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Answers to Frequently Asked Questions are provided in this section. 

The first posting of FAQs is in August. The last posting of FAQs is in the latter part of January, after bidders are registered to participate in the Auctions. From that point, questions and answers are emailed directly  to Registered Bidders and are not posted to the BGS Auction website. Questions that are not from Registered Bidders or their advisors are answered strictly as time permits.

Your use of this page (site) constitutes an acceptance of the Terms as  described in the disclaimer.

 

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FAQ-34

Can a Qualified Bidder publicly announce during the Auction Process that it is participating in one or both of the BGS Auctions?  Can a Qualified Bidder discuss its participation in the Auction Process with anyone?


No, once an entity has completed the Part 1 Application for a BGS Auction, this entity cannot announce that it is participating in a BGS Auction.  In its Part 1 Application, the entity certifies that upon becoming a Qualified Bidder, it will not disclose information regarding the list of Qualified Bidders, including the identity of any one Qualified Bidder.  This prohibits the Qualified Bidder from announcing or revealing to anyone that it is itself a Qualified Bidder, since this would reveal the identity of a Qualified Bidder.

In its Part 2 Application, the Qualified Bidder certifies that upon becoming a Registered Bidder, it will not disclose information regarding the list of Registered Bidders, including the identity of any one Registered Bidder.  This prohibits the Registered Bidder from announcing or revealing to anyone that it is itself a Registered Bidder, since this would reveal the identity of a Registered Bidder.

Furthermore, an entity cannot discuss its participation with anyone while the auction is on-going. In its Part 1 Application, the entity also agrees to the Auction Rules.  At that point, the entity agrees that as a Qualified Bidder, it will not disclose any confidential information regarding the Auction Process. Confidential information regarding the Auction Process explicitly includes the status of a bidder’s participation in the auction.  There are only narrow and specific exceptions to this principle; namely, the Qualified Bidder may discuss confidential information regarding the Auction Process with an Advisor, or with bidders with which it is associated (as disclosed in its Part 2 Application).



11/21/2022, in Association and Confidential Information Rules.
FAQ-33

Is an entity that becomes a Registered Bidder for a BGS Auction but does not participate in that auction still bound by its certifications in the Part 1 and Part 2 Applications?


Yes.  An entity that receives a Notification of Qualification acquires Qualified Bidder status and retains this status until the end of the Auction Process.  Similarly, an entity that receives a Notification of Registration acquires Registered Bidder status and retains this status until the end of the Auction Process.  There is no possibility to rescind or change this status.  This means that an entity that becomes a Qualified Bidder and that does not submit a Part 2 Application is bound by all the certifications it has made in the Part 1 Application.  Similarly, an entity that becomes a Registered Bidder is bound by all the certifications it has made in the Part 1 and Part 2 Applications, regardless of whether the Registered Bidder subsequently participates in the auction.

Please review the certifications in the Part 1 and Part 2 Applications for more details and in particular for the time period during which these certifications must remain in effect.



11/21/2022, in Association and Confidential Information Rules.
FAQ-32

Suppose that an entity submits a Part 1 Application for the BGS-RSCP Auction, qualifies as a bidder, and then changes its status to a supplier by not filing the Part 2 Application.  Can you confirm that the entity in question is then no longer in the ambit of the Association and Confidential Information Rules, and that this scenario presents no issues of compliance with the Association and Confidential Information Rules?


No, your view is incorrect.  This scenario presents important issues of compliance with the Association and Confidential Information Rules.

Please note that an entity that submits a Part 1 Application in the BGS-RSCP Auction, if successful, becomes a Qualified Bidder.  Status as a Qualified Bidder cannot be rescinded or changed after the Auction Manager has provided the entity with the Notification of Qualification and has provided the entity with the confidential information that is available only to Qualified Bidders in the BGS-RSCP Auction.  There is no such thing as a "supplier" status, no possibility to change status from a Qualified Bidder to a supplier, and no possibility to rescind status as a Qualified Bidder (see, for instance, FAQ-33). 

