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FAQ-92

Is it possible for two entities that are affiliated both to participate in the auction?


Two affiliated entities may each be considering bidding in the auction and may separately submit a separate Part 1 Application, unaware that the other is also submitting a Part 1 Application. In the Part 1 Application, each entity will be asked to declare either that 1) it is bidding independently; or 2) it is part of a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction. Each entity would indicate that it is bidding independently given that it is unaware that the other is preparing an application to the auction. Each entity would learn that an affiliated entity is also preparing to submit a bid in the same auction upon seeing the list of Qualified Bidders after having qualified through a successful Part 1 Application.

A Qualified Bidder may submit a Part 2 Application but is not required to do so. If one or both of these affiliated Qualified Bidders subsequently submits a Part 2 Application, it would name the other (i.e., would name the affiliated entity) as a bidder with which it is associated. Whether or not the other Qualified Bidder submits a Part 2 Application is irrelevant to the requirement imposed on the Qualified Bidder that is submitting the Part 2 Application to disclose the association. Furthermore, the Qualified Bidder submitting the Part 2 Application will be asked to make a number of other certifications or to make information disclosures that may be affected by the presence of the associated bidder. In general, Qualified Bidders that are associated with one another are considered as one bidder for the purposes of application of the load caps and for the administration of the auction. It is certainly possible for two affiliated entities to participate both in the same auction. Should both affiliated entities submit a Part 2 Application, the Auction Manager will make a determination on a case-by-case basis of whether the two affiliated entities would be able to bid separately and whether the two affiliated would be considered as one bidder for the application of the load caps.

If instead the two affiliated entities know that the other is preparing a Part 1 Application for the auction so that these entities will have communicated their potential intention to bid to each other, these entities are considered to be bidding as part of a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement (“Arrangement”) pertaining to bidding in the auction. These entities should follow the procedures for entities that have entered into an Arrangement, as described in FAQ-90.



11/21/2017, in Association and Confidential Information Rules.
FAQ-91

FAQ-90 describes how entities that enter into a bidding agreement, joint venture for purposes of the auction, bidding consortium, or other arrangement pertaining to the auction (the “Arrangement” among Entities) participate in the Application Process and submit bids at the auction. The response assumes that it is known which of the Entities participating in the Arrangement would execute the Supplier Master Agreement (and thus would submit to the creditworthiness requirements) should the Entities win tranches at the auction.

How would this process be different if either: the Entities do not know which Entity will execute the Supplier Master Agreement; or: two or more of the Entities participating in the Arrangement intend to execute the Supplier Master Agreement for a portion of the tranches won should they be winners at the auction?


When Entities participate in an Arrangement, it is typical to nominate one Entity to fulfill the creditworthiness requirements and to sign the Master Supplier Agreement. If the Entities participating in the Arrangement are either uncertain as to which Entity will sign the Supplier Master Agreement or if any or all Entities may sign a Supplier Master Agreement, all Entities must submit to the creditworthiness evaluation in the Part 1 Application. All Entities should then submit separate Part 1 Applications, with all required documents, and in the Insert for the Part 1 Application prepared specifically for that purpose, each Entity states that it is NOT bidding independently, each Entity describes the Arrangement, and each Entity names all other Entities that are participating in the Arrangement. In this same Insert, the Authorized Representative of each Entity signs to confirm that the Entity will be subject to the creditworthiness requirements (since the Entity may execute the Supplier Master Agreement should the Entities under the Agreement win at the auction). Each Entity would respond to any request for additional information from the Auction Manager. For example, the Auction Manager may require that the Entities designate a single point of contact for purposes of providing materials related to the auction, including the confidential information needed to submit bids. Each Entity would present its financial information for purposes of a creditworthiness assessment. Assuming that all Entities submit all required materials and respond to all requests for information from the Auction Manager and provide all information requested by the Part 1 Application process, the Entities participating in the Arrangement would qualify as a single bidder (“Joint Bidder”). The Entities participating in the Arrangement would receive a single notification of qualification, and would be designated as a single bidder on the list of Qualified Bidders. However, because at the time of qualification it is not known which Entity or Entities would sign the Supplier Master Agreement, each Entity would receive a separate creditworthiness assessment that would specify the pre-auction security that the Entity must provide with the Part 2 Application. Please note that each Qualified Bidder will consider all Entities named on the list of Qualified Bidders when making their certifications in the Part 2 Application, including all Entities participating in the Arrangement.

At the Part 2 Application stage, each Entity to the Arrangement would make the certifications of the Part 2 Application or make appropriate information disclosures. The Entity responsible for the creditworthiness requirements and for signing the Supplier Master Agreement would be the Entity providing the pre-auction security required with the Part 2 Application and would be the Entity submitting the Part 2 Application. If the issue of which Entity is to sign the Supplier Master Agreement and is to be subject to the creditworthiness requirements is still not resolved by the Part 2 Application deadline, or should multiple Entities intend to enter into the Supplier Master Agreement upon winning at the auction, each Entity participating in the Arrangement would submit a Part 2 Application. In each Part 2 Application, the indicative offer and maximum preliminary interest (if applying to the BGS-RSCP Auction) would be expected to reflect the interest of Joint Bidder and thus would be expected to be identical in the Part 2 Application submitted by each Entity. The indicative offer for Joint Bidder is subject to the same statewide load cap as any other single bidder in the auction. The maximum preliminary interest of Joint Bidder, if applying to the BGS-RSCP Auction, is subject to the same EDC load caps as any other single bidder in the auction. Each Entity would post the entire amount of pre-auction security required for the indicative offer presented at the maximum starting price. The amounts of pre-auction security for each Entity participating in the Arrangement may be different depending on the creditworthiness assessment of the particular Entity but these amounts should all be based on the same indicative offer at the maximum starting price valid for Joint Bidder. Each Entity will separately agree that the submission of any bid creates a binding and irrevocable offer to provide service under the terms of the Supplier Master Agreement. Each Entity would additionally be required to agree that upon conclusion of the auction, Joint Bidder would provide to the Auction Manager any division among the Entities of tranches won by Joint Bidder for purposes of signing the Supplier Master Agreement. The Entities participating in the Arrangement would receive a single notification of registration, would appear as a single bidder on the list of Registered Bidder, and would receive a single confidential information packet with information for the submission of bids.

