Supreme Court E-Library
Information At Your Fingertips

  View printer friendly version

(a) Highways, including expressways, roads, bridges, interchanges, tunnels, viaducts, and related facilities;

(b) Land transportation systems, including railways, road-based transportation systems, bus rapid transit, high priority public utility vehicle systems, active transportation, transit-oriented developments, public utility vehicle stations, transport plazas, intermodal terminals, park and ride, and related facilities;

(c) Transport and traffic management projects, including transportation databases, automated fare and toll collection systems, traffic signaling, traffic monitoring systems, traffic enforcement systems, congestion and management systems, and related facilities;

(d) Port infrastructure like piers, wharves, quays, storage, handling, roll-on roll-off facilities, and other related facilities;

(e) Maritime infrastructure like navigable inland waterways, shipping and ferry services, shipping vessels or components thereof, shipping and freight enterprises, and related facilities;

(f) Airports, air navigation, and related facilities;

(g) Power generation, transmission, sub-transmission, distribution, including hydropower plants, and related facilities;

(h) Downstream oil and gas industry facilities, and other energy-related facilities;

(i) Energy efficiency and conservation, renewable energy, and electric vehicle charging stations, and related facilities;

(j) Telecommunications, backbone network, terrestrial, aerial, and space infrastructure, and related service facilities;

(k) Information technology networks and database infrastructure, gee-spatial resource mapping, cadastral survey for resource accounting and planning, and related facilities;

(l) Irrigation and related facilities;

(m) Water supply, sewerage, drainage, waste water and water treatment, desalination, and related facilities;

(n) Educational infrastructure, including technological equipment used to facilitate learning and teaching, and related facilities;

(o) Health infrastructure, hospitals, clinics, research facilities, clinical laboratories, and other related facilities;

(p) Multi-purpose water resources projects covering a combination of irrigation, power, water supply, flood control, and related facilities;

(q) Land reclamation, dredging, flood control projects, and related facilities;

(r) Industrial and tourism estates or townships, including ecotourism projects such as terrestrial and coastal/marine nature parks, among others and related infrastructure facilities and utilities;

(s) Government buildings, convention centers, and other related facilities;

(t) Urban redevelopment, townships, and housing projects;

(u) Heritage preservation and adaptive reuse projects;

(v) Markets, slaughterhouses, trading posts, and related facilities; (w) Warehouses and post-harvest facilities;

(x) Public fish ports and fishponds, including storage and processing facilities;

(y) Agri-fishery industrial hubs, agribusiness facilities, agricultural research facilities, agricultural estates, agrilogistics systems, contract farming, and related facilities;

(z) Cold chain systems or centers, and related-facilities;

(aa) Prisons, lease of security-related government assets, O&M of military facilities and equipment, and other national defense or security-related facilities;

(bb) Environmental and solid waste management related facilities such as but not limited to waste collection, transportation and disposal facilities, transfer stations, composting plants, material recovery, landfill, and tidal barriers, among others;

(cc) Climate change adaptation and mitigation and disaster risk reduction and management infrastructure projects, biodiversity conservation projects, and related facilities; and

(dd) Other Infrastructure or Development Projects and Services, as may be authorized by the Implementing Agency pursuant to the Code and this IRR, and following applicable laws, rules, and regulations.

(a) JVs as defined in the Code and this IRR;

(b) Toll operation agreements or supplemental toll operation agreements, or any contractual arrangements involving the Construction, O&M, or a combination or variation thereof, of toll facilities in accordance with PD No. 1112 series of 1977, PD No. 1113, series of 1977, and PD No. 1894, series of 1983;

(c) Lease agreements providing for the rehabilitation, operation, and/or maintenance, including the provision of working capital and/or improvements to, by the Private Partner of an existing land or facility owned by the government for a fixed period of time covering more than one (1) year;

(d) Lease agreements, when such lease is a component of a PPP Project, as defined under the Code and this IRR;

(e) Build-Operate-Transfer (BOT) and its variants such as, but not limited to, Build-and­ Transfer (BT), Build-Lease-and-Transfer (BLT), Build-Own-and-Operate (BOO), Build-Transfer-and-Operate (BTO), Contract-Add-and-Operate (CAO), Add-Operate­ and-Transfer (AOT), Develop-Operate-and-Transfer (DOT), Rehabilitate-Operate­ and-Transfer (ROT), and Rehabilitate-Own-and-Operate (ROO); and

(f) O&M.

(a) Infrastructure or development projects  and services  procured under  RA No. 9184  or the "Government Procurement Reform Act" (GPRA);

(b) Infrastructure projects exclusively funded through foreign loans and grants covered  by RA  No.  8182,  as  amended  by  RA  No.  8555,  titled "An  Act Excluding  Official Development Assistance (ODA)  from the Foreign  Debt Limit  in order to facilitate  the absorption  and optimize  the utilization  of ODA  resources, amending for the purpose paragraph 1, Section  2 of RA No. 4860, as amended," unless  the Government of the Philippines and the foreign  grantor/foreign or international financing  institution agree otherwise;

(c)  management contracts  which do not possess  elements  of a PPP as defined in Section 4(rr) of this IRR; Provided, That for purposes of this IRR, "management contracts"  shall be understood to exclude  O&M PPP Projects;

(d) service  contracts  such as the following:

(i)  coal service  contracts  contemplated by PD No. 972,  as amended, or the "Coal Development Act of 1976";

(ii)  petroleum service  contracts  contemplated by RA No. 387,  as amended, or the "Petroleum Act of 1949";

(iii) agreements contemplated by  RA  No.  7942,  or the "Philippine Mining  Act  of 1995";

(iv) renewable energy  service  or operating  contracts  awarded  pursuant  to RA No. 9513,  or the "Renewable Energy  Act of 2008": Provided, That if the renewable energy  project  or renewable energy  service  or operating  contract  is bundled  as a component  of  a  PPP  Project,  such  shall  be  considered a  PPP  and  shall therefore  be subject to the provisions of the Code and this IRR; and

(v)  service  contracts  contemplated by the relevant  circulars of the Commission on Audit (COA) and Department of Budget and Management (DBM);

(e) divestments or  dispositions which  refer  to  the  manner  or  scheme  of taking  away, depriving, withdrawing of an authority,  power or title over a government asset;

(f)  corporatization or transfer  of  any  government assets  and  liabilities,  staff,  and  the ongoing  business of a utility into a public corporation;

(g) incorporation of subsidiaries with private sector equity;

(h) onerous donations which refer to a donation subject to burdens, considerations,  or future services equal to or more in value than the thing donated;

(i)  gratuitous donations which refer to a donation disposed by a person without charge, in favor of another who accepts it;

(j) joint venture and lease agreements involving purely commercial  arrangements that neither provide nor include public infrastructure or development  services, and which do not satisfy the elements of a PPP as defined in Section 4(rr) of this IRR.

(a) A newly  established  unit,  office,  committee,  or group,  which  shall  serve  as focal persons for PPP projects, and subject to applicable laws, rules, and regulations; or

(b) An existing unit, office, committee, or group designated to shoulder the responsibilities set forth in this section.

(a) The PPP unit of national Implementing Agencies shall be headed by a senior official who is at least a third ranking official of the Implementing Agency holding a plantilla position. For purposes of this section, 'plantilla' shall refer to government employees' positions included in the Personal Services Itemization approved by the DBM.

(b) The PPP unit shall be composed  of the following m1n1mum members who are knowledgeable on PPPs, and shall be under the supervision of the head of the PPP unit:

(i)  Technical personnel for planning;

(ii)  Technical personnel for project development;

(iii) Technical personnel for contract management;

(iv) Finance personnel; and

(v) Legal personnel.

Such personnel may be outsourced by the Implementing Agency.

(c) The national Implementing Agency may, subject to its discretion, add any other personnel which it deems relevant and necessary to carry out the functions of the PPP unit.

(a) Effectiveness in meeting government objectives;

(b) Appropriateness of the chosen procurement modality and source of funding;

(c)  Preliminary indicators of VFM,  economic viability, and financial viability;

(d) Accountability and transparency; (e) Consumer rights;

(f)  Affordability;

(g) Market acceptability and commercial attractiveness; and

(h) Public access, safety, and security.

(a) For National PPP Projects:

(i)  NEDA;

(ii) PPP Center; and

(iii) Regional development councils (RDCs) concerned;

(b) For Local PPP Projects:

(i)  NEDA;

(ii)  PPP Center;

(iii) RDCs concerned; and

(iv) Local Sanggunian concerned.

(a) Legal, technical, economic, and financial feasibility of the PPP Project;

(b) VFM of the proposed PPP Project;

(c) Optimal risk allocation;

(d) Affordability of Tariffs;

(e) Climate resilience and sustainability;

(f)  Commercial feasibility and market acceptability;

(g) Social and environmental safeguards;

(h) Lessons learned from previous or ongoing PPP Projects; and

(i)  Whole-of-government approach.

(a) Problem definition or statement of objectives;

(b) Project description;

(c) Project context in the Implementing  Agency's overall strategy or program,  including information on which sectoral plan and/or investment program the project is included in;

(d) Sectoral program context;

(e) Regional and spatial context;

(f)  Expected outcomes and KPIs, including means for verification and key assumptions;

(g) Analysis of technical solutions or alternatives, including analysis of risks and impact;

(h) Project Cost;

(i)  Legal due diligence,  which includes policy and regulatory framework of the market/s affected by the project, and institutional analysis;

(j)  Demand  and supply/market  analysis including the supply chain of market/s affected; identification of potential competitors or entities that provide substitutable products or services with the proposed PPP Project and their corresponding market shares; alternatives available to suppliers and users of the proposed PPP Project; barriers to entry into the markets affected by the proposed PPP Project, and other information on industry structure and prevailing conditions of the market;

(k) Market sounding feedback, in the case of Solicited Projects;

(l)  Information on the proposed Tariff structure;

(m) Financial  analysis,  which  includes  information  on  projected  financial  statements consistent with the Financial Model;

(n) Economic  analysis,  which includes  information  on  economic  benefits  and  costs consistent with the Economic Model;

(o) Social and environmental analysis, including project safeguards with regard to, among others, environmental quality, natural resources sustainability, climate change and hazards, equity in development benefits, GEDSI, disability and accessibility, and health;

(p) Risk allocation and risk mitigating plan;

(q) VFM analysis, in the case of Solicited Projects;

(r)  Information supporting the assumptions used in the demand, financial, economic and VFM analysis, and other assertions and representations made in the Feasibility Study;

(s) PPP contractual  arrangement  options and assessment  of the proposed  contractual arrangement;

(t)  Information on job creation or impact from development to O&M of the project, which includes corresponding disaggregated data on sex and disability, and amount of wages/salaries;

(u) Land acquisition and resettlement action plan, as applicable;

(v) Heritage impact assessment, if applicable;

(w) Geotechnical report, if applicable;

(x) Description of the products or services to be provided and its target users or consumers; and

(y) Description  of the  geographic  or catchment  area where  the Private  Proponent  will operate.