If an entity – call it Party A – submits a Part 1 Application for the BGS-RSCP Auction, qualifies as a bidder, and does not subsequently submit a Part 2 Application, Party A need not make certifications in the Part 2 Application, including certifications from the Association and Confidential Information Rules. But this does not mean that Party A is not in the ambit of the Association and Confidential Information Rules.  Party A must continue to abide by its certifications made in the Part 1 Application.

Furthermore, other Qualified Bidders in the BGS-RSCP Auction that do submit a Part 2 Application are also asked to make certifications, including certifications from the Association and Confidential Information Rules.  In making these certifications, other Qualified Bidders must consider the list of all Qualified Bidders, and this list of Qualified Bidders includes Party A.  This means that any Qualified Bidder in the BGS-RSCP Auction that has negotiated or negotiates supply arrangements specific to BGS-RSCP supply with Party A and that submits a Part 2 Application will most likely be unable to attest that it does not have any knowledge of confidential information relative to the bidding strategy of another Qualified Bidder (namely, Party A).  Furthermore, a Qualified Bidder that submits a Part 2 Application may, as a result of interactions with Party A, be unable to attest to any one of the following:

  • it is not associated with another Qualified Bidder;
  • it has not entered into any agreement with another Qualified Bidder regarding bids at the auction;
  • it is not a party to any contract for the purchase of power that might be used as source of supply for BGS-RSCP, and that (i) would require the disclosure of any confidential information (confidential information relative to the bidding strategy or confidential information regarding the Auction Process) to the counterparty under such a contract; or (ii) that would require the disclosure of any confidential information (confidential information relative to the bidding strategy or confidential information regarding the Auction Process) to any other party; or (iii) that would provide instructions, direct financial incentives, or other inducements for the bidder to act in a way determined by the counterparty in the agreement and/or in concert with any other bidder in the auction;
  • it does not have any knowledge of confidential information relative to the bidding strategy of any other Qualified Bidder;
  • it has not disclosed confidential information relative to its bidding strategy;
  • no party has agreed to defray any of its costs of participating in the auction; and
  • it will not disclose any confidential information regarding the Auction Process.

Every Qualified Bidder with which Party A wants to negotiate a supply arrangement is faced with not being able to make all certifications, with the need to make information disclosures, and with the possibility of being subject to any remedies as determined by the Auction Manager, which include not being able to participate in the BGS-RSCP Auction.  The potential problem is not avoided by negotiating after the Part 2 Application has been submitted.  If such an arrangement is negotiated after the Part 2 Application is submitted, a Qualified Bidder with which Party A negotiates a supply arrangement is faced with being unable to uphold the certifications made in the Part 2 Application and is subject to sanctions (see, for instance, FAQ-26, FAQ-27, and FAQ-30).

The scenario you present therefore raises a number of important issues with respect to compliance with the Association and Confidential Information Rules for any BGS-RSCP Bidder negotiating with Party A.  If Party A did not submit a Part 1 Application and did not become a Qualified Bidder, although each Qualified Bidder must take due care to uphold certifications in the Part 1 and Part 2 Applications (see, for instance, the discussion in FAQ-27), the same issues may not arise.



11/21/2022, in Association and Confidential Information Rules.
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FAQ-31

The Part 2 Application states: 

“Completion of the following certifications signifies:

your agreement not to take any action during the period to which each certification applies that might affect the accuracy of the certifications; and

your acknowledgement that you do not know of or cannot reasonably anticipate, at the time of this Part 2 Application, any event(s) that might cause these certifications to become untrue during the period to which each certification applies.”

What if a certification becomes untrue, but not as a direct consequence of an action taken by the applicant?


The applicant is subject to sanctions if a certification it makes becomes untrue.  The certifications are designed so that the applicant should either know or be able to control whether the certification stays true during the period to which a certification applies.  There is no exception from sanctions if a certification becomes untrue, even if an action taken by the applicant is not the proximate cause.