If Joint Bidder wins at the auction, it may be the case that the issue of which Entity is to sign the Supplier Master Agreement has not been resolved at the conclusion of the auction or that multiple Entities intend to enter into the Supplier Master Agreement. In accordance with their undertakings at the Part 2 Application stage, the Entities participating in the Arrangement are entirely responsible for providing to the Auction Manager, within one business day of the close of the auction, the names of the Entities that will sign the Supplier Master Agreement, and the number of tranches that each such Entity will serve. Any failure of the Entities to agree on a division among themselves of the tranches won by Joint Bidder may result in the EDCs drawing upon the Pre-Auction Letters of Credit of any or all Entities participating in the Arrangement. Should the Board approve the auction results, each such Entity will be responsible for signing the Supplier Master Agreement and meeting the creditworthiness requirements within three (3) business days of the Board decision. The EDCs may draw upon the Pre-Auction Letter of Credit of an Entity that fails to abide by these obligations. When the contract execution process is successfully concluded, the Auction Manager will return the Pre-Auction Letter of Credit separately to each Entity participating in the Arrangement according to any specific instructions provided by that Entity in the Part 2 Application.



11/21/2017, in Association and Confidential Information Rules.
FAQ-90

Two entities enter into a bidding agreement, joint venture for purposes of the auction, bidding consortium, or other arrangement pertaining to the auction. Can you please explain how these entities would typically proceed through the Application Process and how they would submit bids in the auction? Do both entities submit to the Application Process and submit bids separately?


Although such arrangements can take a variety of forms and the Auction Manager may require different procedures in specific circumstances, entities that bid jointly through a bidding agreement, joint venture for purposes of the auction, bidding consortium, or other arrangement pertaining to the auction (“the Arrangement”) would typically proceed as follows through the Application Process and proceed as follows for the submission of bids.

Only the entity that intends to execute the Supplier Master Agreement should the entities participating in the Arrangement win at the auction (“Entity A”) submits the Part 1 Application. In the Insert for the Part 1 Application prepared specifically for that purpose, Entity A states that it is NOT bidding independently, Entity A describes the Arrangement, and Entity A names the other entity that is participating in the Arrangement. In this same Insert, the Authorized Representative of Entity A signs to confirm that Entity A will be the entity that will fulfill the creditworthiness requirements (since it is the entity that would execute the Supplier Master Agreement should the entities participating in the Agreement win at the auction). The applicable Insert is Insert #P1-8 if Entity A is applying to participate only in the BGS-RSCP Auction; Insert #P1-14 if Entity A is applying to participate only in the BGS-CIEP Auction; or Insert #P1-11 if Entity A is applying to participate in both the BGS-RSCP Auction and the BGS-CIEP Auction, in which case Entity A notes in Insert #P1-11 whether the arrangement pertains to the BGS-RSCP Auction, or to the BGS-CIEP Auction, or to both Auctions. An Arrangement is specific to a particular Auction; it is possible, for example, for two entities to be participating in an Arrangement that only pertains to one Auction (say the BGS-RSCP Auction) and for one of the two entities to apply to bid independently in the other Auction (i.e., the BGS-CIEP Auction).

Please note that this same procedure for the Part 1 Application would be followed if more than two entities were participating in the Arrangement.

If the Part 1 Application for an auction complied with all requirements, both entities participating in the Arrangement qualify as a single bidder (“Joint Bidder”) for that auction. Joint Bidder receives a single notification of qualification naming the two entities. With the notification of qualification, each Qualified Bidder receives a list of Qualified Bidders for that auction. The list of Qualified Bidders has a single entry for Joint Bidder, naming both entities participating in the Arrangement (e.g., the entities typically are listed as “Entity A and Entity B” on a single line or in some other manner that makes it clear that Entity A and Entity B have qualified as a single bidder).

In the Part 2 Application for a given auction, each entity on the list of Qualified Bidders makes certifications for compliance with the Association and Confidential Information Rules (or makes appropriate information disclosures) using the list of all entities on the list of Qualified Bidders in that auction. Thus, each Qualified Bidder is asked whether it can make each certification with respect to Entity A and whether it can make each certification with respect to the other entity participating in the Arrangement, “Entity B”. The indicative offer of Joint Bidder is subject to the same statewide load cap as any other single bidder in the auction. For the BGS-RSCP Auction, the preliminary interest of Joint Bidder is subject to the same EDC load caps as any other single bidder in the auction.

Entity A submits the Part 2 Application including any required pre-auction security based on Entity A’s creditworthiness assessment at the Part 1 Application stage and on the indicative offer of Joint Bidder. For the required Pre-Auction Letter of Credit in an auction, Joint Bidder has the following options: (i) Entity A submits a single Pre-Auction Letter of Credit that names Entity A and Entity B as the “Bidder”; or (ii) Entity A names Entity A as the “Bidder” strictly for the purposes of the Pre-Auction Letter of Credit and the Authorized Representative from Entity A acknowledges in writing that the EDCs may draw upon the letter if Entity B has made a material omission or misrepresentation in the Part 1 Application or the Part 2 Application submitted to participate in the auction or has violated the Auction Rules; or (iii) Entity A submits a Pre-Auction Letter of Credit that names Entity A as the “Bidder” and Entity B also submits a Pre-Auction Letter of Credit that names Entity B as the “Bidder”, each letter of credit being for the full required amount (i.e., $500,000 per tranche of Joint Bidder’s indicative offer at the maximum starting price for the BGS-RSCP Auction or $375,000 per tranche of Joint Bidder’s indicative offer at the maximum starting price for the BGS-CIEP Auction). Entity A submits any additional pre-auction security that is required. Entity A submits a letter of intent to provide a guaranty if it relies on the financial standing of a guarantor and/or submits a letter of reference from its financial institution if required. These documents refer to Entity A only as Entity A fulfills the creditworthiness requirements and would be the signatory to the Supplier Master Agreement should Joint Bidder win at the auction. Lastly, the Part 2 Application for Joint Bidder must include Entity B’s certifications for compliance with the Association and Confidential Information Rules (or appropriate information disclosures).

