(NAR) VOL. 29 NO. 1/ JANUARY - MARCH 18
1.1 Transparency in the conduct of Competitive Selection Process (CSP) through wide dissemination of bid opportunities and participation of all Generation Companies (Gen Cos);SECTION 2. COVERAGE
1.2 Competitiveness by extending equal opportunity to eligible and qualified
Gencos to participate in the CSP;
1.3 Least cost manner in ensuring that each distribution utility (DU) is able to meet the demand for its Captive Market at any given time;
1.4 Simple, streamlined and efficient procurement process applicable to the specific requirements of each DU in accordance with its Distribution Development Plan (DDP). These requirements shall specify the following technical, economic and other parameters: (1) baseload, mid-merit and/or peaking capacities; (ii) the amount of energy to be delivered; (ii) type of fuel or resource, whether conventional fossil fuel (such as oil, coal, or natural gas) or renewable energy resources (such as biomass, geothermal, solar, hydro, ocean and wind); (iv) choice of other emerging systems and technology:(v) environmental standards, (vi) timing and delivery of supply; and (vii) other considerations of the DU, as may be applicable; and
1.5 Accountability involved in the procurement process and implementation of the Power Supply Agreements (PSAs) awarded under the CSP.
2.2.1 Any generation project owned by the DU funded by grants or donations. The DU may be allowed to infuse internally generated funds; Provided, that the amount shared by the DU shall not exceed 30% of the total project cost; Provided further, that taxes to be paid by the DU shall not be included in the total project cost;2.3 The Certificate of Exemption shall be issued by the DOE within ten (10)
2.2.2 Negotiated procurement of emergency power supply; Provided, that the cooperation period of the corresponding PSA shall not exceed one (1) year; Provided further, that the rate shall not be higher than the latest ERC approved generation tariff for same or similar technology in the area;
2.2.3 Provision of power supply by any mandated Government Owned and Controlled Corporation (GOCC) for off-grid areas prior to, and until the entry of New Power Providers (NPP) in an area; and
2.2.4 Provision of power supply by the Power Sector Assets and Liabilities Management (PSALM) Corporation through bilateral contracts for the power produced from the undisposed generating assets and Independent Power Producer (IPP) contracts duly sanctioned by the “Electric Power Industry Reform Act of 2001” or EPIRA as deemed by the DUs, subject to a periodic review by the DOE.
4.2.1 Historical data on peak demand, supply contract, energy sales and energy purchase;4.3 Pursuant to the EPIRA and its implementing Rules and Regulation, the final annual ten-year DDP must be submitted to the DOE not later than 15th of March of each year and must be supported with a Board Resolution and/or notarized Secretary’s Certificate.
4.2.2 10-year monthly peak demand forecast; energy sales; existing
contracts (expiration);
4.2.3 Committed energy and demand for CSP;
4.2.4 Currently approved SAGR for Off-grid DUs to be passed-on to consumers;
4.2.5 Current supply and demand status of the DU; and
4.2.6 Indicative schedule for CSP taking into consideration the required construction period in the case of new generation plants.
5.1.1 The DU, through its Board of Directors (BOD), shall establish an independent TPBAC to spearhead and manage the CSP. The TPBAC shall comply with the policy and procedures in the conduct of CSP, as provided for in this policy. The TPBAC shall be accountable to its decision in the conduct of the CSP; Provided however, that the DU shall bear the expenses for any dispute or litigation arising from the CSP.
5.1.2 The DU, through its Board of Directors (BOD), shall designate five (5) members of the TPBAC where three (3) members will come from the DU and the two (2) members will come from the captive customers that are not directly or indirectly related/affiliated to the DU. As such, the TPBAC shall be composed of the following:5.1.2.1 One DU officer or employee knowledgeable in the technical operations of the DU;5.1.2.2 One DU officer or employee with knowledge and/or experience with any local or international competitive bidding procedures;5.1.2.3 One lawyer;5.1.2.4 One finance officer or accountant that has knowledge on electricity pricing; and5.1.2.5 One Technical person, or a person with knowledge and/or experience with any local or international competitive bidding procedures.
One of the last three (3) representatives shall represent the DU.
For all DUs, the selection process of the representatives of the captive customers to the TPBAC shall be submitted to the DOE for approval.5.1.3 The BOD of the DU shall only serve as an observer and not as a member of the TPBAC.