In weighing the appropriateness of a sanction, we would expect that the Board would consider whether the applicant should have reasonably been aware of the possibility of the event that caused the certification to become untrue, as well as the nature of the relationship between the applicant and the party whose action caused the certification to become untrue.



11/21/2022, in Association and Confidential Information Rules.
FAQ-30

What would happen to a bidder that had made all the certifications of the Association and Confidential Information Rules in the Part 1 and Part 2 Applications and that had been found subsequently to have violated one or more of these certifications?


Sanctions can be imposed for such a violation.  These sanctions include loss of all rights to serve any BGS Load won in the auction, forfeiture of the Pre-Auction Letter of Credit, liquidated damages of $100,000, action under state or federal laws, debarment from participation in future BGS Auctions, prosecution under applicable state and federal laws, or other sanctions that the Board may consider appropriate.  The Auction Manager will make a recommendation to the Board on a possible sanction and the Board will make the final determination.



11/21/2022, in Association and Confidential Information Rules.
FAQ-29

What would happen to a bidder if the bidder cannot make one or more of the certifications in the Part 2 Application?


It depends on the certification.  Some certifications of the Part 2 Applications are required for a Qualified Bidder to become a Registered Bidder.  For example, a Qualified Bidder must certify that, other than agreements disclosed in the Part 1 Application, the Qualified Bidder has not entered into any agreement with any other Qualified Bidder regarding participation in the auction for which it is applying.  If a Qualified Bidder is unable to make this certification, the Qualified Bidder will not be able to participate in the auction.

Other certifications of the Part 2 Application allow the Qualified Bidder to make an information disclosure to explain why it is unable to make a certain certification.  For example, a Qualified Bidder that is unable to certify that it is not associated with any other Qualified Bidder will be asked to identify the Qualified Bidder(s) with which it is associated, and will be asked to describe the nature of the association.  If a Qualified Bidder makes such a disclosure because it cannot make one of the certifications in the Part 2 Application, this disclosure will be considered when the Part 2 Application is processed.  The Auction Manager may require additional information and will decide on a course of action on a case-by-case basis to preserve the competitiveness and integrity of the auction.  This course of action could include allowing the Qualified Bidder to complete the Part 2 Application successfully without additional undertakings, could include requiring additional undertakings as a condition for the successful completion of the Part 2 Application and for participation in the auction, and could include rejection of the Part 2 Application.



11/21/2022, in Association and Confidential Information Rules.
FAQ-28

Are the Association and Confidential Information Rules evaluated on a separate and independent basis in the two auctions?


Yes.  The BGS-RSCP and BGS-CIEP Auctions are separate in all important respects.  The evaluation of the Association and Confidential Information Rules pertains to each auction separately.  A bidder in the BGS-RSCP Auction is asked in its Part 1 and Part 2 Applications to make a number of certifications found in the BGS-RSCP Auction Rules.  In these rules, a “bidder” means a bidder in the BGS-RSCP Auction.  Most of these certifications are made in Insert #P2-1 required by the Part 2 Application, where it is stated: "In these certifications, a “Qualified Bidder” refers to an entity qualified to participate in the BGS-RSCP Auction."  Similarly, a bidder in the BGS-CIEP Auction is asked in its Part 1 and Part 2 Applications to make a number of certifications found in the BGS-CIEP Auction Rules.  In these rules, a “bidder” means a bidder in the BGS-CIEP Auction.  Most of these certifications are made in Insert #P2-3 required by the Part 2 Application, where it is stated: "In these certifications, a “Qualified Bidder” refers to an entity qualified to participate in the BGS-CIEP Auction.”

 



11/21/2022, in Association and Confidential Information Rules.
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FAQ-27

Do the Association and Confidential Information Rules, through the certifications that the bidder must make in the Part 2 Application, de facto restrict the type of supply arrangements that bidders can make for the auction product or restrict their day-to-day market activities?


