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Frequently Asked Questions - #52

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FAQ-52

Certification (4) in Insert #P2-1 required by the Part 2 Application reads: “PLEASE CERTIFY that you are not a party to any contract for the purchase of power that might be used as a 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 you to act in a way determined by the counterparty in the agreement and/or in concert with any other bidder in the BGS-RSCP Auction. Notwithstanding the above, you may, during negotiations prior to the BGS-RSCP Auction for contractual arrangements for power to serve BGS-RSCP load were you to be a winner at the BGS-RSCP Auction, 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.” An analogous certification is found in Insert #P2-3 required by the Part 2 Application for the BGS-CIEP Auction.

We believe that the latter part of this certification, starting with “Notwithstanding the above…” may allow a Qualified Bidder to enter into some types of transaction with a party before the auction.  Given the other certifications that a Qualified Bidder must make in the Part 2 Application, we assume that this party cannot be a Qualified Bidder.  Can you please elaborate on this portion of the certification, including confirming that it applies only to transactions with a party that is not a Qualified Bidder, explaining the types of transactions that are envisioned, as well as providing the precautions that a Qualified Bidder should put in place to ensure that it upholds its certifications from the Part 1 and the Part 2 Applications.


You are correct in your interpretation that the portion of certification (4) quoted in your question, which states that a Qualified Bidder may, during negotiations prior to the BGS-RSCP Auction for contractual arrangements for power to serve BGS-RSCP load were the Qualified Bidder to be a winner at the BGS-RSCP Auction, discuss with the counterparty to such arrangements the nature of the products to be purchased, the volume, and the price at which the Qualified Bidder is willing to buy these products, applies only if the counterparty in question is not a Qualified Bidder in the BGS-RSCP Auction.  This portion of certification (4) recognizes that a Qualified Bidder may buy in the wholesale market, from a counterparty that is not a Qualified Bidder in the BGS-RSCP Auction, products from which could be inferred information regarding the Qualified Bidder’s valuation of the BGS-RSCP Auction opportunity or interest in one EDC over another.  This exception does not apply to purchases from another (selling) Qualified Bidder as such purchases would mean that the other (selling) Qualified Bidder would have confidential information relative to the bidding strategy of the (purchasing) Qualified Bidder.  This exception only applies before the auction as any such negotiation from the time at which the auction begins to the time at which the Board renders a decision on the auction results would reveal confidential information regarding the Auction Process.  Transactions after the Board has rendered a decision on the auction results are not within the ambit of the Association and Confidential Information Rules (see, for instance, FAQ-44 and FAQ-51).

While the Qualified Bidder may discuss with the counterparty to an arrangement the nature of the products to be purchased, the volume, and the price at which it is willing to buy these products, the Qualified Bidder should take all measures to ensure that the counterparty will keep such information strictly confidential.  Further, such a transaction, or the negotiations toward such a transaction, should reveal no confidential information regarding the Auction Process beyond the possible inference that the Qualified Bidder is participating in the auction.  The Qualified Bidder should consider putting in place confidentiality agreements that would prevent the counterparty from providing information possibly revealed during negotiations to any other entity or that would prevent the counterparty from inadvertently revealing to the Qualified Bidder confidential information that it may have about another Qualified Bidder.  The Qualified Bidder should also take all due care to reveal the minimum amount of information and only in the context of negotiations of contractual arrangements for power to serve load won at the auction were it to be a winner, and only in the context of discussions with the counterparty as to the nature of the products to be purchased by the Qualified Bidder, the volume of any such products, and the prices of such products.

Transactions with a party that is not a Qualified Bidder based on negotiations as described above and with the safeguards discussed above, may allow the Qualified to make and uphold all certifications of the Part 2 Application even if the products transacted do not have realistic and feasible uses in addition to supplying load for BGS-RSCP load, or even if the products transacted constitute a product that is substantially informative of a bidder's valuation of the opportunity for serving BGS-RSCP load.

Such transactions could include, for example, the purchase of a load-following product coincident with the term of the supply period.  Such a transaction could reveal confidential information relative to the Qualified Bidder’s bidding strategy, as a load-following product may be a non-standard product that would substantially inform as to the Qualified Bidder’s valuation of the BGS-RSCP product for an EDC, and the safeguards discussed above are important in ensuring that the Qualified Bidder can continue to abide by its certifications even if it engages in such negotiations and transactions with a party that is not a Qualified Bidder.  Such transactions could include an arrangement that is contingent on the Qualified Bidder winning supply obligations in the auction and the Board approving the auction results.  All care must be taken so that such an arrangement or the negotiation toward such an arrangement reveals no confidential information regarding the Auction Process beyond the possible inference that the Qualified Bidder is participating in the auction.

We emphasize that the transactions and negotiations discussed in answer to this question apply before the auction (i.e., before bidding begins) as any such negotiation during the auction or immediately after (that is, prior to the Board rendering a decision on the auction results) could reveal confidential information regarding the Auction Process.



11/15/2021, in Association and Confidential Information Rules.

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