(a) Revenue-based - refers to a scheme where the Private Partner is authorized to charge and collect, in whole or in part, from users, reasonable Tariff subject to appropriate regulation in accordance with Section 13 of the Code and Title IX of this IRR. Where applicable, the Private Partner may likewise be repaid in the form of a share in the revenue of the PPP Project;

(b) Availability-based - refers to a scheme where the Implementing Agency commits to make predetermined payments, which do not take the form of charges paid by the users of the works or of the service, but of regular payments by the Implementing Agency in exchange of delivering an asset or service in accordance with the PPP Contract; and

(c) Other investment recovery schemes, such as commercial development rights, or the grant of a portion or percentage of the reclaimed land, subject to the constitutional requirements on land ownership, may also be allowed in both Solicited Projects and Unsolicited  Proposals to supplement  the foregoing  schemes:  Provided, That such investment  recovery  scheme  involving  the  grant  of a portion  or  percentage  of a reclaimed land shall be subject to fair valuation by a Third-party Appraiser.

Section 24.1. For National PPP Projects with Project Cost of Fifteen billion pesos (Php15,000,000,000.00) and above, the Approving Body shall be the NEDA Board, upon favorable recommendation by the ICC.

The NEDA Board shall render its decision on the PPP Project within one hundred twenty (120) calendar days upon determination of the completeness of submitted requirements for purposes of approval, pursuant to Section 7 of the Code and Section 29 of this IRR and the procedural guidelines to be issued by the ICC referred to in Section 31 of this IRR.

Section 24.2. For National PPP Projects to be implemented by SUCs with a Project Cost of Fifteen billion pesos (Php15,000,000,000.00) and above but do not require any Government Undertaking from the national government, a green lane process shall be established. For this purpose, the detailed procedural guidelines to be issued by the ICC referred to in Section 31 of this IRR shall contain the following:

(a) list of documentary requirements;

(b) guidance  on  what  constitutes  Government  Undertakings  described  in  this subsection; and

(c) procedures  and  mechanisms  to  facilitate,  simplify,  and  expedite  the  approval process for projects under the green lane, such as the creation of a subcommittee to whom the review of projects under the green lane can be delegated.

Section 24.3. For National PPP Projects with Project Cost of below Fifteen billion pesos (Php15,000,000,000.00), the Approving Body shall be as follows, whichever is applicable:

(a) For Implementing Agencies with a governing board, whether or not it is an attached agency, the respective governing board;

(b) For attached agencies without a governing board, the head of the department or agency to which the Implementing Agency is attached; or

(c) For Implementing  Agencies without a governing  board  or a mother agency,  the Head of the Implementing Agency.

If the Approving Body is the Head of the Agency to which the Implementing Agency is attached or its governing board, the appropriate Approving Body shall render its decision in writing on the National PPP Project within ninety (90) calendar days from receipt of complete requirements for purposes of review and approval, in accordance with Section 29 of this IRR. Such period may be extended up to one hundred twenty (120) calendar days, subject to the procedural guidelines to be issued by the ICC.

If the Approving  Body is the Head of Implementing Agency,  the Implementing Agency shall issue its guidelines for approval that outline the process of its review and approval of National PPP Projects with Project Cost of below Fifteen billion pesos (Php15,000,000,000.00).  These guidelines  shall be consistent  with the Code and this IRR, and shall adhere to the procedural guidelines to be issued by the ICC, and the following principles:

(a) A focal person or a focal unit of the Implementing Agency shall review the project and submit its recommendations to the Head of Implementing Agency with the complete requirements for purposes of review and approval;

(b) The Head of the Implementing Agency shall render its decision in writing within ninety (90) calendar days upon receipt of the complete requirements for purposes of review and approval. Such period may be extended up to one hundred twenty (120) calendar days, subject to the procedural guidelines to be issued by the ICC; and

(c) The processing and approval of each PPP Project shall be well documented using the forms and templates prescribed by the ICC.

To ensure proper monitoring, all Implementing Agencies shall submit a copy of their procedural guidelines to the PPP Center within seven (7) calendar days from approval of the Head of Implementing Agency. It shall also submit any changes to the guidelines to the PPP Center within seven (7) calendar days from approval of the Head of Implementing Agency. In case there are inconsistencies between the Code and this IRR, and the guidelines for approval to be issued by the Implementing Agencies, precedence will be given to the Code and this IRR.

For monitoring purposes, the Implementing Agencies of PPP Projects approved under Section 24.3 of this IRR shall notify the NEDA and the PPP Center in writing of the details of the PPP Project, and submit the complete set of project documents in accordance with the procedural guidelines to be issued by the ICC.

The Approving Body may consult with the DOF prior to approval in respect of the feasibility of the Government Undertakings and/or Availability Payments, regardless of source of funds, involved in PPP Projects contemplated under this Section 24.3 of this IRR, subject to the requirements of existing laws, rules, and regulations. The DOF shall issue a non-binding letter in relation to the results of the consultation within twenty (20) calendar days from the request of the Implementing Agency.

Section 24.4. Notwithstanding the above, a proposed National PPP Project with Project Cost of below Fifteen billion pesos (Php15,000,000,000.00) shall be approved by the ICC in any of the following circumstances:

(a) The proposed National PPP Project physically overlaps with a project approved by a government authority or with a project being developed by another government entity based on the CLIPs.

(b) The proposed National PPP Project negatively affects the economic benefits, demand, and/or financial viability of a project approved by a government authority, or a project being developed by another government entity based on the CLIPs.

(c) The proposed National PPP Project requires financial Government Undertakings to be sourced and funded under the General Appropriations Act (GAA). Government Undertaking in the form of ROW and other ROW-related undertakings, including support in ROW acquisition, shall not be considered as a financial Government Undertaking under this sub-item. For avoidance of doubt, the Private Proponent shall pay or reimburse the Implementing Agency the actual cost of the ROW and other ROW-related undertakings.

(d) The proposed  PPP Project  involves  Availability  Payments  to be sourced  and funded under the GAA.

(e) The  contribution  of  an Implementing  Agency  in  a  proposed  JV  exceeds  fifty percent (50°/o) of its entire assets based on either the average of its values for the last three (3) years or the latest audited financial statement, whichever is lower, and subject to Section 3(gg) of the Code.

For the determination of whether a National PPP Project falls under any of the items listed as (a) to (e) above, the provisions under Section 25 of this IRR shall apply.

Section 25.1. Physical Overlap with  or Negative  Effects on Another Project. To determine if the proposed National PPP Project has any physical overlap with or has negative effects on the economic benefits, demand, and/or financial viability of another project  approved  by a government  authority  or with a project being developed  by another government entity based on the CLIPs or with existing operational facility, the Implementing Agency shall check such National PPP Project against the CLIPs and the List of PPP Projects referred to in Title Ill, Chapter 2 of this IRR as published by the PPP Center. The following factors shall be considered in such determination:

(a) The proposed PPP Project or a significant part thereof has the same alignment or site;

(b) The proposed PPP Project or a significant part thereof has the same catchment area; or

(c) The proposed PPP Project caters to affected markets or groups such that it may negatively  affect  the  economic  benefits,  demand,  and/or  financial  viability  of another project as described under this subsection.

If the Implementing Agency deems that the information in the CLIPs and in the List of PPP Projects  are  insufficient  for  its  determination,  the  Implementing  Agency  shall  be responsible for validating the existence of a physical overlap or of negative effects contemplated herein with the relevant government agencies _ A finding of the existence of any physical overlap or of negative effects pursuant to this section will subject the National PPP Project to ICC approval.

The Implementing Agency shall take such steps necessary to confirm that the proposed project is in accordance with the overall mandate of the department, bureau, agency, or office of the government that has regulatory authority over the proposed and existing projects.

Section 25.2. Requiring Government Undertakings or Availability Payments to be funded by GAA. A National PPP Project which requires financial Government Undertakings,  such  as Subsidy,  VGF,  and any similar  financial instrument,  or which includes Availability Payments, shall be subject to ICC approval should such Government Undertakings or Availability Payments be sourced and funded under the GAA.

For avoidance of doubt, if a National PPP Project requires Government Undertakings or Availability Payments sourced from funds other than the GAA, such project shall not be subject to approval of the ICC.

Section  25.3. JV Contribution of Implementing Agency  Exceeds Fifty  Percent of Assets. In determining whether the contribution of an Implementing Agency to a proposed JV exceeds fifty percent (50°/o) of its entire assets, information from its latest audited financial statements and other pertinent documents such as, but not limited to valuation reports by Third-party Appraisers, development plans, financial performance reports, and management reports, shall be considered. Such contribution must be valued according to accepted  standard  methodologies  and  practices  commensurate  to  the nature  of the assets.

The assets contemplated herein shall refer to the entire assets, whether current or noncurrent, of the Implementing Agency at the time of its submission of the National PPP Project to the Approving Body, and not the assets of the subject PPP Project.

For PPP Projects that do not fall under any of the above, the Implementing Agency shall notify the NEDA and the PPP Center in writing of such information and submit the project details for monitoring purposes.

For PPP Projects which have been determined to not fall under any or more of the scenarios falling under Sections 25.1, 25.2, and 25.3 above and have been reported to NEDA and the PPP Center as such pursuant to Section 7 of the Code, NEDA and the PPP Center may:

(a) Validate scenarios falling under Section 25.1 above through the CLIPs, the List of PPP Projects, and the project documents; and

(b) Validate scenarios falling under Section 25.2 above with the ICC.

Upon finding that a National PPP Project falling under any of the above scenarios has not been brought before the ICC for its approval, the NEDA or the PPP Center shall notify the concerned Implementing Agency and the ICC of such fact within seven (7) calendar days from its finding. The Implementing Agency, upon receipt of such notice from NEDA or the PPP Center,  shall  subject  the  concerned  National  PPP  Project  to  ICC  approval  under  the procedures laid down in the Code and in this IRR. Failure to comply shall constitute a violation of Section 7 of the Code and shall subject the Implementing Agency to the corresponding penalties provided in Section 32 of the Code.