The objectives of the Association and Confidential Information Rules of preventing collusive arrangements and of preventing any one bidder from gaining superior information regarding its competitors mean that these rules do imply some restrictions on the day-to-day market activities of bidders and on possible supply arrangements.

For example, if one bidder (Bidder A) transacts with another bidder (Bidder B) and in the process Bidder A learns Bidder B’s valuation for the auction product, then Bidder A would have gained superior information about a competitor, and this transaction could foster collusion (see, for instance, FAQ-41 and FAQ-42).  The fact that the Association and Confidential Information Rules aim to prevent a bidder from gaining superior information about its competitors that might affect the Auction Process implies that Bidder A cannot sell a full-requirements product to Bidder B.  Such a supply arrangement would provide Bidder A with reliable information regarding Bidder B’s valuation of the auction product. This is an example of a restriction on supply arrangements implied by the Association and Confidential Information Rules.  As another example, each bidder is asked to certify that it has not entered into a supply arrangement that would provide explicit instructions on how to bid (see certification 5 of the Association and Confidential Information Rules portion of the Auction Rules, section VI.E.4 in the BGS-CIEP Auction Rules and section VII.E.4 in the BGS-RSCP Auction Rules).  This is a restriction on supply arrangements that aims to prevent coordination of bidding of several bidders if these bidders all entered into supply arrangements that provided bidding instructions.

The Association and Confidential Information Rules attempt to place only necessary restrictions on supply arrangements and on day-to-day market activities.  Such restrictions are unavoidable if these rules are to meet their goals.  These rules may impact hedging activities and supply arrangements of bidders.  Each bidder should be aware of these rules at all times, should be aware of the entities that have become Qualified Bidders for the auction in which it is participating, and should be especially mindful of these rules from the start of the auction until the Board renders a decision on the auction results.  For additional information, see, for instance, FAQ-45, FAQ-46, and FAQ-47, as well as other questions and answers in the “Transactions and Hedging” section of this document.



11/21/2022, in Association and Confidential Information Rules.
FAQ-26

Do the Association and Confidential Information Rules permit or prohibit specific types of transactions?  If so, where can I find a list of such transactions?


The Association and Confidential Information Rules do not “permit” or “prohibit” any specific transaction. Rather, these rules focus on employing a system of certifications to ensure that competition in the auction is not compromised either because bidders are not bidding independently, or because a bidder gains superior information about its competitors that might affect the Auction Process. If a bidder is unable to make a certification, typically the bidder will make an information disclosure and the Auction Manager may ask for more information to decide, on a case-by-case basis, upon a remedy that will ensure that competitiveness at the auction is not jeopardized (see, for instance, FAQ-29).  A list of permitted or prohibited transactions is not feasible or practicable: a given transaction may in one context allow the bidder to make all the certifications in the Association and Confidential Information Rules, while the same bidder may be unable to make one or more certifications with respect to the same type of transaction in another context. The bidder must make this determination considering the full context in which the transaction is made.



11/21/2022, in Association and Confidential Information Rules.
FAQ-25

The Part 1 Application asks whether we will be “bidding independently”. Are there specific rules that define what it means to be bidding independently?


Yes. If a bidder is party to a bidding agreement with another party, is part of a bidding consortium or joint venture for the purpose of bidding in the auction, or is party to any arrangement involving joint or coordinate bidding with another party, then the bidder is not bidding independently.  Any such agreement and arrangement must be disclosed in the Part 1 Application.

Furthermore, the Association and Confidential Information Rules included in the BGS-RSCP Auction Rules (section VII.E.) and the BGS-CIEP Auction Rules (section VI.E.) provide specific criteria for one bidder to be associated with another bidder.  Such associations are links among bidders that may impede their ability to act independently.  Bidders are entirely responsible for reviewing these criteria and for evaluating their ability to make certifications in this regard.  Any such associations must be declared in the Part 2 Application. 



