

with the provisions of Section III.4 in relation to Annex QD-

3.

document issued by the notary public or a

certified true copy of such document certified by

the notary public, in each case setting forth the

relevant details of a corporation (including details

typically found in the Certificate of Incorporation,

Articles of Incorporation and By-laws under

Philippine law), which document is authenticated

before a Philippine consular official at the

Philippine consulate having jurisdiction over the

place of issue, will be considered as compliant

with the provisions of Section III (4), in relation

to Annex QD-3, of the Revised ITPB.

9. ITPB, II-09 (2)

(a); SBB 04-2015,

Annex A, Item 22

Please confirm that the pooling of capital costs for Eligible

Projects (to meet the required total capital costs of PhP10.0

Billion) by the following are allowed:

a) an Affiliate of a Consortium Member (''CM A'') and an

Affiliate of another Consortium Member (''CM B");

b) a Consortium Member ("CM A") and an Affiliate of

another Consortium Member ("CM B"); or

c) a Consortium Member ("CM A") and an another

Consortium Member ("CM B");

For the purpose of fulfilling the Development

Experience requirement, the pooling of capital

costs for Eligible Projects of the following is

allowed:

a) an Affiliate of a Consortium Member (''CM

A'') and an Affiliate of another Consortium

Member (''CM B"); or

b) a Consortium Member ("CM A") and an

Affiliate of another Consortium Member ("CM

B"); or

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provided that, in all cases, the interest of either CM A or CM

B, or the aggregate interest of CM A and CM B, in the

Consortium is at least 33 1/3%.

II-09 (2) (a) of the ITPB states that Development Experience

may be fulfilled by,

if the Prospective Bidder is a Consortium, a Consortium

Member having at least 33 1/3% interest in the

Consortium, or such Consortium Member's Affiliate

(Emphasis supplied)

In this regard, we note that, while the question to which the

PBAC responded in Item 22, Annex A of SBB 04-2-15

contemplates the pooling of capital costs by a Consortium

Member and such Consortium Member's Affiliate, the

response of the PBAC in said Item 22 nevertheless

acknowledges or confirms that the Development Experience

requirement may be fulfilled or satisfied by more than one

entity (i.e., a Consortium Member and such Consortium

Member's Affiliate).

We note also that III(6)(2)(i) of the ITPB provides that

Development Experience (using the form prescribed in

Annex QD-5) is to be submitted by

the entity or entities which fulfill the Development

Experience Requirement in Section II- 09 ... (Emphasis

supplied)

c) a Consortium Member ("CM A") and another

Consortium Member ("CM B");

provided that, in all cases, the interest of each of

CM A and CM B in the Consortium is at least 33

1/3%.

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Furthermore, we note that there is no express prohibition in

the ITPB (as revised) against proposing more than one entity

to meet the

Development Experience. We believe that these support the

confirmation provided by the PBAC that the Development

Experience may be fulfilled by more than one entity.

Given the foregoing, we see no justifiable reason why the

pooling of capital costs contemplated in the situations listed

in (a), (b), and (c) above should not be similarly allowed.

10. Revised ITPB,

Annex QD-10B

Under the law of certain foreign jurisdictions, there is no

position such as Corporate Secretary, and “representative

director” has the authority to represent, do any and all

judicial and non-judicial acts in connection with the

operation of a company.

In view of the above, please advise whether an Authorized

Representative of a company, authorized by the company’s

Representative Director as evidenced by a Power of

Attorney, can approve the resolutions set out in Annex QD-

10B. Also, please advise whether Annex QD-10B can be

revised accordingly.

[Cited revisions were omitted.]

For the purpose of completing Annexes QD-10A

or QD-10B, the resolutions set out under

Paragraph 3 should generally be approved by the

relevant entity’s Board of Directors (or its

equivalent) – i.e., the “Approving Authority”

should generally be the Board of Directors (or its

equivalent).

Where the laws, corporate charter, and/or

corporate practice applicable to an entity make

obtaining approval from the Board of Directors (or

its equivalent) unnecessary, the resolutions set out

under Paragraph 3 may be approved by another

Approving Authority (e.g., an Authorized

Representative), provided, that (a) Annex QD-10A

or QD-10B is accompanied by a certification

issued by the concerned entity’s corporate

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secretary (or equivalent officer) or the concerned

Prospective Bidder’s authorized representative,

explaining in sufficient detail why (a.i) an

approval from the Board of Directors (or its

equivalent) cannot be obtained, and (a.ii) the

approval of the indicated Approving Authority

(e.g., Authorized Representative) is sufficient

based on the corporate charter of the relevant

entity, and (b) the foregoing certificate should be

accompanied by certified true copies of corporate

charter and other corporate documents which

support the certification.

The above certification must be under oath and

notarized, or if the certification is issued or

notarized outside the Philippines, it must be

authenticated before a Philippine consular official

at the Philippine consulate having jurisdiction over

the place of issue.

The certified true copy of the corporate charter

and other corporate documents which are

submitted to support the certification should be

issued pursuant to the requirements in SBB No.

06-2015, Annex A, Item 5, “Corporate Charter

Documents.”

In the referenced scenario, the resolutions in

Paragraph 3 of Annex QD-10B may be approved

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by an Authorized Representative of Company X,

which Authorized Representative was authorized

pursuant to a Power of Attorney issued by

Company X’s Representative Director, provided,

that:

- Annex QD-10B is accompanied by a duly

notarized/authenticated certification issued by

Company X’s corporate secretary (or

equivalent officer) or the concerned

Prospective Bidder’s authorized

representative;

- The certification should explain in sufficient

detail why an approval from Company X’s

Board of Directors (or its equivalent) cannot

be obtained;

- The certification should explain in sufficient

detail why the approval of the Authorized

Representative is sufficient based on the

corporate charter of Company X; and

- The certification should be accompanied by

certified true copies of Company X’s

corporate charter and other corporate

documents which support the certification.

