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Frequently Asked Questions - #73

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FAQ-73

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”.  Joint Bidder makes certifications for compliance with the Association and Confidential Information Rules (or makes appropriate information disclosures) that apply to both Entity A and Entity B.  These certifications are submitted by Entity A to apply to Joint Bidder or are submitted separately by Entity A and by 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.  Entity A alone submits any certification of the Part 2 Application that is applicable to the entity that would execute the Supplier Master Agreement should the entities participating in the Arrangement win at the auction.      

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(s) of Credit is(are) 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.  If Entity B submitted a Pre-Auction Letter of Credit, it is cancelled as soon as practicable after the Board decision.  The Pre-Auction Letter of Credit submitted by Entity A is 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).



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

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