11/21/2022, in Association and Confidential Information Rules.
FAQ-24

What is the intent of the Association and Confidential Information Rules?


The intent of the Association and Confidential Information portion of the Auction Rules is to promote the competitiveness of the auction, to uphold the integrity of the Auction Process, to prohibit collusive arrangements, and to ensure that no bidder gains superior information regarding its competitors that might affect the Auction Process. A bidder shows compliance with these rules by making a number of certifications in the Part 1 Application and the Part 2 Application. If a bidder is able to make all the certifications, the bidder complies with the Association and Confidential Information Rules. The certifications ensure that the bidder is not part of a collusive arrangement, the bidder does not gain superior information regarding its competitors that might affect the Auction Process, and the bidder is not providing to others information related to the auction or its bidding strategy.



11/21/2022, in Association and Confidential Information Rules.
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FAQ-23

Can a winning BGS Supplier use another entity as an agent for its dealings with PJM?


Yes.



11/21/2022, in Association and Confidential Information Rules.
FAQ-22

If we present financial information for a Guarantor in the Part 1 Application and we are qualified on that basis, can we change the entity upon whose financial standing we are relying at a later time?


No.  The Auction Manager provides to each Qualified Bidder a notification of qualification that includes the requirements for presenting pre-auction security with the Part 2 Application. These requirements are based on the financial information provided in the Part 1 Application.  In particular, a Qualified Bidder that named a Guarantor in the Part 1 Application is required either

  • to provide a Pre-Auction Letter of Credit in an amount of $500,000 per tranche of the indicative offer at the maximum starting price and a Letter of Intent to Provide a Guaranty in an amount of $1.9M per tranche of the indicative offer at the maximum starting price; or:
  • to provide a Pre-Auction Letter of Credit in an amount of $2.4M per tranche of the indicative offer at the maximum starting price.

There is no mechanism or opportunity for the Qualified Bidder to request a creditworthiness assessment of another entity (including itself) after the Part 1 Application process is complete.



11/21/2022, in Pre-Auction Security.
FAQ-21

In the event that we become a winning bidder in the Auction, is it required for the Authorized Representative or the Officer who names the Authorized Representative in the Part 1 Application to be the individual who executes the applicable Supplier Master Agreement (“SMA”)?


Neither the Authorized Representative, nor the Officer who names the Authorized Representative in the Part 1 Application, is required to be the individual who would execute the applicable SMA should the bidder win at the Auction.

In the event that you become a winning bidder in the Auction, the entity that executes the applicable SMA must be the same entity that has agreed to the terms of the SMA in the Part 1 and Part 2 Applications. However, the individual who signs the SMA can be any officer or representative who is authorized to execute contracts and bind the bidder.



11/21/2022, in Supplier Master Agreement .
FAQ-20

Is an Applicant to the BGS Auctions required to be a Load-Serving Entity (“LSE”) in the PJM Interconnection, L.L.C. (“PJM”) at the time of submitting the Part 1 Application?


No, the Applicant is not required to be a PJM LSE at the time of submitting the Part 1 Application. However, if the Applicant is not a PJM LSE at the time of submitting the Part 1 Application, the Applicant must certify in its Part 1 Application that there exist no impediments for the Applicant to become a PJM LSE by the start of the supply period (by using the LSE Certification Insert labelled #P1-4).



11/21/2022, in Application.
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FAQ-19

We do not have an office in New Jersey and we do not have legal counsel in New Jersey. What are our options to comply with the requirements of Section 3 of the Part 1 Application?


Section 3 of the Part 1 Application does not compel the Applicant to have an office in New Jersey or to have legal counsel in New Jersey. Section 3 requires that the Applicant name a legal representative; for purposes of the Part 1 Application, a legal representative is a person or company that agrees to accept service of process on the Applicant’s behalf. The legal representative can be either legal counsel or a representative agent. The individual or company serving as the Applicant’s legal representative must provide an address in New Jersey. If a company agrees to accept service of process on your behalf, an individual from that company must sign the Legal Representative Insert (labelled #P1-3).  The name of the individual and contact information must be provided.