If the Part 2 Application for an auction complied with all requirements, both entities participating in the Arrangement register as Joint Bidder for that auction. Joint Bidder receives a single notification of registration naming the two entities. With the notification of registration, each Registered Bidder receives a list of Registered Bidders for that auction. The list of Registered Bidders has a single entry for Joint Bidder, naming both entities participating in the Arrangement. The notification of registration for Joint Bidder includes the initial eligibility for Joint Bidder in the auction.

The Auction Manager provides to Joint Bidder a single confidential information packet, including a single Login ID and password, for purposes of participating in the Trial Auction and for submitting bids in the auction. Joint Bidder submits a single bid each round. Entities A and B are entirely responsible for agreeing among themselves on all logistics associated with the submission of bids, including the bidding location and the point of contact for the Auction Manager, it being understood that the Auction Software may not function properly when more than one individual is logged in as a bidder. Entity A and Entity B can communicate freely regarding their bidding strategy as well as regarding any other matter related to the auction for which they have declared the Arrangement to the Auction Manager.

If Joint Bidder does not win any tranches in the auction, the Pre-Auction Letter of Credit is returned to Entity A and cancelled as soon as practicable after the Board decision. If Joint Bidder is a winner at the auction and the Board approves the auction results, the Auction Manager provides to the EDC(s) the contact information for representatives of Entity A for execution of the Supplier Master Agreement. The Pre-Auction Letter of Credit is returned to Entity A and cancelled as soon as practicable after all EDCs with whom Entity A is executing a Supplier Master Agreement have confirmed that Entity A has executed the Supplier Master Agreement and met the creditworthiness requirements of the Supplier Master Agreement (including the posting of any necessary security). The Auction Manager follows any special instructions for return of the Pre-Auction Letter of Credit provided in the Part 2 Application.



11/21/2017, in Association and Confidential Information Rules.
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FAQ-89

Do the load caps apply jointly to entities that enter into bidding agreements, joint ventures for the purpose of bidding in the auction, bidding consortiums, or other arrangements pertaining to bidding in the auction?


Yes, all entities in any such arrangements together cannot bid or win more than the applicable load caps.



11/21/2017, in Association and Confidential Information Rules.
FAQ-88

An entity enters into a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in an auction and the entity becomes a qualified bidder. If the bidding partner subsequently withdraws its support at a later time, would the entity still be a qualified bidder able to continue participation in the Auction Process?


Any bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in an auction must be disclosed in the Part 1 Application using the Insert prepared for this purpose. Any such agreement cannot be first disclosed at a later point in time. If the parties to this agreement qualify, the parties do so as a single “Joint Bidder”. Joint Bidder receives a single notification of qualification naming the entities that are parties to the agreement. The list of Qualified Bidders included with the notification of qualification has a single entry for the Joint Bidder, naming all entities participating in the Arrangement (e.g., the entities are listed as “Entity A and Entity B” on a single line or in some other manner that makes it clear that the entities have qualified as a single joint bidder).

Thus it is the Joint Bidder that becomes the Qualified Bidder able to submit a Part 2 Application; each party separately does not have the status of a Qualified Bidder and cannot continue in the Auction Process separately. Status as a Qualified Bidder cannot be rescinded or changed after the Auction Manager has issued the Notification of Qualification. In particular, the Qualified Bidder status of the Joint Bidder cannot be assigned or transferred to one of the parties to the agreement. Applicants certify in their Part 1 Application that they will not assign or transfer their status as a Qualified Bidder to another party.

For the Joint Bidder to continue in the Auction Process after the Joint Bidder has become a Qualified Bidder, the entity that presented its financial information for creditworthiness purposes (“Entity A”) submits the Part 2 Application including any required pre-auction security. For the Pre-Auction Letter of Credit, Joint Bidder has the following options: (i) Entity A submits a single Pre-Auction Letter of Credit that names all parties to the agreement as the “Bidder”; or (ii) Entity A names Entity A as the “Bidder” strictly for the purposes of the Pre-Auction Letter of Credit and the Authorized Representative from Entity A acknowledges in writing that the EDCs may draw upon the letter of credit if any of the parties to the agreement have made a material omission or misrepresentation in the Part 1 Application or the Part 2 Application submitted to participate in the auction or has violated the Auction Rules; or (iii) each party to the agreement separately submits a Pre-Auction Letter of Credit for the full required amount. Entity A submits any additional pre-auction security that is required. The Part 2 Application for Joint Bidder must include the certifications for compliance with the Association and Confidential Information Rules (or appropriate information disclosures) from each party to the agreement.



11/21/2017, in Association and Confidential Information Rules.
FAQ-87

We understand that bidding agreements must be fully disclosed to the Auction Manager before the auctions start. Can a bidder enter into a bidding agreement with another entity at any point during the Auction Process as long as such disclosure is made?


No. Any bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, must be fully disclosed in the Part 1 Application. This implies that any such arrangement must be entered into before the Part 1 Applications are received and cannot be entered into later in the Auction Process. In the Part 2 Application, a Qualified Bidder will be required to certify that, other than agreements disclosed in the Part 1 Application, the Qualified Bidder has not entered and will not enter into any agreement regarding bidding or participation in the auction.



11/21/2017, in Association and Confidential Information Rules.
FAQ-86

When do applicants disclose bidding agreements to the Auction Manager?


Bidding agreements are disclosed in the Part 1 Application.



11/21/2017, in Association and Confidential Information Rules.
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FAQ-85

Entity A’s parent company has plans to merge or to combine with another company. We anticipate that the merger will receive all necessary regulatory approvals but only after bidders are qualified to participate in the auction pursuant to a successful Part 1 Application and potentially before Part 2 Applications are due. Can Entity A submit a Part 1 Application with its parent as Guarantor if it is anticipated that its parent will cease to exist as a result of the merger?


