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Frequently Asked Questions - #63

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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.

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

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