With respect to who can issue Annex QD-10A or

QD-10B, such should generally be issued by the

relevant entity’s Corporate Secretary or equivalent

officer. In the above case, Annex QD-10A or QD-

10B may be issued by Company X’s Authorized

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Representative.

To illustrate the permitted revisions to Annex QD-

10B with respect to the referenced scenario,

Annex QD-10B may be revised to read as follows:

“I, (name of Authorized Representative), after

having been duly sworn according to law, hereby

depose and state that:

1. I am a (*) citizen, of legal age and a resident of

(*);

2. I am the duly appointed Authorized

Representative of (Company X) (the “Firm”), a

corporation/partnership/other juridical entity

organized and existing under and by virtue of the

laws of (*).

3. Pursuant to a Power of Attorney issued to me by

the Firm dated (*) and signed by (*) as

Representative Director, an original / certified true

copy of which is herein attached, I hereby certify

that I have approved the following resolutions:

[All required resolutions should be retained.]

[Instead of “RESOLVED,” the word

“APPROVED” may be used.]

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1. Attached to this are the following:

a. A duly notarized/authenticated certification

issued by the Firm’s corporate secretary

(or equivalent officer) or the concerned

Prospective Bidder’s authorized

representative explaining in sufficient

detail [i] why an approval from the Firm’s

Board of Directors (or its equivalent)

cannot be obtained for the above

resolutions, and [ii] why an approval from

myself as the Firm’s Authorized

Representative is sufficient based on the

Firm’s corporate charter; and

b. Certified true copies of the Firm’s

corporate charter and other corporate

documents which support the foregoing

certification.

[The authority of the Authorized Representative

should be clearly demonstrated to arise / come

from / be traceable to the relevant entity’s

corporate charter. For example, the attached

documents should show a primary delegation from

the corporate charter to the Board of Directors, a

sub-delegation from the Board to the

Representative Director, and a further sub-

delegation from the Representative Director to the

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Authorized Representative.]

[The original paragraphs 4 and 5 are re-numbered

accordingly.]

ANNEX B: Amendments and Clarifications to the Revised ITPB

15

# Section Original Provision Amended Provision

1. Annex QD-2

(b)(9)

For entities listed on the Philippine Stock Exchange

(“PSE”), the Prospective Bidder must submit the listed

entry’s latest Public Ownership Report and List of Top

100 Stockholders, as submitted to the PSE. The

information in such Report and List must be as of a date

no earlier than 31 December 2014. Shares held by PCD

Nominee may be lumped together in the List of Top 100

Stockholders.

For entities listed outside the Philippines, the

Prospective Bidder must state where the entity is listed,

and must submit the equivalent document/s that is/are

submitted to the listed entities’ public or private

regulator. The most recent submission to such regulator

must be submitted, provided, that such submission

contains information as of a date no earlier than 31

December 2014.

For entities listed on the Philippine Stock Exchange

(“PSE”), the Prospective Bidder must submit the listed

entry’s latest Public Ownership Report and List of Top

100 Stockholders, as submitted to the PSE. The

information in such Report and List must be as of a date

no earlier than 31 December 2014. Shares held by PCD

Nominee may be lumped together in the List of Top 100

Stockholders.

For entities listed outside the Philippines, the Prospective

Bidder must state where the entity is listed, and must

submit the equivalent document/s that is/are submitted to

the listed entities’ public or private regulator. The most

recent submission to such regulator must be submitted,

provided, that such submission contains information as

of a date no earlier than 31 December 2014.

In case of entities listed outside the Philippines whose

fiscal year and/or reporting compliance period is/are such

that the entity’s most recent submission to its regulator is

as of a date earlier than 31 December 2014, and such

entity is compliant with all applicable reporting laws and

regulations, such listed entity may submit its most recent

submission of the equivalent documents, provided, that

(a) such submission contains information as of a date no

earlier than 31 December 2013, and (b) the submission is

accompanied by a certification issued by the concerned

listed entity’s corporate secretary (or equivalent officer)

or the concerned Prospective Bidder’s authorized

representative, stating that the most recent submission of

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the concerned listed entity to its regulator is dated earlier

than 31 December 2014, and the reason/s therefor. The

certification must be under oath and notarized, or if the

certification is issued or notarized outside the

Philippines, it must be authenticated before a Philippine

consular official at the Philippine consulate having

jurisdiction over the place of issue.

For entities listed outside the Philippines, the Prospective

Bidder must state where the entity is listed, and must

submit the equivalent document/s that is/are submitted to

the listed entities’ public or private regulator. The most

recent submission to such regulator must be submitted,

provided, that such submission contains information as

of a date no earlier than 31 December 2014.

The required copy of a listed entity’s latest Public

Ownership Report and List of Top 100 Stockholders, or

their equivalent (for entities listed outside the

Philippines), should be certified as true duplicate copies

by the entity’s corporate secretary or equivalent officer.

The certification must be under oath and notarized, or if

the certification is issued or notarized outside the

Philippines, it must be authenticated before a Philippine

consular official at the Philippine consulate having

jurisdiction over the place of issue.

2. II-07 If a document was issued by a foreign authority, the

Prospective Bidder should also submit a certified true

If a document was issued by a foreign authority, the

Prospective Bidder should also submit either the original

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copy of such document issued by such authority, in

addition to the authentication by the appropriate

Philippine consular official.

or a certified true copy of such document, issued by such

authority, in addition to the authentication and

authenticated by the appropriate Philippine consular

official.

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