If it is possible that the parent and Guarantor of Entity A could cease to exist during the Auction Process, Entity A should apply to the auction under its own financial standing. There is no mechanism to update financial information or to change the identity of the Guarantor once it is submitted in the Part 1 Application and once a creditworthiness assessment has been made. If Entity A applies under the financial standing of its parent and Guarantor, the Auction Manager will communicate to Entity A through the notification of qualification that Entity A is required to submit a Pre-Auction Letter of Credit and that Entity A’s named parent and Guarantor is required to submit a letter of intent to provide a guaranty for a specific amount that is determined on the basis of the creditworthiness assessment of the named parent and Guarantor. Entity A could be in a situation where it cannot fulfill the pre-auction security requirements of the Part 2 Application because its (now defunct) parent and Guarantor cannot provide a letter of intent to provide a guaranty.

Entity A should instead proceed through the Part 1 Application relying on its own financial standing. Entity A will be required to submit a Pre-Auction Letter of Credit and possibly a letter of reference from a bank (if its unsecured credit line under the terms of the Supplier Master Agreement is not sufficient to support its indicative offer). Entity A would be able to fulfill the pre-auction security requirements if the merger occurs as anticipated and its parent and Guarantor ceases to exist or becomes another entity. If Entity A is successful at the auction, Entity A can subsequently request of the EDC a creditworthiness assessment for an entity that would serve as Guarantor and that would fulfill the creditworthiness requirements of the Supplier Master Agreement.



11/21/2017, in Association and Confidential Information Rules.
FAQ-84

Entity A’s parent company has plans to merge or to combine with another company. This other company has a subsidiary, Entity B, which is also active in trading and marketing power in PJM. Suppose that:

a) Entities A and B become Qualified Bidders in the auction;

b) both Entities submit a Part 2 Application in which each certifies that it is not associated with the other; and

c) the merger closes after both Entities have submitted the Part 2 Application.

Would the Entities be able to submit supplemental information to the Auction Manager and possibly register to bid in the auction if the merger closes before the Part 2 Application deadline?


Yes. When the merger closes, the Entities will become associated. If the association is created after Entities A and B have submitted their Part 2 Applications but before the Part 2 Application deadline, the Auction Manager would consider any supplemental information submitted by Entities A and B as a consequence of the creation of the association.



11/21/2017, in Association and Confidential Information Rules.
FAQ-83

Entity A’s parent company has plans to merge or to combine with another company. This other company has a subsidiary, Entity B, which is also active in trading and marketing power in PJM. Our understanding is that if:

a) Entities A and B become Qualified Bidders in the auction;

b) both Entities submit a Part 2 Application in which each certifies that it is not associated with the other; and

c) the merger closes after both Entities are notified that they are registered to bid in the auction pursuant to a successful Part 2 Application but before the auction starts;

then Entities A and B become associated in violation of their certifications in the Part 2 Application and Entities A and B would then be subject to sanctions, including forfeiting the right to any further participation in the auction. FAQ-77 mentions that Entities A and B may avoid such a situation by forming a bidding agreement and declaring such a bidding agreement (the “Arrangement”) in their Part 1 Application provided that each Entity continues to stand alone and conduct its business independently after the merger of their parents and until three days after the Board renders a decision on the auction results. Can you please elaborate?


We reiterate that it is assumed that neither Entity A nor Entity B would legally or effectively combine with each other or with any subsidiaries of the company with which its parent has merged.

The fact that Entities A and B could enter into an Arrangement in the Part 1 Application may contribute to ease concerns about an association forming between Entities A and B after the Part 2 Applications are submitted because the restrictions placed on the Entities participating in the Arrangement are likely to be sufficient for those that would apply to any two Qualified Bidders that are associated with one another. However, the participation in an Arrangement does not grant an exception for the Entities to make all other certifications required of the Part 2 Application, including: (1) certifications that the Qualified Bidder must remain the same Entity until three days after the Board renders a decision on the auction results; and (2) the certification that the Qualified Bidder will not substitute another entity in its place, transfer its rights to another entity, or otherwise assign its status as a bidder to another entity. These certifications ensure that the Entities that submit to the qualification process, that certify agreement to the Supplier Master Agreement and the Auction Rules, and that certify compliance to the Association and Confidential Information Rules are those Entities that bid and that would sign the Supplier Master Agreement should they be successful at the auction.

On the basis of the Part 1 and Part 2 Applications, the Auction Manager would determine whether Entities A and B comply with the Association and Confidential Information Rules and whether these Entities could be registered in the auction as a “Joint Bidder”. This determination would rely on the details of the certifications and information disclosures, as well as the specific circumstances; a general determination cannot be made.

We emphasize in the strongest possible terms that this response does NOT purport to state that if the parent of Entity A and the parent of Entity B have plans to merge, it is legal under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) or other controlling antitrust laws for Entity A and Entity B to form a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction (“Arrangement”). Our response discusses, under the hypothetical that Entity A and Entity B do participate in an Arrangement and have entered into such an Arrangement after seeking all relevant legal advice in their sole discretion, the possibility that these Entities may continue to participate in the auction. Bidders should consult their own legal counsel to determine whether any such Arrangement in their particular circumstances complies with the HSR Act as well as any other regulation, law, or undertaking of the Entities and of the merging parties.



11/21/2017, in Association and Confidential Information Rules.
FAQ-82

Entity A’s parent company has plans to merge or to combine with another company. This other company has a subsidiary, Entity B, which is also active in trading and marketing power in PJM. Entity A does not know whether Entity B intends to submit a Part 1 Application to a BGS Auction. Entity A is concerned that complications may arise if both Entity A and Entity B participate in the auction and the merger closes before such time that three days have elapsed after the Board renders a decision on the auction results. Would it be possible for Entity A to declare in its Part 1 Application a “contingent” Bidding Agreement whereby the Bidding Agreement is NOT effective unless: (i) Entity A and Entity B both become Qualified Bidders in the auction and learn that the other is identified as such through the list of Qualified Bidders provided with the notification of qualification; and (ii) the merger closes prior to the start of the auction. The Bidding Agreement, should it become effective, would allow the Entities to bid jointly.


