Post on 30-Jan-2020
transcript
ANNEX A
1
# 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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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.
6. Revised ITPB, II-
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
ANNEX A
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# Reference Question PBAC Response
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…”
7. Revised ITPB, II-
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.
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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%.
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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.]
ANNEX A
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# Reference Question PBAC Response
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
ANNEX A
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# Reference Question PBAC Response
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
ANNEX B
16
# Section Original Provision Amended Provision
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
ANNEX B
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# Section Original Provision Amended Provision
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.