Prior to making a determination on whether its proposed National PPP Project falls under any or more of the scenarios falling under Sections 25.1, 25.2, and 25.3 above which would subject such project to ICC approval, an Implementing Agency may request for a consultation with the PPP Center on whether its proposed National PPP Project falls under any such scenarios. The PPP Center may provide a non-binding opinion to the Implementing Agency and such non-binding opinion shall not be controlling or take precedence over the Implementing Agency's own determination or of a later determination by NEDA or the PPP Center for the determination of existence of any physical overlap or negative effects.

The determination of the Implementing Agency that its project does not fall in any of the scenarios contemplated above may be subject to further validation pursuant to guidelines the ICC may issue on the matter.

(a) project context and objectives are clearly specified;

(b) scope, outputs, and performance indicators of the project are clearly specified;

(c)  proposed project is technically feasible and is optimal, considering,  among others, the technical requirements of gender and persons with disability in accordance with existing laws, rules, and regulations;

(d)  proposed  project  has  an  environment,  climate  change,  and  social  safeguards framework including identified risks and mitigating measures;

(e) Project  Cost  is  sufficient  to  achieve  the  technical  requirements  of  the  project, including  the general performance standards and targets  set for the project, and those components needed to meet gender, social, and environmental standards;

(f)  operating costs are sufficient to achieve the operational requirements;

(g)  project is economically  viable, and the information used are reasonable and robust to determine viability;

(h) VFM analysis shows that PPP modality is the more viable procurement option than traditional government procurement;

(i) project is financially viable for investors at the project level, and the information used are reasonable and robust to determine viability;

(j) project's cash flows are healthy and sufficient to service debt obligations;

(k)  risk  allocation  complies  with  the  GPRAM.  Any  deviation  to  the  proposed  risk allocation shall be justified by the Implementing Agency and shall be approved by the appropriate Approving Body;

(l) Government  Undertakings  and investment  recovery  schemes  are justified by the Implementing Agency;

(m) proposed bid parameter is the most advantageous to the government, fosters competition, fairness, and transparency, and ensures the best interest of the public

(n)  Implementing Agency has the capability to deliver its assumed obligations for the project;

(o) proposed Tariff regime is affordable to users; and

(p) fiscal consideration are sufficiently provided, including Contingent Liabilities, foregone  government  revenue  streams,  and  indirect  costs  associated  with  the project.

(a) complete Feasibility Study as defined in Section 19 of this IRR;

(b) traceable Economic and Financial Models in electronic copy;

(c) proposed PTCs;

(d) VFM analysis;

(e) Valuation report, as applicable, in accordance with Title XII of this IRR;

(f) documentation  of  the  stakeholders'  consultations  conducted,  including  the participating sector or communities consulted; and

(g) Other documents, information, or materials that may be required by the ICC in its procedural guidelines, including the forms and templates, needed to commence review of the project.

(a)  Scope of the PPP Project;

(b)  Contractual arrangement;

(c)  Contract  duration;

(d)  Rights  and obligations of the Implementing Agency  and the Private  Proponent,  and corresponding penalties for failure to fulfill obligations under the PPP Contract;

(e)  Performance standards  and targets upon which the KPis, targets, and measurement for  monitoring  and  reporting  results  may  be  derived  in  preparing  the  draft  PPP Contract;

(f) Safeguards that will protect the interests  of the government and the public;

(g)  Investment recovery  scheme,  including  terms of payment; (h)  Revenue  share for the government,  if any;

(i) Government Undertakings, including  appropriate compensation to the government, as applicable;

(j)  Risk allocation for the PPP Project, including  a risk mitigation plan for risks assumed by the Government;

(k)  Contingent Liabilities  arising  from risks including  an intent to avail of the PPP Risk Management Fund, as applicable;

(l) Bid parameter;

(m)  Ceiling for debt-to-equity ratio;

(n)  In  case  of  Solicited  Projects,  the  proposed  public  bidding  process,  i.e.,  whether single-stage or two-stage;  and

(o)  In  case  of Unsolicited Proposals,  the  proposed  period  for  comparative  challenge process,  whether  single-stage  or two-stage,  i.e., not less than ninety (90) calendar days and not more than one (1) year.

(a) Review and approval of proposed changes for approved PTCs prior to bid submission;

(b) In case of Unsolicited Proposals, guidelines on cases where the appropriate Approving Body requires PTCs outside of the negotiated PTCs;

(c) In case of single complying and responsive solicited bids, the determination of RROR;

(d) Review and approval of proposed variation, expansion, or extension of an existing PPP Project requiring the approval of the appropriate Approving Body; and

(e) Guidelines on cases where the appropriate Approving Body failed to render its decision on a PPP Project within one hundred twenty (120) calendar days from receipt of complete requirements.

(a) NEDA Board -at least once a month;

(b) ICC Cabinet Committee- at least once a month;

(c) ICC Technical Board- at least twice a month.

(a) a letter request for such confirmation;

(b) the PTC forms for the project; and

(c) other documentary requirements to be issued by the PPP Governing Board in the procedural guidelines it shall issue.

(i)  Review if the project is aligned and consistent with local development plans;

(ii)  Review the proposed project and identify concerns to aid the decision of the Approving Body during approval; and

(iii) Submit such confirmation and the results of review to the Approving Body.

(a) Guarantees on Demand;

(b) Guarantees on Private Sector Return;

(c) Guarantees on Loan Repayment;

(d) VGF and other forms of Subsidy; and/or

(e) Monetary payment of Contingent Liability. through the PPP Risk Management Fund of the national government.

(a) project  context  and objectives  are clearly specified;

(b) scope,  outputs,  and performance indicators  of the project are clearly specified;

(c)  proposed  project is technically  feasible and is optimal, considering, among others, the technical  requirements of  gender  and  persons  with  disability  in  accordance  with existing laws, rules, and regulations;

(d) proposed  project  has  an  environment,  climate  change,  and  social  safeguards framework  including  identified  risks and mitigating  measures;

(e) Project Cost is sufficient to achieve the technical requirements of the project, including the  general  performance  standards  and  targets  set  for  the  project,  and  those components needed to meet gender,  social, and environmental standards;

(f)  operating  costs are sufficient  to achieve the operational requirements;

(g) project  is economically viable,  and the information used are reasonable and robust  to determine  viability;

(h) VFM analysis shows that PPP modality is the more viable procurement option than traditional government procurement;

(i)  project  is financially  viable  for investors  at the project  level,  and the information used are reasonable and robust to determine  viability;

(j) protect's cash flows are healthy and sufficient to service debt obligations

(k)  risk allocation  complies  with the GPRAM.  Any deviation to the proposed  risk allocation shall be justified by the Implementing Agency and shall be approved by the appropriate Approving  Body;

(l)  Government Undertakings and  investment recovery  schemes are  justified  by  the Implementing Agency;

(m) proposed  bid  parameter  is  the  most  advantageous  to  the  government,  fosters competition, fairness,  and transparency, and ensures the best interest  of the public;

(n) Implementing Agency  has  the  capability  to  deliver  its  assumed obligations for  the project;

(o) proposed  Tariff regime is affordable  to users; and

(p) fiscal considerations are sufficiently provided, including Contingent Liabilities, foregone government revenue  streams, and indirect costs associated with the project.

(a) complete  Feasibility  Study as defined in Section 19 of this IRR;

(b) traceable Economic  and Financial Models  in electronic  copy;

(c)  proposed PTCs;

(d) VFM analysis;

(e) Valuation report,  as applicable, in accordance with Title XII of this IRR;

(f) documentation of  the  stakeholders'  consultations  conducted,  including  the participating sector or communities consulted;  and

(g) Other documents, information, or materials that may be required by the PPP Governing Board in its procedural guidelines, including  the forms and templates, needed  to commence review  of the project.

(a) Scope of the PPP Project;

(b) Contractual arrangement;

(c)  Contract  duration;

(d) Rights  and  obligations of the Implementing Agency  and the Private  Proponent, and corresponding penalties  for failure to fulfill obligations under the PPP Contract;

(e) Performance standards and targets upon which the KPis, targets, and measurement for  monitoring  and  reporting  results  may  be  derived  in  preparing  the  draft  PPP Contract;

(f)  Safeguards that will protect the interests of the government and the public;

(g) Investment recovery scheme, including terms of payment;

(h) Revenue share for the government, if any;

(i)  Government Undertakings, including appropriate compensation to the government, as applicable;

(j)  Risk allocation for the PPP Project, including a risk mitigation plan for risks assumed by the Government;

(k) Contingent Liabilities arising from risks including an intent to avail of the PPP Risk Management Fund, as applicable;

(l)  Bid parameter;

(m) Ceiling for debt-to-equity ratio;

(n) In case of Solicited Projects, the proposed public bidding process, i.e., whether single­stage or two-stage; and

(o) In case of Unsolicited Proposals, the proposed period for comparative challenge process,  whether single-stage or two-stage, i.e., not less than ninety (90) calendar days and not more than one (1) year.

(a) Copies  of invoices  and proofs of payment for services  provided to the project, as certified by the COA;

(b) Contract  of  Consulting  Services  or  similar  contractual  agreement/s  covering  the services paid;

(c) Copies of outputs (e.g., Feasibility Study, business case, survey) for the services paid;

(d) Copies of official receipt for other expenses incurred for the project, as certified by COA; or

(e) Certificate  of taxes withheld and proof of tax remittances  to the Bureau of Internal Revenue (BIR), as certified by COA.

(a) VGF and other forms of Subsidy;

(b) Payment of ROW-related costs;

(c) Performance Undertaking;

(d) Additional exemptions from any tax specifically provided for the PPP Project through a legal issuance, other than those provided for by applicable laws;

(e) Guarantee on Demand;

(f)  Guarantee on Loan Repayment;

(g) Guarantee on Private Sector Return;

(h) Government Equity;

(i)  Credit Enhancements; and

(j)  Contribution of assets, properties, and/or rights.

(a) Complete Feasibility Study;

(b) Traceable Economic and Financial Models;

(c) Minimum PTCs that will provide sufficient information for the Implementing Agency to decide on the Unsolicited Proposal;

(d) Certification that the Unsolicited Proposal does not possess prohibited Government Undertakings;

(e) Valuation report, as applicable, in accordance with Title XII of this IRR;

(f) Proposed Implementing Agency;

(g) Information on the qualifications of the Private Proponent;

(h) Draft PPP Contract; and

(i)  Project site plan.