Although the Association and Confidential Information Rules are designed to accommodate many different circumstances, unfortunately these Rules do not contemplate the arrangement that you describe and the Auction Manager would not accept such an arrangement in the Part 1 Application. The contingent arrangement that you describe does not seem to be an ‘agreement’. If, on the one hand, Entity A is acting without the accord and the knowledge of Entity B, then there is no agreement between Entity A and Entity B, contingent or otherwise. Entity A cannot declare a Bidding Agreement with Entity B when Entity B is not even informed of that fact. If, on the other hand, Entity A and Entity B are communicating with respect to their participation in the auction, then each of Entity A and Entity B should declare in it Part 1 Application an actual bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, which renders a ‘contingent’ agreement moot.



11/21/2017, in Association and Confidential Information Rules.
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FAQ-81

For purposes of the Part 1 Application, an entity no longer remains the Same Entity if, during a period between the qualification of bidders and three business days after the Board renders a decision on the results of the BGS-RSCP Auction, the entity consolidates into, amalgamates into, or merges into another corporate entity, regardless of whether such an event leads to a change in the entity’s legal or trade name. Certifications required by the Part 1 Application ask the applicant to certify that it will remain the Same Entity.

Energy Marketer A’s parent (“Parent A”) has plans to acquire another entity (“Parent B”). Although timing is uncertain, these plans could receive all required regulatory approvals at some point between the qualification of bidders and three business days after the Board renders a decision on the results of the BGS-RSCP Auction. Parent B will initially be a wholly owned subsidiary of Parent A. Energy Marketer A will not be consolidated, amalgamated, or merged into another corporate entity as a result of the proposed merger. Energy Marketer A will remain a direct, wholly owned subsidiary of its parent.

Would Energy Marketer A remain the Same Entity for purposes of these certifications required by the Part 1 Application? Would Energy Marketer A be subject to additional requirements to participate in the BGS-RSCP Auction?


If Energy Marketer A continues to stand alone and conduct its business independently, and has not legally or effectively combined with any subsidiaries of the company with which its parent has merged, it would not be considered to have substituted, assigned or transferred its rights as a Qualified or Registered Bidder and would be considered the Same Entity.

We are assuming that no other subsidiary of the merging parents is participating in the auctions. If, on the contrary, Parent A and Parent B do merge between the time of qualifications and three days after the Board renders a decision on the auction results and a subsidiary of Parent B is a Qualified Bidder, then an additional and immediate issue arises with respect to the Association and Confidential Information Rules. Energy Marketer A will have certified in its Part 2 Application that it is not associated with any other Qualified Bidder. Energy Marketer A would violate this certification of the Part 2 Application upon the merger of Parent A with Parent B if a subsidiary Parent B was also a Qualified Bidder. Indeed, in this case, Energy Marketer A and Energy Marketer B, the subsidiary of Parent B and another Qualified Bidder in the auction, would become sister companies and thereby associated with each other. Bidders that are known to be associated or to have become associated and have not declared an association in the Part 2 Application, and have not declared in the Part 1 Application a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, are subject to sanctions, including forfeiting the right to any further participation in the auctions.

Even if, as it appears from your description of the situation, Energy Marketer A will remain the Same Entity and will not be considered to have substituted, assigned or transferred its rights as a Qualified or Registered Bidder, the Auction Manager may ask Energy Marketer A to certify that procedures are in place to keep its business separate from other affiliates including through corporate personnel who may communicate across affiliates. Furthermore, the Auction Manager may require additional information or additional undertakings to ensure continued compliance with the Association and Confidential Information Rules, such as ensuring that no confidential information (relative to its bidding strategy or regarding the Auction Process) would be exchanged with its affiliates as a result of the merger of its parent.



11/21/2017, in Association and Confidential Information Rules.
FAQ-80

Energy marketer A is a Registered Bidder in a BGS Auction. If energy marketer A is acquired by energy marketer B, would energy marketer A be considered to have substituted, assigned or transferred its rights as a bidder or be unable to make and uphold the certifications of the Association and Confidential Information Rules? Energy marketer B is also active in PJM but is not a Qualified Bidder.


The requirement that a Qualified Bidder and a Registered Bidder not substitute, transfer or assign its rights serves an important purpose. Each bidder is required to maintain its corporate identity so that the effectiveness of the certifications it has made and the certifications other bidders have made, in order to preserve the fairness and the competitiveness of the auction, are maintained. When a bidder changes its corporate identity, including being acquired and folded into another company, it would in general lose its rights as a bidder and would be disqualified from participation in the auction. There may be additional issues concerning the certifications of the Part 1 and Part 2 Applications but the inability to uphold the certification that energy marketer A not transfer its right is sufficient to result in energy marketer A’s exclusion from the auction. It would not be able to assign or transfer its rights to the new corporate entity or substitute that entity in its place. Please note that these certifications are intended to be in effect from the time at which the certification is made until three days after the Board has rendered a decision on the auction results. This period of time should be sufficiently short that entities participating in the auction can plan any such activity so that it does not interfere with their participation in the auction.

If energy marketer A is acquired by energy marketer B, as stated above, in general energy marketer A would be precluded from further participation in the auction. However, it may be possible that the acquisition could be structured or timed in a way that enables energy marketer A to constitute a distinct part of an acquisition that can be postponed until a later time. If it is the case that energy marketer A continues to stand alone and conduct its business independently throughout the Auction Process, and that energy marketer A has not legally or effectively combined with the acquiring entity or any subsidiaries of the acquiring entity, then energy marketer A will not have assigned, substituted or transferred its rights as a bidder and energy marketer A may continue in the Auction Process. The Auction Manager may ask for additional information or additional representations to ensure that this is the case, and to ensure that energy marketer A continues to abide by the certifications of the Part 1 and Part 2 Applications even if its situation has changed and even if it will change its corporate structure in the near future. This could involve asking energy marketer A to represent that it has not exchanged and will not exchange any information concerning its business that could involve the auction to the acquiring entity or its affiliates. These are high hurdles that would most likely require careful advance planning on the part of energy marketer A.



11/21/2017, in Association and Confidential Information Rules.
FAQ-79

Energy marketer A is a Qualified Bidder in a BGS Auction. If energy marketer A acquires energy marketer B, would energy marketer A be considered to have substituted, assigned or transferred its rights as a bidder or be unable to make or uphold any of the certifications of the Association and Confidential Information Rules? Energy marketer B is also active in PJM but has not applied to participate in the BGS Auctions.


