It is clear that any type of transaction negotiated and executed after the Board has rendered a decision on the auction results cannot possibly influence the auction outcome or the competitiveness at the auction. These transactions are not within the purview of the Association and Confidential Information Rules and such transactions would not violate certifications made in the application process. (Please note, however, that bidders do make undertakings that extend beyond the time at which the Board renders a decision on the auction results; for example, bidders do undertake not to disclose confidential information regarding the Auction Process. Please consult the Association and Confidential Information portion of the Auction Rules to review the time period during which each certification must hold.)
It is also clear that transactions during the auction are most likely problematic. A bidder that makes all certifications in its Part 2 Application undertakes not to reveal the status of its participation in the auction at any time. Furthermore, a Qualified Bidder undertakes not to take any action that would undermine the certifications that it made in the Part 2 Application. Any transaction made during the auction would need to avoid revealing the bidder’s continued participation in the auction, any confidential information relative to the bidder’s strategy, or any confidential information regarding the Auction Process. We find it difficult to see how any transaction during the auction, other than the purchase and sale of standard traded products that the parties would trade in the normal course of business (see, for instance FAQ-32, FAQ-33, FAQ-37, FAQ-40, and FAQ-49), would allow the Qualified Bidder to continue abiding by all its certifications.
Transactions before the auction may or may not prevent a Qualified Bidder from making or upholding all certifications in the Part 2 Application. As emphasized in FAQ-32 and FAQ-33, the Association and Confidential Information Rules do not provide a list of permitted or prohibited transactions as a given transaction may in one context allow the bidder to make all certifications, while the same bidder may be unable to make one or more certifications with respect to the same type of transaction in another context. One consideration is whether the counterparty is also a Qualified Bidder. For additional information, see, for instance, FAQ-47, FAQ-48, FAQ-49, FAQ-50, FAQ-52, FAQ-53, and FAQ-54.
11/15/2021, in Association and Confidential Information Rules.