(a) If the Implementing Agency  is not developing a Solicited  Project  with  similar  scope and/or objective  as the Unsolicited Proposal,  the Implementing Agency shall:

(i)  Continue  processing the Unsolicited Proposal  pursuant  to Section  55 of this IRR; or

(ii)  Reject  the Unsolicited Proposal  if such proposal is deemed  not aligned  with the development plans of the Implementing Agency.

(b) If the  Implementing Agency  is  already  developing a solicited  proposal with  similar scope and/or objective  as the Unsolicited Proposal,  the Implementing Agency shall:

(i)  Continue  processing the Unsolicited Proposal and cease processing the Solicited Project  with similar  scope  and/or  objective  already  being  developed, subject  to rules on reimbursement provided  in Section 49 of this IRR; or

(ii)  Continue  processing the Solicited  Project and reject the Unsolicited Proposal.

(a) Validate  the absence  of prohibited  Government Undertakings under Chapter  2 of this title and Availability  Payments  to be sourced  and funded  under  national  government funds through  general appropriations;

(b) Validate  the  absence  or  presence  of  physical  overlaps  with  a  project/s  or  with  a project/s  being developed by the Implementing Agency  or any government authority, based  on the List of PPP Projects  and the CLIPs;

(c)  Assess the appropriateness of the contractual arrangement and reasonableness of the proposed  risk allocation  considering the GPRAM; (d) Review  the proposed  PTCs for the PPP Project;

(e) Evaluate  the  robustness of the  valuation  by  Third-party  Appraiser/s for the  assets, properties,  and/or  rights proposed  to be contributed by the government, if any, to the PPP Project;

(f)  Assess  the appropriateness of the compensation to the government for Government Undertakings, if any, relative to the valuation  by Third-party  Appraiser/s;

(g) Conduct  detailed  review  of the technical,  financial,  and  economic viability,  the corresponding Economic  and  Financial  Models,  and  the  Project  Cost  of  the  PPP Project, pursuant to the criteria set under Sections 28 and 39 of this IRR, including verification and vetting of the assumptions and estimates used;

(h) Conduct  a preliminary VFM analysis for the Unsolicited Proposal; (i)  Assess the qualifications of the Private Proponent;

(j) Consider market sounding feedback; and

(k)  Assess the entirety of the proposed  project pursuant  to the guidelines to be issued by the ICC.

(a) Economic viability of the project;

(b) Financial viability of the project;

(c) Proposed project scope and terms;

(d) Investment recovery scheme;

(e) Risks proposed to be assumed by the government; and

(f)  Qualifications of the Private Proponent, including its shareholdings of the consortia, if applicable.

(a) Accept the proposal and proceed to negotiation pursuant to Section 58 of this IRR;

(b) In case multiple Unsolicited Proposals for the same or similar project, accept the most advantageous proposal, proceed to negotiation under Section 58 of this IRR, and reject all other proposals;

(c) Reject the Unsolicited Proposal or all similar proposals; or

(d) Reject the Unsolicited Proposal or all similar proposals and bid out the project as a Solicited Project.

(a) A team lead officially designated by the Head of the Implementing Agency;

(b) A legal officer;

(c) An officer knowledgeable in finance; and

(d) An officer knowledgeable in the technical aspects and/or management and operations of the project.

Section 58.1. Successful Negotiation. If negotiation is successful, the Implementing Agency shall grant an OPS to the Private Proponent, which shall be valid for a period not exceeding one (1) year from conferment.

The Implementing Agency and the Private Proponent shall submit the complete set of requirements for approval, including the negotiated PTCs, to the appropriate Approving Body, within thirty (30) calendar days from the end of negotiation.

If the Approving Body for a PPP Project is the Head of Implementing Agency, it shall confirm that all requirements have been met and approve the negotiated PTCs. The Head of the Implementing Agency shall provide the PPP Center with the complete set of requirements for monitoring purposes.

Section 58.2. Failure of Negotiation. In case of failure of negotiation, the Implementing Agency shall reject the proposal in writing within seven (7) calendar days from the lapse of the negotiation period or the declaration of the failure of negotiations. Thereafter, the Implementing Agency may accept a new Unsolicited Proposal, if there be any, or bid out the project as a Solicited Project.

If the Implementing  Agency fails to act during the  negotiation  period,  such shall be deemed a failure of negotiation.

The Implementing Agency shall inform the PPP Center of such failure of negotiation, for monitoring purposes.

(a) Setting a pre-determined rate of return based on prevailing market conditions, risks to be assumed by the Private Partner, and duration of the PPP Project;

(b) Sharing  by  the  Private  Partner  with  the government,  of revenues,  net revenues, earnings before interest and taxes, net income, or the like if there is an upside;

(c) Implementing a graduated share in cases where government already has a share in the project revenues, net revenues, earnings before interests and taxes, net income, or the like even without upside;

(d) Setting a period for monitoring the returns;

(e) Setting a period for remitting the share of the government in the upside;

(f)  Reduction in the Tariff on the users, if the pre-determined rate is exceeded.

(a) It is found that the facts disclosed are incomplete, incorrect, misleading, fraudulent, untrue, inaccurate, or different from what was presented;

(b) There is a non-compliance or violation of the Code and this IRR; or

(c) There is a change in the composition of the Original Proponent that will affect its legal, technical, and/or financial capability to successfully carry out the PPP Project, or there is a change in control that will affect its majority ownership and/or beneficial ownership. For avoidance of doubt, majority ownership or control is presumed when the ownership and/or control is more than fifty percent (50%) of the Original Proponent's outstanding shares: Provided, That in the case of JVs, majority ownership or control is presumed when such is more than half of its share in the JV.

(a)  preparation and issuance of the tender documents;

(b)  publication  of  the  Invitation  to  Qualify/Pre-qualify  and  Bid I for  Comparative Proposals;

(c)  assessment of qualification/pre-qualification of prospective bidders/challengers;

(d)  conduct  of pre-bid  conferences  and  issuance  of  bid  bulletins  and  supplemental notices;

(e)  interpretation of the rules regarding the bidding;

(f)  conduct of bidding;

(g)  evaluation of bids;

(h)  resolution of protests in accordance with Sections 82 and 83 of this IRR; and

(i) recommendation  for the acceptance  of the bid and/or  for the award  of the PPP Contract.

Section 61.1. Composition of the PBAC of National Implementing Agencies. The Head of the Implementing  Agency shall determine the appropriate  composition of the PBAC of the National Implementing  Agency: Provided, That it shall, at the minimum, include the following voting members:

(a) Chairperson -At least a third ranking official of the Implementing Agency;

(b) Secretary- A legal officer of the Implementing Agency;

(c) An officer of the Implementing Agency knowledgeable in finance;

(d) An officer of the Implementing Agency knowledgeable in procurement; and

(e) An  officer  of  the  Implementing  Agency  knowledgeable  in  the  management/operation and in the technical aspects or requirements of the PPP Project.

Except for the Chairperson, who shall in any case be a holder of a plantilla position, the Implementing Agency may engage external consultants/entities for the abovementioned minimum  voting members: Provided, That such external consultants/entities  shall be under the supervision of the Chairperson, and that such engagement shall be duly documented and shall be in accordance with the required expertise of the minimum voting members as set forth in this section. The Implementing Agency may also include other members to the PBAC through an issuance of a department or special order.

For  purposes  of this  section,  the  term "plantilla"  shall  refer  to  employees'  positions included in the Personal Services Itemization approved by the DBM.

A quorum of the PBAC shall be composed of a simple majority of all voting members. The Chairperson may vote and shall be counted as part of the simple majority.

The PBAC may organize a technical working group (TWG) per project to assist in the pre­ bidding and bidding process. The Implementing Agency may also constitute more than one PBAC, if the Head of Implementing Agency deems it necessary.

Section 61.2. Non-voting Members and Observers of the PBAC of National Implementing Agencies. The PBAC shall invite the following in its proceedings:

(a) Non-voting members:

(i) A representative from the Implementing Agency's statutory counsel (OSG, OGCC, or as designated by the DOJ);

(ii) A representative from the Philippine Competition Commission (PCC);

(iii) A representative from the PPP Center, if PPP Center is not the procuring entity;

(iv) A representative from the Regulatory Body concerned duly authorized by its Head, who is knowledgeable with the PPP Project and is to be invited by the Implementing Agency on a project-to-project basis; and

(v) A representative from either the facility users, if applicable, or a duly recognized accounting association and/or consumer group.

(b) Observers:

(i) A representative from COA; and

(ii) A representative from a SEC-registered association related to the PPP Project.

Section 61.3. Composition of the PBAC of LGUs and LUCs. The Head of the Implementing Agency shall determine the appropriate composition of the PBAC of the Local Implementing Agency: Provided, That it shall, at the minimum, include the following voting members:

(a) Chairperson- the Administrator or at least a third ranking permanent official of the local Implementing Agency;

(b) Treasurer or Accountant of the Implementing Agency;

(c) Planning and Development Coordinator or Engineer of the Implementing Agency; (d) Legal officer of the LGU, as applicable, or of the LUC; and

(e) A representative from and selected by the local Sanggunian or by the LUC Board designated through a resolution.

In case the LGU does not have a legal officer, the LGU shall seek legal advice from either an external legal advisor or the legal officer of the next higher level of LGU, as applicable, to assist the PBAC.

Except for the Chairperson, who shall, in case of a third ranking permanent official, be a holder of a plantilla position, the Implementing Agency may engage external consultants/entities for the abovementioned minimum voting members: Provided, That such external consultants/entities shall be under the supervision of the Chairperson, and that such engagement shall be duly documented and shall be in accordance with the required expertise of the minimum voting members as set forth in this section. The Implementing Agency may include other members to the PBAC through an executive order.

For purposes of this section, the term "plantilla" shall refer to employees' positions included in the Personal Services Itemization approved by the DBM.

A quorum of the PBAC shall be composed of a simple majority of all voting members. The Chairperson may vote and shall be counted as part of the simple majority.

The PBAC may organize a TWG per project to assist in the pre-bidding and bidding process.  The Implementing Agency may also constitute more than one PBAC, if the Head of Implementing Agency deems it necessary.