By energy marketer A acquiring energy marketer B, we assume you mean that the corporate entity that is energy marketer A acquires the corporate entity that is energy marketer B or a corporate entity that owns energy marketer B.

This transaction most likely would not be considered a substitution, transfer or assignment of energy marketer A’s rights as a bidder. However, this transaction would pose a high risk of energy marketer A not being able to make or uphold certifications made in the Part 2 Application. This in turn may mean that energy marketer A may not be able to become a Registered Bidder or, if energy marketer A is already a Registered Bidder, that energy marketer A risks sanctions including disqualification (see, for instance, FAQ-49 and FAQ-50).

If energy marketer A acquires energy marketer B or an entity that owns energy marketer B, any information held by energy marketer B would, by definition, be information held by energy marketer A as well. It would not be possible to keep energy marketer A as a stand alone entity, by attempting to separate it from information held by energy marketer B that may cause it to be unable to make or uphold certifications in the Part 2 Application. Energy marketer A would own energy marketer B and all certifications that it has made would apply to it and to energy marketer B that is now part of energy marketer A. If energy marketer B had confidential information relative to the bidding strategy of another Qualified Bidder, energy marketer A would be unable to make or uphold its certification that it did not have any knowledge of confidential information relative to the bidding strategy of another Qualified Bidder. If energy marketer A had made this certification in the Part 2 Application already, energy marketer A would face sanctions, which could include forfeiting the right to any further participation in the auction. We note that energy marketer A is also at risk of receiving information, during the due diligence process, concerning transactions that energy marketer B had made with respect to the auction, rendering energy marketer A unable to make or uphold the certification that it did not have any knowledge of confidential information relative to the bidding strategy of another Qualified Bidder.

As the time between becoming a Qualified Bidder and the end of the Auction Process is reasonably short, it would be advisable for Qualified Bidders to refrain from any acquisitions that would involve entities active in trading and marketing in PJM during that period, as there is a risk that a Qualified Bidder can then be in a position of not being able to make or uphold the certifications of the Part 2 Application, and of facing possible disqualification.

Furthermore, if energy marketer B had made any transactions with another Qualified Bidder (say, energy marketer C) where energy marketer C relied on the fact that energy marketer B was not a Qualified Bidder, the acquisition by energy marketer A could raise issues with respect to the certifications made by energy marketer C. All Qualified Bidders are asked to certify that they have not disclosed confidential information relative to their bidding strategy. However, notwithstanding that certification, “during negotiations prior to the auction for contractual arrangements for power to serve BGS load were it to be a winner at the BGS Auction”, Qualified Bidders are permitted to “discuss with the counterparty to such arrangements the nature of the products to be purchased, the volume, and the price at which you are willing to buy these products.” See, for instance, FAQ-69, which explains that the counterparty in such negotiations must be an entity that is not a Qualified Bidder. Energy marketer C may have discussed confidential information with energy marketer B, believing, correctly at the time, that energy marketer B was not a Qualified Bidder. However, by being acquired by energy marketer A, energy marketer B would be part of a Qualified Bidder. The certifications of energy marketer C would become inaccurate through the action of energy marketer A. This type of circumstance may lead the Auction Manager to disqualify energy marketer A, who would be unable to make or uphold the certification that it did not have confidential information relative to the bidding strategy of another Qualified Bidder (i.e., energy marketer C) because of its acquisition of energy marketer B.



11/21/2017, in Association and Confidential Information Rules.
FAQ-78

Energy marketer A is a Registered Bidder in BGS-RSCP Auction. Before the auction starts, its parent company merges or combines with another company that also has subsidiaries active in trading and marketing power in PJM. However, energy marketer A continues to stand alone and is not merged or otherwise combined with any of the subsidiaries of the company merging with its parent. Will energy marketer A be considered to have substituted, assigned or transferred its rights as a Qualified or Registered Bidder, or be considered to have failed to uphold any of the certifications of the Association and Confidential Information Rules?


If energy marketer A continues to stand alone and conduct its business independently, and has not legally or effectively combined with any subsidiaries of the company with which its parent has merged, it would not be considered to have substituted, assigned or transferred its rights. The Auction Manager may ask energy marketer A to certify that procedures are in place to keep its business separate from other affiliates including through corporate personnel who may communicate across affiliates. Furthermore, the Auction Manager may require additional information or additional undertakings to ensure continued compliance with the Association and Confidential Information Rules, such as ensuring that no confidential information (relative to its bidding strategy or regarding the Auction Process) would be exchanged with its soon-to-be affiliates. Under these conditions, it is expected that energy marketer A would remain eligible to continue participation in the auction. Please note that these are high hurdles that would most likely require careful advance planning on the part of energy marketer A. Further, energy marketer A would be required to continue upholding all certifications that it made in the Part 2 Application, including the certification that it will not disclose confidential information relative to its bidding strategy; there is no exception that would permit disclosure to affiliates or parents.

We have assumed in this answer that no other subsidiary of the merging parents is participating in the auction (see, for instance, FAQ-77). If, on the contrary, a subsidiary of the company with which energy marketer A’s parent has merged is a Qualified Bidder, then an additional and immediate issue arises with respect to the Association and Confidential Information Rules. Energy marketer A certified in its Part 2 Application that energy marketer A is not associated with any other Qualified Bidder. Energy marketer A would violate this certification of the Part 2 Application upon the merger of its parent. Indeed, if a merger of energy marketer A’s parent and another Qualified Bidder’s parent were to occur after the Part 2 Application, but prior to the auction, energy marketer A and the other Qualified Bidder would become sister companies and thereby associated with each other. Bidders who are known to be associated or to have become associated and have not declared an association in the Part 2 Application, and have not declared in the Part 1 Application a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, are subject to sanctions, including forfeiting the right to any further participation in the auction.



11/21/2017, in Association and Confidential Information Rules.
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FAQ-77

A Qualified Bidder is asked to certify in the Part 2 Application and uphold that it is not associated with another Qualified Bidder. It seems possible that a situation would arise where a Qualified Bidder is not associated with another Qualified Bidder at the time it makes the certification in the Part 2 Application, but that an association arises between the two Qualified Bidders as a result of a merger or other combination that occurs after the Part 2 Application.