11/21/2022, in Application.
FAQ-18

We proposed modifications to the Pre-Auction and Post-Auction Letters of Credit in a prior BGS Auction.  Do we need to resubmit these modifications for consideration during the current process? 


If the modifications that you previously proposed appear in the list of Preliminary Acceptable Modifications to the Pre-Auction or Post-Auction Letters of Credit, posted to the Contract and Credit page of the ‘bidder info’ tab of the BGS Auction website on October 6, 2022, then there is no need to propose the same modifications again. 

If you are unsure or if some of your previously proposed modifications do not appear in the list of Preliminary Acceptable Modifications, then please resubmit your proposed modifications. For each proposed modification, the electric distribution companies (“EDCs”) will (i) revise the standard form; or (ii) approve the use of the modification on an optional basis; or (iii) reject the proposed modification. The BGS Auction Manager will respond to each potential bidder individually. Further, at the conclusion of the Comment Process, the BGS Auction Manager will post to the BGS Auction website the revised standard form for the Pre-Auction and Post-Auction Letters of Credit and will also post a single document listing all modifications to the standard form that are approved on an optional basis.

The deadline for submission of potential modifications is noon on October 25, 2022.  Please submit your proposed modifications to BGS-Auction@nera.com in accordance with the process described in the document "Comment Process on the Letters of Credit (Pre-Auction and Post-Auction) (October 6, 2022)", which is posted here: https://www.bgs-auction.com/bgs.bidinfo.cc.asp



10/17/2022, in Credit.
FAQ-17

It appears that the content of the Inserts has not changed since the 2022 BGS Auctions. Can we resubmit Inserts from the 2022 BGS Auctions for purposes of meeting the 2023 BGS Auctions’ application requirements? 


No. Each year the New Jersey Board of Public Utilities (“Board”) initiates a new proceeding for the upcoming BGS Auctions. Bidders thus must duly complete and submit the Inserts prepared for the specific BGS Auctions initiated by the proceeding; bidders may not submit Inserts and other documents related to prior BGS Auctions. 

The Illustrative Part 1 Form and Illustrative Part 2 Form posted to the Application Process page of the ‘bidder info’ tab of the BGS Auction website contain the list of application requirements, including the content of the Inserts, for the 2023 BGS Auctions. Final application materials and Inserts will be posted to the BGS Auction website as they become available



10/17/2022, in Application.
FAQ-16

When does the New Jersey Board of Public Utilities (“BPU” or “Board”) render its decision on the results of the BGS Auctions?


The Board is expected to render its decision on the results of the BGS-CIEP and BGS-RSCP Auctions within two business days of the close of the BGS-CIEP or BGS-RSCP Auction, whichever occurs later. The Board, at its discretion, has the option of rendering a decision on the results of one Auction and of rendering a decision on the results of the other Auction at different points in time. For example, the Board may render a decision on the first Auction that closes while the second Auction is still in progress.



10/11/2022, in General.
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FAQ-15

How long do the Auctions last? Can the Auctions continue for more than one business day?


The BGS-CIEP Auction is scheduled to start on Friday, February 3, 2023 and the BGS-RSCP Auction is scheduled to start on Monday, February 6, 2023.  Each Auction will end when the total excess supply in that Auction is equal to zero and no price for any EDC can tick down. For more details on the rules determining the end of an Auction, please see the Auction Rules posted to the “auction rules” page of the “bidder info” tab of the BGS Auction website.

Although the BGS-CIEP Auction and BGS-RSCP Auction have occasionally been completed in one business day, this is not always the case and is not one of the objectives for the Auctions. The Auction Manager cannot speculate when either Auction will close and it is entirely up to each bidder to make its own independent assessment and manage any risk associated with either Auction continuing for more than one business day.



10/11/2022, in General.

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