Section 61.4. Non-voting Members and Observers of the PBAC of Local Implementing Agencies. The PBAC shall invite the following in its proceedings:

(a) Non-voting members:

(i) Local Economic Development and Investment Promotion (LEDIP) officer which shall serve as the Secretariat of the PBAC;

(ii) A representative from the PPP Center, if PPP Center is not the procuring entity;

(iii) Two (2) representatives from and chosen by the accredited CSOs, POs, and NGOs who are members of the local development council; and

(iv)  A representative from the Regulatory Body concerned  duly authorized by its Head, who is knowledgeable with the PPP Project and who is to be invited by the LGU or Board on a project-to-project basis.

(b) Observers:

(i) A representative from COA;

(ii)  A representative from the Department of the Interior and Local Government (DILG) Regional Office or Field Unit;

(iii)  A representative from the NEDA Regional Office, if applicable; and

(iv)  A representative from a SEC-registered association related to the PPP Project.

(a)  minutes of BAC meetings;

(b)  abstract of bids;

(c)  post-qualification summary report; and

(d)  opened proposals.

(a) date and place where the tender documents can be obtained;

(b) objective and Scope of the PPP Project;

(c) contract duration;

(d) period for bidding/comparative challenge; and

(e) participation fees and manner of payment, pursuant to Section 69 of this IRR; Provided, That  the  public  shall  be  given  access  to  published tender  documents prior  to  the payment  of  participation  fees;  Provided, further, That  the  PBAC  shall  have  the discretion on whether to include the draft PPP Contract  in the tender documents to be published; Provided, finally, That prospective bidders/challengers, prior to submission of their qualification/pre-qualification documents and/or  bids,  shall be required  to pay the corresponding participation fees; and

(f)  deadline for submission of qualification/pre-qualification documents, as applicable.

(a)  Instructions to Bidders/Challengers;

(b)  Draft PPP Contract,  as approved in accordance with Section 80 of this IRR, reflecting the PTCs approved  by the appropriate Approving  Body;

(c) "Bid Form" reflecting  the required  information to properly  evaluate the bid proposal;

(d)  Forms  of bid and performance securities;

(e)  Requirements  and  timelines/milestones  of  agencies  concerned  in  granting  of Administrative or Local Franchise,  if applicable; and

(f)  Other documents as may be deemed  necessary  by the PBAC.

(a) General  description and objectives  of the PPP Project,  including  a statement  that the PPP Project  shall be implemented under the Code and this IRR;

(b) Contractual arrangement under which the PPP Project shall be undertaken;

(c)  Bid parameters and documents comprising the bid;

(d) Bid submission procedures and requirements, which shall include  information on the manner  of bid submission, the number of copies of the bids to be submitted,  where the bids are to be submitted,  the deadline  for the submission of bids, permissible mode of transmission of bid proposals, etc.;

(e) Financial  Proposal  of the Original Proponent, for Instructions to Challengers;

(f)  Details of access to the physical and/or VDR and a template confidentiality agreement with prospective bidders/challengers in relation to the access to the physical data room and/or VDR;

(g) Participation fees in accordance with Section 69 of this IRR and manner of payment;

(h) Amount and form of the bid security, its validity period, and the grounds for its forfeiture;

(i)  Project Milestones;

(j)  Minimum  performance  standards  and  specifications  for  design,  construction, operation, and/or maintenance for the project prescribed by the Implementing Agency;

(k) Method, parameters, and criteria for the evaluation of the proposals;

(l)  Minimum amount of equity of the Private Partner;

(m) Requirements of the appropriate Regulatory Bodies, as may be pertinent or applicable to the PPP Project;

(n) Nationality and ownership requirements as required by law;

(o) Grounds for revocation of award; and

(p) Lock-in  or  holding  conditions  during  which  the  Private  Partner  cannot  sell  their ownership, rights, or interests in the PPP Project, if applicable.

Section 71.1. Preparation and Application for Qualification/Pre-Qualification. Any individual, partnership, corporation, or firm, whether local or foreign, including consortia of local, foreign, or both local and foreign firms, or cooperatives may apply for qualification/pre-qualification  for PPP Projects implemented under the Code and this IRR, subject to the limits set herein, and applicable laws, rules, and regulations.

The Implementing  Agency  concerned  shall allow prospective  bidders/challengers  at least fifteen (15) calendar days, in the case of single-stage bidding process, from the last date of publication of the Invitation to Qualify/Pre-qualify  and Bid to prepare their respective qualification/pre-qualification documents.

Section 71.2. Rules on Qualifying/Pre-Qualifying Prospective Bidders/Challengers. At the date, time, and place stipulated in the Invitation to Pre­ Qualify and Bid or Instruction to Bidders/Challengers, as may be applicable, which shall be within ten (10) calendar days after the deadline set for the submission of qualification/pre-qualification documents, the PBAC shall open the documents and ascertain whether the same is complete  in terms  of the information required  under Section 72 of this IRR. Such information shall be recorded at the time, including the names and addresses of required witnesses.

All  prospective  bidders/challengers  shall  be  invited  to  the  opening  of  the qualification/pre-qualification documents, and prospective bidders/challengers present at the opening shall sign a register. The absence of any invited prospective bidder/challenger during the opening shall not nullify the opening proceedings.

In case the documents cannot be opened as scheduled due to justifiable reasons, the PBAC shall take custody of the submitted documents and reschedule the opening on the next working day or at the soonest possible time through the issuance of a notice of postponement to be posted on the website of the Implementing Agency and the PPP Center.

The PBAC shall check the submitted qualification/pre-qualification  documents of each prospective  bidder/challenger  against  the  rules  set  forth  in  the  Instruction  to Bidders/challengers. Accordingly, the PBAC shall duly inform the qualified/pre-qualified prospective bidders/challengers whether they are qualified/pre-qualified or disqualified, and for the latter, the reasons for disqualification, within twenty (20) calendar days or such longer period as may be allowed but, in any case, not longer than thirty (30) calendar days after the opening of bids/comparative proposals.

In the course of evaluating the qualification/pre-qualification documents, the PBAC may seek  clarifications  and  make  inquiries  with  the  prospective  bidder/challenger,  any person, government authority, client organization, consortium member, officer, director, employee or other agent of any bidder, consortium member, or affiliate of any of these entities for the purpose of clarifying any matter included in the prospective bidder's/challenger's submission.

The PBAC shall make all requests for clarification in writing. Clarifications shall be limited to providing explanations and/or supporting documentation for information included as part of the qualification/pre-qualification documents and shall not include the submission of additional elements and new requirements, nor modification of the submitted documents in any way. Any clarification by the bidder/challenger or third-parties that is not in response to the request by the PBAC shall not be considered.

Disqualified prospective bidders/challengers shall be similarly given notice of such disqualification, stating therein the ground for disqualification within the same period provided under this section. Those disqualified may appeal the disqualification in accordance with the protest mechanism under this IRR

In the case of Solicited Projects, any substitution in the composition of the qualified Private Proponent shall be allowed prior to bid submission: Provided, That the substitute has equal or better qualifications. In the case of Unsolicited Proposals, any change in the composition of the Original Proponent that will affect its majority ownership shall be strictly prohibited.

Only qualified/pre-qualified prospective bidders/challengers shall be allowed to participate in the opening of technical and financial proposals.

Section 71.3. Unopened Technical and Financial Proposals of Disqualified Bidders/Challengers. The technical and financial proposals of the disqualified bidders/challengers shall be returned unopened upon the lapse of the period to file a motion for reconsideration of such disqualification or the final resolution of the protest regarding such disqualification, whichever is applicable

Section 72.1. Legal Requirements.

(a)  For PPP Projects where there is a nationality requirement, and where the Private Partner and Facility Operator are one and the same entity, the prospective Private Partner must be:

(i) a Filipino, or

(ii)  if a corporation, must be duly registered with the SEC and owned up to at least sixty percent (60°/o) by Filipinos, or

(iii)  if a consortium of local, foreign, or local and foreign firms, Filipinos must have at least sixty percent (60°/o) interest in said consortium, or

(iv)  if a cooperative, must be duly registered with the Cooperative Development Authority (CDA).

(b)  For PPP Projects where there is a nationality requirement  but where the Private Partner and Facility Operator may be two separate and independent entities, the Facility Operator must be:

(i) a Filipino, or

(ii)  if a corporation, must be duly registered with the SEC and owned up to at least sixty percent (60°/o) by Filipinos, or

(iii)  if a cooperative, must be duly registered with the CDA.

(c)  For PPP Projects where there is no nationality requirement for its operation, the prospective  Private  Partner  or the Facility Operator  may  be Filipino  or foreign­ owned, subject to applicable laws, rules, and regulations.

For purposes of determining compliance with the required constitutional or statutory requirement, the required Filipino ownership  shall be determined in accordance  with SEC Memorandum Circular No. 8, s. 2013, as may be amended or supplemented from time to time .

In case the prospective Private Partner is a consortium, the members or participants thereof  shall  be  disclosed  during  the  qualification/pre-qualification  stage  and  shall undergo  qualification/pre-qualification.  Further,  the  members  or  participants  thereof shall execute an undertaking in favor of the Implementing Agency that if awarded the PPP Contract, they shall bind themselves to be jointly and severally liable for the obligations of the Private Partner under the PPP Contract.

However, if members of the consortium organize themselves as a corporation registered under Philippine laws, such corporation shall execute such an undertaking binding itself to the rights and obligations of the Private Partner under the PPP Contract, which shall substitute or be in lieu of the undertaking submitted by the members or participants of the consortium.

For purposes of qualification/pre-qualification, the Contractor proposed to be engaged by the prospective Private Partner to undertake the Construction of the PPP Project must be duly licensed by the Philippine Contractors Accreditation Board (PCAB) in the case of a Filipino Contractor, or by an equivalent accreditation institution in the Contractor's country of origin in the case of a foreign Contractor. Once the Private Proponent is awarded the PPP Project, such foreign Contractor must secure a license from PCAB.

Prospective Private Partners may be required to submit to the Implementing Agency a certification under oath indicating that the prospective Private Partner: (a) is not included in blacklists issued by any government agency, (b) has not been found by final judgment to be liable for violating the Anti-Money Laundering Act or for violating statutes that carry the penalty of disqualification from participating in tenders for government contract, (c) has no pending case filed against it by the government or by it against the government, or, should there be any, that such cases shall not impact the capability of the prospective Private Partner to carry out its obligations under the PPP Project. The prospective Private Partner shall be required to submit full disclosure of its pending cases, whether by it against the government or filed against it by the government. Any misrepresentation in the certification under oath shall be a ground to disqualify the prospective Private Partner.