If the Qualified Bidder knows that this possibility exists, can the Qualified Bidder be registered to participate in a BGS Auction if it explains that it can certify that it is not associated with another Qualified Bidder at the time of the Part 2 Application but that its circumstances may change during the Auction Process?


With possible exceptions that will be discussed later in this answer, in general a Qualified Bidder cannot be registered to participate in a BGS Auction unless either it can state affirmatively that it is not associated with any other Qualified Bidder, or it can name the other Qualified Bidder(s) with which it is associated and explain the nature of the association as defined in the Association and Confidential Information Rules.

Although the Association and Confidential Information Rules are designed to accommodate many different circumstances, and although the certifications and disclosures from each Qualified Bidder are examined on a case-by-case basis, the Auction Manager must be able to completely determine whether a Qualified Bidder that has submitted a Part 2 Application is or is not associated with other Qualified Bidders. The Auction Manager must be able to make this determination because Qualified Bidders that are associated are treated differently under the Association and Confidential Information Rules. For example, associated Qualified Bidders may be jointly subject to load caps. Information with respect to associations must be known with certainty at the time of the Part 2 Application, so that the Auction Manager can request additional information, and so that the Auction Manager can impose any required restrictions on those Qualified Bidders that are associated with each other. The Association and Confidential Information Rules do not provide for this to occur after the Part 2 Application should an association be newly created during the Auction Process.

In general, two Qualified Bidders that may become associated but are unsure whether they will become associated during that period would not both be able to register and bid based on a disclosure that they “could” become associated. There may be exceptions. First, if a Qualified Bidder (Party A) submits a Part 2 Application disclosing that it could become associated with another Qualified Bidder (Party B) but Party B has not elected to submit a Part 2 Application, the Auction Manager may ask for additional information. The Auction Manager could conclude that Party A could register to participate in the auction. Second, if applicants had, in their Part 1 Application, declared a bidding agreement, joint venture for the purpose of bidding in the auction, bidding consortium, or other arrangement pertaining to bidding in the auction, and if they disclose the fact that they may become associated at the Part 2 Application stage, the Auction Manager could conclude that the Qualified Bidders can register to bid in the auction. In this case, the Auction Manager explicitly considers the fact that the restrictions placed on members of a bidding consortium or members of a bidding arrangement are likely to be sufficient for those that would apply to Qualified Bidders that are associated with one another.

Please note that this answer only examines the possibility that Qualified Bidders may become associated with one another while each Qualified Bidder continues to stand alone and conduct its business independently; for example, the parents of the Qualified Bidders could merge or combine in some manner, so that the Qualified Bidders would become sister companies, but the Qualified Bidders would not themselves combine or merge. This answer does not directly contemplate cases where, for example, the Qualified Bidders themselves would merge or combine. If Qualified Bidders themselves combined or merged, one or both of these Qualified Bidders would likely be unable to uphold the certification that the Qualified Bidder would not substitute another entity in its place, transfer its rights to another entity, or otherwise assign its status as a bidder to another entity. This certification is required in the Part 1 and Part 2 Applications. These certifications ensure that the entity that submits to the qualification process, that certifies its agreement to the Supplier Master Agreement and the Auction Rules, and that certifies its compliance to the Association and Confidential Information Rules is the same entity that bids and that would sign the Supplier Master Agreement should that entity become a winner in the auction.



11/21/2017, in Association and Confidential Information Rules.
FAQ-76

If a Qualified Bidder has an Advisor, should this Qualified Bidder put in place confidentiality agreements in advance of the Part 2 Application? Why are such confidentiality agreements necessary?


Confidentiality agreements are prudent in general given that the Qualified Bidder is providing confidential information to someone from outside its organization. Furthermore, the Qualified Bidder is responsible for any failure on the part of the Advisor to maintain the confidentiality of the information. Such failure may result in sanctions, including forfeiture of the Pre-Auction Letter of Credit and disbarment for participation in future BGS Auctions. Confidentiality agreements, as well as any other protections that the Qualified Bidder wishes to put in place, are required whenever an Advisor may be in a position to serve as a conduit of information between Qualified Bidders. Such would be the case if the Advisor has contact with more than one Qualified Bidder.



11/20/2017, in Association and Confidential Information Rules.
FAQ-75

Please clarify the definition of an Advisor. Does legal counsel count as an Advisor?


An Advisor is an entity or person(s) that will be advising or assisting a bidder with bidding strategy in the BGS-RSCP Auction, with estimation of the value of a system’s tranches, or with the estimation of the risks associated with serving BGS load. This advice may be with respect to the round-by-round submission of bids and analysis of the information on the general progress of the auction. This advice may be in preparation for submitting bids at the auction in terms of analyzing the risks and rewards of supplying tranches for a given EDC. A bidder may, for example, be obtaining general market information from an entity (i.e., subscribing to a service that educates its readers with respect to the market or provides to its subscribers general trends in market prices). This entity would not be an Advisor because the information obtained is general in nature and not specific to the auction.

A bidder may, as another example, retain a person to provide updates on the market or educate the bidder as to items such as the responsibilities of being an LSE in PJM. This person would not be an Advisor because the information obtained is general in nature and not specific to the auction. A bidder may retain a person that will analyze the migration risk of customers of different BGS-RSCP classes for a given EDC. This person would be an Advisor as such an analysis would be one element of estimating the value of a system’s tranches. In general, an Advisor provides assistance that is specific to the auction.

In general, legal counsel for the bidder would not be considered an Advisor under this definition unless legal counsel provides both legal advice and advice of the type described above.

Please note that, for a Qualified Bidder to be able to make and uphold its certification that it will not disclose confidential information relative to its bidding strategy or regarding the Auction Process, the bidder, when obtaining general information from a person that is not its Advisor, cannot disclose confidential information, including the fact that it has qualified to participate in one or both of the BGS Auctions.



11/20/2017, in Association and Confidential Information Rules.
FAQ-74

If an energy supplier that is not participating in the BGS Auctions makes an arrangement to sell either an amount of capacity or power to an entity that intends to become a Registered Bidder in the auctions, but the sale is contingent upon this entity winning at the auction, does this arrangement need to be disclosed in the Part 1 Application?