For avoidance of doubt, pending cases shall include criminal, civil, administrative, and arbitration proceedings.

Section 72.2. Experience or Track Record. The prospective Private Partner must possess adequate experience in terms of the following:

(a) Firm Experience.

By itself or through the member-firms in case of a consortium, or through a Contractor/s or nominated affiliates, proposed Facility Operators and/or entities bound by a technical services agreement, collectively referred to as Nominated Entities, which the prospective Private Partner may engage for the project, the prospective Private Partner, its Contractors, and/or Nominated Entities, must have successfully undertaken a project/s similar or related to the subject Infrastructure or Development Project and Service to be bid. The individual firms, their Contractors, and/or Nominated Entities may individually specialize on any or several phases of the project. A consortium shall be evaluated based on the individual or collective experience of the member-firms of the consortium and of the Contractors and/or Nominated Entities that it has engaged for the project, even if the Contractor and/or Nominated Entity is not a member of the consortium. The experience of the Contractors and/or Nominated Entities which the prospective Private Partner will engage for the project shall be evaluated if it is necessary for the determination of the capacity of the consortium to undertake the project. In such case, the Contractors and/or Nominated Entities must have successfully undertaken a project similar or related to the project to be bid. Such Contractor, and/or nominated entities if such nominated entities are eventually engaged for the PPP Project, shall be subject to a lock-in conditions pursuant to the PPP contract.

In the bidding documents for each project, the Implementing Agency shall specify the required minimum work experience - in terms of scope and costs - of projects similar or related to the subject project that have been successfully undertaken by the prospective Private Partner or its nominated entities. The prospective Private Partner must submit documented proof of such work experience, including certificates of satisfactory accomplishments from its concerned clients.

For purposes of the above, the consortia shall submit as part of their qualification/pre­ qualification  statement  a  business  plan  which  shall,  among  others,  identify  their members, the equity interest/contribution of each member to the consortium, their prospective Contractors and/or nominated entities, if the experience of their Contractors and/or nominated entities are necessary for the determination of the capacity of the consortium to undertake the project, and the description of the respective roles said members  and  Contractors  and/or  nominated  entities,  if  necessary,  shall  play  or undertake in the project, including as to which members are the prospective Facility Operators, if applicable. If undecided on a specific Contractor and/or nominated entities, the prospective Private Partner may submit a short list of Contractors and/or nominated entities from among which it will select from. Shortlisted Contractors and/or nominated entities are required to submit a statement indicating willingness to participate in the project and capacity to undertake the requirements of the project.

(b) Key Personnel Experience

The key personnel of the prospective Private Partner and/or its Contractors and/or nominated entities must have sufficient experience in the relevant aspect of schemes similar or related to the subject project, as specified by the Implementing Agency. Any substitution in the key personnel of the qualified/pre-qualified Private Proponent shall be allowed prior to bid submission, in accordance with the Instructions to Bidders: Provided, That the substitute has equal or better qualification/pre-qualifications.

Section 72.3. Financial Capability. The  prospective  Private  Partner  must  have adequate capability to sustain the financing requirements for the detailed engineering design, Construction, and/or operations and maintenance phases of the PPP Project, as the case may be.

The Implementing Agency shall determine on a project-to-project basis, and before qualification/pre-qualification, the minimum amount of equity needed.

For purposes of qualification/pre-qualification, this capability shall be measured in terms of proof of the ability of the prospective Private Partner and/or the consortium to provide:

(a) Equity- a minimum amount of equity to the project measured in terms of the latest net worth of the company as of the nearest date to the deadline for submission of qualification/pre-qualification  documents, or in the case of a consortium, the net worth of the lead member or the combined net worth of members as of the nearest date to the deadline for submission of qualification/pre-qualification documents;

(b) Debt- The prospective Private Partner shall demonstrate its capability to finance the PPP Project with debt by submitting a current letter testimonial from a financial institution attesting that:

(i)  The prospective Private Partner or members of the consortium are banking with them; and

(ii)  The prospective Private Partner and/or members of the consortium are in good financial standing and/or qualified to obtain debt financing from such financial institution to finance the PPP Project equivalent to the value of the debt requirement in the proposal.

The testimonial must come from an established financial institution that (1) is authorized by SSP to transact in the Philippines, or (2) has an investment grade foreign currency credit rating from a reputable agency which has an outstanding rating on the Republic of the Philippines.

The ICC, in the case of National PPP Projects, and the PPP Governing Board, in the case of Local PPP Projects, may prescribe and revise detailed guidelines on the methodology to establish the legal, technical, and financial qualification/pre-qualifications of the Private Proponents.

Section 73.1. Technical Proposals. The technical proposal shall contain the following, as may be deemed necessary by the PBAC:

(a) Compliance statements with regard to the technical parameters as stated in the bid/tender documents;

(b) Operational feasibility of the PPP Project, which shall indicate the organization, methods, and procedures for the operation and maintenance of the PPP Project under bidding;

(c) Technical  soundness/preliminary  engineering  design,  including  the  proposed project timeline;

(d) Preliminary environmental assessment, which shall indicate the probable adverse effects of the PPP Project on the environment and the corresponding  mitigating measures to be adopted and showing how it is integrated into the preliminary engineering design;

(e) Bid security, which may be in cash, certified check, manager's check, letter of credit, or bank draft/guarantee issued by a reputable local/foreign bank, or a surety bond callable on demand issued by the GSIS or an entity duly registered and recognized by the Office of the Insurance Commission acceptable to the Implementing Agency, or any combination thereof payable to the Implementing Agency concerned based on the total Project Cost in accordance with the following schedule:
 

Project Cost	Required Bid Security
Less than Php5 billion	2.0% of the Project Cost
Php 5 billion to less than Php 10 billion	Php 100 million + 1.5% of the Project Cost excess over the Php 5 billion
Php 10 billion and above	Php 175 million + 1.0% of the Project Cost excess over Php 10 billion

The Implementing Agency shall determine whether the bid security shall be issued by a local bank, an international bank, or both. In case the bid security is issued by an international bank, said security must be confirmed and validated by its local branch in the Philippines or by a bank that is duly registered and authorized by the BSP.

The posting of the bid security is for the purpose of guaranteeing that the proposed contract awardee shall enter into contract with the Implementing Agency within the time prescribed therefore.

Bids and bid securities shall be valid for a period to be prescribed by the Implementing Agency concerned in the tender documents, which shall in no case be beyond one hundred and eighty (180)  calendar days from the date of opening of bids. The actual amount of bid security to be posted by bidders will be fixed by the Implementing Agency concerned prior to bidding. Said actual amount shall not be less than the amount prescribed in the above schedule.

The Implementing Agency may also require other documents to support the bidder's technical proposal: Provided, That such requirements shall be advised in a bid bulletin issued prior to the deadline for submission of bids.

Section 73.2. Criteria in the Evaluation of Technical Proposals. The evaluation of the technical proposal shall involve the assessment of the technical, operational, and environmental viability of the proposal vis-a-vis the prescribed requirements and criteria/minimum standards and basic parameters prescribed in the bidding documents. Only those bids that have been determined to have passed the evaluation of qualification/pre-qualification requirements, pursuant to the bidding rules under this IRR, shall be qualified and considered for the evaluation of the technical proposal.

The  Implementing  Agency  shall  evaluate  the  technical  proposals  of  the bidder/challenger in accordance with the following criteria:

(a) Technical soundness- The basic engineering design of the project should conform to the minimum performance standards and specifications set by the Implementin Agency as prescribed in the bidding documents. The engineering surveys, plans and estimates should be undertaken within +/- 20%> of the final quantities. The Construction methods and schedules should also be presented and shown to be feasible or "doable" and shall conform to the minimum performance standards and specifications set by the Implementing Agency.

(b) Operational feasibility- The proposed organization, methods, and procedures for operating and maintaining the completed facility shall be well defined, should conform to the prescribed minimum performance standards and specifications, and should be shown to be workable. Where feasible, it should provide for the transfer of technology used in every phase of the project.

(c) Environmental  and  social  standards  and  impact  mitigation  measures  - The proposed design and the technology of the project to be used must be in accordance with the environmental standards set forth by the Department of Environment and Natural Resources (DENR), and social standards provided in applicable laws, rules and regulations, as indicated in the bid documents. Any risk of adverse effects on the environment and on communities as a consequence of the project as proposed by the prospective Private Proponent must be properly identified, including the corresponding corrective/mitigating measures to be adopted.

The PBAC shall have the authority to decide on the best mechanism in assessing the technical proposals, such as, but not limited to a scoring system. The PBAC shall check the submitted technical proposal of each bidder against the rules set forth in the Instruction to Bidders.

The PBAC shall complete the evaluation of the technical proposal within thirty (30) calendar days from the date the bids are opened.

Section 73.3. Financial Proposals. The financial proposal shall contain the following, as the case may be:

(a)  Compliance statements with regard to the financial parameters stated in the tender documents;

(b)  Proposed project cost, operations and maintenance cost, and all other related costs,  including  cost  of  environment  and  social  impact/risk  management measures;

(c)  Project financing scheme, which may include the amount of equity to be infused, debt to be obtained for the PPP Project, and sources of financing; 

(d)  Financial proposal corresponding to the bid parameters set by the Implementing Agency;

(e)  Financing plan and third-party valuation of the bidder's/challenger's contribution, in the case of JV arrangements; and

(f) Other documents to support the bidder's/challenger's financial proposal, as may be required by the Implementing Agency.

Section 73.4. Criteria in the Evaluation of Financial Proposals. The evaluation of the financial  proposal  shall  involve  the  assessment  and  comparison of  the  financial proposals of the bidders/challengers, based on the following parameters, in addition to the parameters stated in Section 73.3 of this IRR:

(a)  Consistency  and responsiveness  with the requirements  of the Concession Agreement;

(b) Consistency with the submitted technical proposal. Consistency can be determined through practices such as, but not limited to, benchmarking and third-party expert opinion; and

(c)  Reasonableness  of assumptions. This may be determined through practices such as, but not limited to, benchmarking and third-party expert opinion.

In case of two-stage bidding process, the stage of evaluation of the financial proposal shall be completed by the PBAC of the Implementing Agency within fifteen (15) calendar days from the date the first stage evaluation of the technical proposal shall have been completed. The PBAC shall have the authority to decide on the best mechanism in assessing  the  financial  proposals.  The  PBAC  shall  check  the  submitted  financial proposal of each bidder against the rules set forth in the Instruction to Bidders/Challengers.

Section 80.1. Release  of draft  PPP Contract to reviewing bodies, for initial comments. The draft PPP Contract to be released to bidders/comparative proponents shall also be sent to the following reviewing bodies for initial comments in relation with the jurisdiction provided by law, within seven (7) calendar days from the release of the complete set of tender documents to bidders/comparative proponents:

(a) For National PPP Projects:

(i)  PPP Center, for compliance with the approved PTCs;

(ii) Statutory counsel/s, for compliance with all other applicable laws, rules, and regulations; and

(iii) DOF, for national Government Undertakings or Availability Payments under the draft PPP Contract.

(b) For Local PPP Projects:

(i)  Statutory counsel/s, for compliance with all other applicable laws, rules, and regulations; and

(ii)  DOF, if there is a national Government Undertaking or Availability Payments under the draft PPP Contract.

The statutory counsel to review the draft PPP Contract shall be the one as applicable to the  Implementing  Agency,  which  may  be  the  OSG,  OGCC,  DOJ,  or  as  may  be determined by the DOJ.

Reviewing bodies shall have fifteen (15) calendar days from receipt of the draft PPP Contract to review and provide their initial comments.

Section 80.2. Incorporation of initial comments of the reviewing bodies into the draft PPP Contract and release of draft PPP Contract to reviewing bodies for final review. Prior to the final review and approval of the Head of Implementing Agencies, the draft PPP Contract, revised to incorporate initial comments of the reviewing bodies, shall be released to the reviewing bodies for final review not later than sixty (60) calendar days before the date of bid submission/comparative challenge.

Section 80.3. Final review  of draft contract by reviewing bodies. Reviewing bodies shall have fifteen (15) calendar days from receipt of the draft PPP Contract, as revised, to complete the final review.

The final letter of the concerned reviewing body shall be considered as their clearance of the draft PPP Contract, for consideration of the Head of the Implementing Agency. The unfavorable comments or clearance made by the appropriate reviewing body shall not be deemed as a prima facie evidence or claim, sufficient to sustain a judgment in favor of the issue it supports.

Any Government Undertaking and Availability Payment commitments to be sourced and funded under GAA stated in the draft PPP contract not approved by the Approving Body and not cleared by the DOF shall not be binding against the government.

Section 80.4. Approval of the Head of Implementing Agency  of the PPP Contract. The Head of Implementing Agency shall have ten (10) calendar days from receipt of the final comments to finalize and approve the draft PPP Contract and to release the same to bidders/challengers. The Head of the Implementing Agency shall ensure that the draft PPP Contract shall be based on the PTCs set forth by the Approving Body pursuant to Title IV of this IRR.

The release of the PPP Contract to the bidders/challengers shall be thirty (30) calendar days before the date of comparative challenge. The PBAC shall not proceed with the bid submission date unless the PPP Contract is approved by the Head of the Implementing Agency and cleared in accordance with this section.

For purposes of Section 8 of the Code and this section, an executed PPP Contract shall be null and void if it contains provision/s which are contrary with the approved PTCs and are grossly disadvantageous to the government, upon the determination/finding of a court of competent jurisdiction, without prejudice to the provisions under Section 32 of the Code.

(a) The tender documents or procurement process failed to comply with the requirements of the Code, this IRR, or other applicable laws, rules, and regulations;

(b) The selection process of the Private Partner violated the requirements of the PPP Code, this IRR, or other relevant laws so as to adversely affect fair and transparent competition between bidders/challengers; and/or

(c) There is evidence  of corruption, bribery, receipt, brokerage, or similar behavior,  bid rigging or collusion, fraud or abuse of position or power in relation to the procurement process,  to the extent that such acts may have actually affected the results of the tender.

Section 82.1. Procedure in Filing a Motion for Reconsideration to the PBAC. Within five (5) calendar days upon receipt of the written notice of the PBAC Resolution, the aggrieved Private Proponent may file a Motion for Reconsideration of such PBAC Resolution with the PBAC, or its equivalent. The PBAC shall render a decision within five (5) calendar days upon receipt of the Motion for Reconsideration.

No party shall be allowed a second motion for reconsideration  for the decision of the PBAC.

Section 82.2. Procedure in Filing an Appeal to the Head of the Implementing Agency. Upon receipt of the decision on their Motion for Reconsideration, the aggrieved Private Proponent may appeal to the Head of the Implementing Agency and pay an appeal fee within five (5) calendar days upon receipt of the decision by the PBAC_ The Head of the Implementing Agency shall act on the appeal and render its decision within ten (10) calendar days upon receipt of the appeal and payment of the appeal fee.

Section 82.3. Procedure in Filing an Appeal to the Department Secretary. If the Head of the Implementing  Agency in the immediately preceding Section is not a Department Secretary, the decision of the Head of the Implementing Agency may be further appealed by the aggrieved Private Proponent to the Secretary of the Department to which the Implementing  Agency is attached, and pay an appeal fee within five (5) calendar days upon receipt of the decision by the Head of the Implementing Agency. The Department Secretary shall act on the appeal and render a decision within fifteen (15) calendar days upon receipt of the appeal and payment of the appeal fee, otherwsie it shall be deemed denied.

The amount of appeal fees for Sections 82.2 and 82.3 shall be as prescribed by the PBAC in accordance with the principles of fairness and integrity. Such amount shall not discourage potential  appellants  from  challenging  the  decision  of  the  PBAC  or  the  Head  of  the Implementing Agency, as may be applicable; and at the same time, dissuade frivolous bidders/challengers from filing appeals which can impede the procurement process for PPP Projects.

All appeal fees set forth herein, from appeals that are found meritorious, are reimbursable, subject to guidelines to be issued by the PPP Governing Board.

Unless otherwise provided in the PPP Code, in no case shall a motion for reconsideration or an appeal from any decision by the PBAC, the Head of the Implementing Agency, or the Department Secretary, stay or delay the bidding process. No award shall however be made until a decision on any pending appeal is rendered.

(a) The tender documents or procurement process failed to comply with the requirements of the Code, this IRR, or other applicable laws, rules, and regulations;

(b) The selection process of the Private Partner violated the requirements of the PPP Code, this IRR, or other relevant laws so as to adversely affect fair and transparent competition between bidders/challengers; and/or

(c) There is evidence of corruption, bribery, receipt, brokerage, or similar behavior, bid rigging or collusion, fraud or abuse of position or power in relation to the procurement process, to the extent that such acts may have actually affected the results of the tender.

Section 83.1. Procedure in Filing a Motion for Reconsideration to the PPP Bids and Awards Committee (PBAC). Within five (5) calendar days upon receipt of the written notice, the aggrieved Private Proponent may file a Motion for Reconsideration with the PBAC, or its equivalent. The PBAC shall render a decision within ten (10) calendar days upon receipt of the Motion for Reconsideration.

No party shall be allowed a second motion for reconsideration for the decision of the PBAC.

Section 83.2. Procedure in  Filing an Appeal  to  the  Local  Chief  Executive. Upon receipt  of  the  decision  on  their  Motion  for  Reconsideration,  the  aggrieved  Private Proponent may appeal to the Local Chief Executive, and pay an appeal fee within ten (10) calendar days upon receipt of the decision by the PBAC. The Local Chief Executive shall act on the appeal and render its decision within twenty (20) calendar days upon receipt of the appeal and payment of the appeal fee.

The amount of appeal fees for Section 83.2 shall be as prescribed by the PBAC in accordance with the principles of fairness and integrity. Such amount shall not discourage potential appellants  from  challenging  the decision  of the PBAC  or the  Head  of the Implementing Agency, as may be applicable; and at the same time, dissuade frivolous bidders from filing appeals which can impede the procurement process for PPP Projects. Appeal fees set forth herein, from appeals that are found meritorious, are reimbursable, subject to guidelines to be issued by the PPP Governing Board.

Unless otherwise provided in the PPP Code, in no case shall a motion for reconsideration or an appeal from any decision by the PBAC or the Local Chief Executive stay or delay the bidding process. No award shall however be made until a decision on any pending appeal is rendered.

(a) specific contractual arrangement, term, and scope of work;

(b) minimum performance standards and specification;

(c) KPIs,  targets,  and  procedures  for  measuring  and  reporting  results,  including dimensions of gender equality, disability and social inclusion (GEDSI);

(d) implementation milestones, including those for securing other approvals, period within which  Financial  Close  shall  be  achieved  by  the  Private  Partner,  and  the  project completion date;

(e) cost recovery scheme via proposed Tariff, as the case may be;

(f)  obligation of the Private Partner to disclose loan or financing documents, as required under this IRR;

(g) liquidated damages as contemplated under this IRR;

(h) performance security requirements, including their validity and top-up mechanism procedures, contemplated under this IRR;

(i)  minimum insurance coverage as may be required for the project, such as Contractors' all risk, motor vehicle, workforce's compensation, third party liability, force majeure, or comprehensive general liability insurance, as may be applicable;

(j)  acceptance tests and procedures;

(k) warranty period and procedures (after transfer) and warranty security;

(l)  lock-in conditions, as applicable;

(m) grounds for contract termination, including events of default, and effects of contract termination, including formula for Termination Payment, and manner and timeline of payment;

(n) conditions and procedures for lender step-in rights;

(o) conditions for acceptable permitted security interest;

(p) the manner and procedures for the resolution of corruption;

(q) wind-up and transfer measures pursuant to Section 22 of the Code; 

(r)  compliance with all other applicable laws, rules, and regulations;

(s) total cost of the project, project specifications and features;

(t)  gender, social, disability, and environment safeguards;

(u) provisions on the use of dispute avoidance and Alternative Dispute Resolution (ADR) mechanisms pursuant to RA No. 9285, or the "Alternative Dispute Resolution Act of 2004";

(v) ownership or retention of patents, technology and consultant reports; and

(w) monitoring, evaluation and reporting scheme/plan for all safeguard-related mandatory provisions of the PPP Contract.

(a)  If,  after  advertisement,  more  than  one  bidder  applied  for qualification/pre­qualification, but only one met the qualification/pre-qualification requirements;

(b)  If, after advertisement, only one bidder applied for and met the qualification/pre­ qualification requirements, provided such was allowed by the Head of the Implementing Agency, upon recommendation of the PBAC;

(c)  If, after qualification/pre-qualification of more than one bidder, only one submitted a bid; or

(d)  If, after qualification/pre-qualification, more than one bidder submitted bids but only one is found by the Implementing Agency to be complying.