The arrangements that must be disclosed in the Part 1 Application may be described as follows. An applicant to one or both of the BGS Auctions must disclose any bidding agreement, bidding arrangement, bidding consortium, or joint venture in the Part 1 Application. Please consult the definitions of bidding agreement, bidder consortium and joint venture provided in the glossary to the Part 1 Application and the Part 2 Application. In such arrangements, two or more entities are cooperating to submit bids in the auctions. All entities participating in such arrangements must be named in the Part 1 Application and are included in the list of Qualified Bidders. All entities participating in such arrangements are asked to make the certifications under the Association and Confidential Information Rules in the Part 2 Application (even if only one of the entities is expected to sign the BGS Supplier Master Agreement). The pre-auction letter of credit must be submitted in a way that allows the EDCs to draw upon the pre-auction letter of credit if any of the entities that are parties to such arrangements fail to abide by these certifications or otherwise make a material omission or misrepresentation in the applications. Please note that all such arrangements must be entered into before the Part 1 Applications are received, must be disclosed in the Part 1 Application, and cannot be entered into later in the Auction Process.

While bidding agreements, bidding arrangements, bidding consortia, and joint ventures must be entered into before the Part 1 Application and disclosed in the Part 1 Application, this does NOT mean that all contractual arrangements entered into before the Part 1 Application by an applicant and that may be related to its participation in the BGS Auctions must necessarily be disclosed in the Part 1 Application. There are a variety of contractual arrangements in which an applicant to the BGS Auctions can enter that are not bidding agreements, bidding arrangements, bidding consortia, or joint ventures. There are a variety of contractual arrangements for power to serve BGS load were the applicant to be a winner at the BGS Auction that an applicant may enter into prior to the Auction and that do not require a disclosure in the Part 1 or the Part 2 Application.

While you provide a general description of the type of arrangement in which you have entered, you do not provide sufficient details for a definite response as to whether disclosures are necessary in the Part 1 or the Part 2 Application in your case. We can state that neither the fact that the arrangement in your case is entered into before the Part 1 Application or the fact that the arrangement is contingent on your winning in the auction imply that a disclosure is necessary. If the arrangement in question is not for purposes of submitting joint bids in the auction, and if you determine in good faith that the arrangement does not correspond to a bidding agreement, bidder consortium and joint venture as defined in the Part 1 Application, then the arrangement need not be disclosed in the Part 1 Application.

You also do not provide sufficient details regarding your arrangement for the Auction Manager to provide guidance as to whether the arrangement may affect your ability to make the certifications required by the Association and Confidential Information Rules in the Part 1 and Part 2 Applications. These certifications include that the Qualified Bidder certify that: it will not disclose at any time information regarding the list of Qualified Bidders (including the fact that it is itself a Qualified Bidder); it does not have any knowledge of confidential information relative to the bidding strategy of another bidder; it will not disclose confidential information relative to its own bidding strategy; it is not the purchasing party in any contract for any product that would require the disclosure of any confidential information relative to bidding strategy or confidential information regarding the Auction Process to the counterparty, or that would provide instructions to act in a way determined by the counterparty; and that no entity has agreed to defray the Qualified Bidder’s costs of participating in the auction.

Certainly, the fact that you are entering in this arrangement prior to the list of Qualified Bidders being established facilitates your ability to make the certification that you have not disclosed information regarding the list of Qualified Bidders since qualification of bidders has not yet occurred. Similarly, the fact that you are entering in this arrangement with an entity that will not be a Qualified Bidder in the auction also facilitates your ability to make the certifications required by the Association and Confidential Information Rules in the Part 1 and Part 2 Applications (note, however, that if unexpectedly the entity becomes a Qualified Bidder, you may be unable to make or uphold some of the required certifications). While your ability to make such certifications is facilitated by these circumstances, such circumstances do not mean that you can automatically make all certifications required by the Association and Confidential Information Rules. It is the responsibility of each applicant and bidder to consider each certification carefully in light of the definitions in the Auction Rules and in the Application Forms so as to determine in good faith whether any circumstance, including a transaction or arrangement of the type in which you have entered, may prevent the applicant or bidder from making or upholding any of the certifications in the Part 1 and Part 2 Applications.



11/20/2017, in Association and Confidential Information Rules.
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FAQ-73

In FAQ-72, you state that a marketer who is a Qualified Bidder in the BGS-RSCP Auction must take all due care in obtaining quotes for energy blocks from the trading desk of another Qualified Bidder. Similarly, in FAQ-67 you discuss transactions for shaped energy. Must the same care be exercised by the marketer if the marketer instead goes to the broker market (using the inherent shield of anonymity) to obtain market price information for power products that may be used as components of BGS-RSCP supply (without making purchases through the broker in question)?


Yes. As explained in FAQ-72, care must be exercised so that the marketer can make and uphold the certifications in the Part 2 Application that state that the marketer will not disclose confidential information relative to its bidding strategy or regarding the Auction Process. These certifications apply to disclosure of confidential information not just to other Qualified Bidders, but to anyone, including a broker.

Please note that FAQ-72 referred to quotes for energy only, while the question posed here refers to “power products that may be used as components of BGS-RSCP supply.” The marketer is asked in its Part 2 Application to certify and uphold the certification that it will not disclose confidential information regarding the Auction Process. Confidential information regarding the Auction Process includes the fact that the marketer is a Qualified Bidder in the BGS-RSCP Auction. To make and uphold this certification, the marketer must take care not to reveal that it is a Qualified Bidder indirectly by seeking quotes for products that would only be of use to a Qualified Bidder in the BGS-RSCP Auction. As an example, power products tied to serving a BGS-RSCP tranche for a particular EDC, such as the full-requirements service for a percentage of the EDC's BGS-RSCP load, would only be useful to a bidder in the BGS-RSCP Auction. Asking for quotes for these products would reveal confidential information regarding the Auction Process (namely, the fact that the entity asking for the quote is a Qualified Bidder) to the broker. We note that we believe this situation unlikely since, to the best of our knowledge, products that are directly tied to BGS-RSCP supply are not traded in the broker market.



11/20/2017, in Association and Confidential Information Rules.

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