(a) When the realized rate of return exceeds the prescribed RROR the Private Partner will deposit excess cash into the trust account in such amount as to cause the realized rate of return to equal RROR;

(b) When the realized rate of return falls below RROR, the Private Partner may draw from the trust account in such amount as to cause the realized rate of return to equal RROR or the total amount remaining in the trust account, whichever is lower: Provided, That at all times, the trust account is funded only by sources coming from provision.

(a)  If there are no bids received;

(b)  If no prospective bidder is eligible; 

(c)  If there are no complying bids; or

(d)  If there is failure to enter into contract as defined in Section 108 of this IRR.

(a) prescribed performance security;

(b) proof  of  commitment  of  the  required  equity  contribution,  as  specified  by  the Implementing Agency:

(i)  in cases where the winning Private Proponent is a corporation  - a treasurer's affidavit attesting to actual paid-up capital, subscription agreement between shareholders of the winning Private Proponent and the winning Private Proponent itself covering said equity contribution, or shareholders agreement between and amongst  two  (2)  or  more  shareholders  of  the  winning Private  Proponent undertaking to contribute or subscribe the required equity contribution; or

(ii) in the case of a consortium - an undertaking of the members thereof to infuse the required equity contribution to the consortiu

(c) proof of firm commitments from reputable financial institution to provide sufficient credit lines to cover the Project Cost to be shouldered by the winning Private Proponent;

(d) in case an SPC or a JVC has already been formed for purposes of undertaking the PPP Project, proof of registration in accordance with Philippine laws; and

(e) such other conditions imposed by the Implementing Agency.

(a) the SPC shall be wholly owned by the winning Private Proponent, subject to the nationality and ownership requirements under the Constitution and other applicable laws;

(b) in the case of a consortium, all members thereof shall present proof of contractual or other legally binding ties to or relationships with the SPC or JVC for the development and implementation of the PPP Project in accordance with their submitted business plan;

(c) in case of JVs involving the formation of a JVC, the JV Partners shall be further guided by the following parameters:

(i)  The formation of a JVC shall be in accordance with the legal mandate of the Implementing Agency and provisions of the Revised Corporation Code of the Philippines and other applicable laws, rules, and regulations. The Implementing Agency, shall, subject to the approval of the appropriate Approving Body, determine the minimum PTCs of the JV PPP Contract including veto rights in favor of the government. Formation of JV between the Implementing Agency and the Private Partner shall not change the nature or alter the mandate of the Implementing Agency entering into such JV. The Implementing Agency's governmental responsibility shall not be diminished and shall not be a reason to avoid compliance with and coverage of existing laws, rules, or regulations.

(ii)  The shares of the Implementing Agency and the Private Partner in the profits, losses, assets acquired and/or constructed, and any other interests derived from the JV shall be proportionate to their respective contributions.

(iii) The equity contribution, including contribution of assets, properties, and rights, and other allowable Government Undertakings, of the government in a JV PPP Contract shall in no case exceed fifty percent (50°/o) of the Project Cost, in the case of a contractual JV, or fifty percent (50%) of the outstanding capital stock of the JVC. All equity contributions of the government and the Private Partner shall be subject to fair valuation by a Third-party Appraiser pursuant to Title XII ofthis IRR.

(iv) The Implementing Agency shall be represented in the Board of the JVC. The composition of the Board shall be based on the JV partners' proportional contribution. The JV partners may agree for the Implementing Agency to have greater representation in the Board; and

(v) The Implementing Agency and the Private Sector Partner shall be entitled to receive dividends from the net profits proportionate to the equity contributions of each party: Provided, That the Implementing Agency and the Private Partner may agree to include mechanisms that would provide a higher return for the government entity than it is entitled to, based on the actual percentage of government contribution in the JV.

The government entity may also accept any other more favorable terms as may be agreed upon with the Private Partner in the JV PPP Contract. Should the contracting parties deem it necessary, dividends to be issued in favor of each party may be held in trust by the JVC for their exclusive benefit: Provided, That, the dividends to be issued to the Implementing Agency for the government may be used to offset against any of its payment obligations to the JV under the JV PPP Contract, including the eligible liabilities of the JV; Provided further, That such liabilities be limited to reasonable obligations incurred for the purpose of pursuing the objectives of the JV and that these be necessary expenses to the business and its operations; Provided finally, That any deduction charged to dividends of either JV Partner that is held in trust by the JVC must be properly accounted for and reported to the JV Partners concerned. The foregoing shall be without  prejudice  to  existing  laws,  rules,  regulations,  and  issuances  on the matter, including RA No. 7656.

(d) an accession undertaking is executed by the SPC or JVC and the winning Private Proponent in favor of the Implementing Agency, making the SPC or JVC principally liable for the performance of the winning Private Proponent's obligations under the Notice of Award and/or the contract.

(a) There is power  over more than one half (1/2) of the voting rights by virtue  of an agreement with investors;

(b) There is power to direct or govern the financial and operating policies of the entity under a statute or agreement;

(c) There is power to appoint or remove the majority of the members of the board of directors or equivalent governing body;

(d) There is power to cast the majority votes at meetings of the board of directors or equivalent governing body;

(e) There exists ownership over or the right to use all or a significant part of the assets of the entity;

(f)  There exist rights or contracts which confer decisive influence on the decisions of the entity;

(g) Other factors which may be considered by the Approving Body such as but not limited to the concept of Beneficial Owner under the relevant rules and regulations of the SEC.

(a) an agreed project execution plan, which covers the roles and responsibilities of the parties and other stakeholders during project implementation, the monitoring of project milestones and KPis, and the resources required to execute the project;

(b) the conflict mitigation plan referred to in Section 8 of this IRR, as applicable; and

(c) the risk mitigation plan approved by the Approving Body pursuant to Title IV of this IRR, or any updates thereto, which includes all risks assumed by the government under the PPP Contract, risks assumed by the Implementing Agency, risk mitigating measures, estimated costs to be incurred in addressing identified risks, target timeline to have each measure in place, and the appropriate action plan by the Implementing Agency to manage each type of risk.

(a) Physical - includes the monitoring of actual progress against scheduled milestones, compliance  with  the  minimum  performance,  standards,  and  specifications, achievement of KPis, project risks and issues encountered, and expected outputs and benefits;

(b) Financial- includes the monitoring of project spending and financial performance, and the  payment  of  Availability  Payments,  Government  Undertakings,  Contingent Liabilities from risks that have materialized, project loans, and other liabilities under the PPP Contract; and

(c) Project  safeguards  - includes  the  monitoring  of  compliance  and  performance  in accordance with gender equality, disability, social inclusivity, health and safety, and environmental policies, standards, and best practices.

(a) Cash, irrevocable letter of credit, or bank draft- a minimum of two percent (2%) of the total Project Cost;

(b) Bank Guarantee- a minimum of five percent (5%) of the total Project Cost.

(c) Surety Bond - a minimum of ten percent (10%) of the total Project Cost. The performance guarantee shall be valid up to acceptance by the Implementing Agency of the facility.

(a) an accumulation  of a significant number of breaches  over a stated period of time; and/or

(b) an accumulation of payment deductions from the performance security or of payment of liquidated damages above a certain threshold.

(a) an accumulation  of a significant number of breaches  over a stated period of time; and/or

(b) an accumulation of payment deductions from the performance security or of payment of liquidated damages above a certain threshold.

(a) The procedures in securing regulatory approvals of the initial Tariff, and adjustments thereof, for Solicited Projects and Unsolicited Proposals: Provided, That all regulatory approvals shall be made prior to the approval of a PPP Project and that during the implementation  period of the PPP Project, the Private Partner shall have the right to file the application for Tariff and adjustments thereof;

(b) Procedures for the publication of, hearing for, and decision and order on the proposed initial Tariff, and adjustments thereof;

(c) Factors  in  setting  and  adjusting  such  Tariff  which  may  include  a  parametric formula; and

(d) Appeal process for decisions of the Regulatory Bodies.

(a) VGF and other forms of Subsidy; 

(b) Payment of ROW-related costs; 

(c) Performance Undertaking;

(d) Exemptions from any tax, unless otherwise prohibited by this IRR or other applicable laws, rules, and regulations;

(e) Guarantee on Demand;

(f)  Guarantee on Loan Repayment;

(g) Guarantee on Private Sector Return;

(h) Government Equity;

(i)  Contribution of assets, properties, and/or rights;

(j)  Monetary payment of Contingent Liability through the PPP Risk Management Fund of the national government, in the case of Local PPP Projects; and

(k) Credit Enhancements.

(a) in case of Unsolicited Proposals  containing  Government  Undertakings in the form of payment  of ROW-related costs and/or contribution of assets, properties,  and/or rights, including  usufruct,  where  the  government  receives  appropriate  compensation, pursuant  to Section 10(c) of the Code;

(b) in case  of solicited  and  unsolicited  JV PPP  Contracts,  the  valuation  shall  cover  all equity contribution of the government, pursuant  to Section  11(b) of the Code. Private sector equity contribution in the form of assets, properties,  and/or rights shall also be subject to valuation prior to the submission of the project documents for the proposed unsolicited JV to the appropriate Approving  Body; and

(c)  in PPP Projects where the investment  recovery  scheme involves the grant of a portion or percentage of a reclaimed land, pursuant  to Section 18 of the Code.

(a) Change/s  in the agreed  schedule or parametric formula to calculate tariff and adjustments thereof, as stipulated in the PPP Contract, unless already regulated and publicly-disclosed in accordance with Title IX of this IRR;

(b) Decrease  in the Implementing  Agency's  revenue  or profit share derived from the project,  except  as  may  be  allowed  under  a  formula  approved  by  the  relevant Regulatory or Approving Body;

(c) Change/s in the approved scope of works, decrease in the performance standards, deferment  of  committed  service  levels,  or  change  in  the  contractual arrangement: Provided, That  if  the  proposed  variation  involves  a  change  in  the approved project scope, the Implementing Agency shall establish that the Private Partner and its contractors possess the capacity to implement the requested variation by assessing the qualifications of the same pursuant to Section 71 of this IRR, prior to submitting the proposed variation to the appropriate Approving Body;

(d) Extension in the contract term; or

(e) Any variation that will result in an increase in the financial liabilities of the government under the PPP Project.