For ECs, member-Consumers who are not directly or indirectly employed by the EC shall qualify as members of the TPBAC.
5.2.1 The BOD of the DU shall designate the TPBAC TWG and TPBAC Secretariat, to be headed by a regular or permanent employee of the DU, preferably an officer, to assist the TPBAC in the performance of its functions.5.3 Joint TPBAC of Aggregated DUs
5.2.2 The TPBAC TWG shall be composed of the technical, legal and financial personnel of the DU.
5.2.3 The TPBAC TWG shall assist the TPBAC in the technical components of the CSP, such as development of the PSPP, TOR, eligibility screening, evaluation of bids, and post-qualification.
5.2.4 The TPBAC Secretariat shall provide administrative support to the TPBAC for this purpose and serve as the keeper of all records and documents relating to all CSPs conducted by the DU.
5.2.5 The TPBAC Secretariat shall fully document each step of the CSP and prepare and keep a written minutes of all the TPBAC meetings and proceedings.
5.3.1 In the case of Aggregated DUs, a Joint TPBAC and its composition including its corresponding TPBAC TWG and TPBAC Secretariat shall be established through a Memorandum of Agreement (MOA). The Joint TPBAC shall have five (5) members, where three (3) members will come from any of the participating DUs and the two (2) members will come from the captive customers of any of the participating DUs that are not directly or indirectly related/affiliated to the DUs. As such, the Joint TPBAC shall be composed of the following:5.3.1.1 One DU officer or employee of any participating DU who is knowledgeable in the technical operations of DUs;One of the last three (3) representatives shall represent any of the participating DUs.
5.3.1.2 One DU officer or employee of any participating DU with knowledge and/or experience with any local or international competitive bidding procedures;
5.3.1.3 One lawyer;
5.3.1.4 One finance officer or accountant that has knowledge on electricity pricing; and
5.3.1.5 One Technical person, or a person with knowledge and/or experience with any local or international competitive bidding procedures.
For all DUs, the selection process of the captive customers’ representatives to the Joint TPBAC shall be submitted to the DOE for approval. For ECs, member-consumers who are not directly or indirectly employed by the EC shall qualify as members of the Joint TPBAC.
7.4.1 Pre-bid Conference;7.5 Observers shall be allowed access to the following documents upon their request: (a) minutes of TPBAC, Joint TPBAC or TPA meetings; (b) abstract of Bids; (c) post-qualification summary report; (d) video recording of CSP proceedings; (e) opened proposals; (f) Bid Documents and other related documents.
7.4.2 Pre-qualification, if any;
7.4.3 Submission and Opening of Bids;
7.4.4 Bid Evaluation;
7.4.5 Negotiations;
7.4.6 Post-qualification, if any;
7.4.7 Awarding; and
7.4.8 Contract Signing.
8.2.1 PSPP as incorporated in the current year DDP;8.3 The NEA shall review the submitted PSPP within ten (10) working days upon receipt prior to its submission to the DOE.
8.2.2 Distribution Impact Study (DIS)/ Load Flow Analysis conducted that serves as the basis of the TOR; and
8.2.3 Due diligence report on the existing generation plants.
The TWG of the TPBAC, Joint TPBAC or TPA shall prepare the Bid Documents, which shall be composed of the following:
8.4.1 The TOR based on the recent PSPP submission shall which, at the minimum, contains the following information:
8.4.1.1 Cooperation period with the Generation Company or the NPP;
8.4.1.2 Demand and Energy for CSP;
8.4.1.3 Preferred technology, if any, and justification for such preference;
8.4.1.4 Target Commercial Operation Date (COD), in the case of new generating capacities and the target date of delivery;
8.4.1.5 Replacement Power Requirement;
8.4.1.6 Enumeration of cost items to be passed-on to the captive customers;
8.4.1.7 Penalty provisions in cases of delay in construction and commercial operations for new generating capacities; and
8.4.1.8 Grounds for termination of the PSA during the cooperation period.
8.4.2 The Invitation to Bid shall, at the minimum, indicate the following:
8.4.2.1 Cooperation Period/Contract Year;
8.4.2.2 Demand and Energy for CSP;
8.4.2.3 Eligibility requirements;
8.4.2.4 Information Memorandum;
8.4.2.5 Instruction to Bidders; and
8.4.2.6 Schedule and Deadlines up to the Notice to Proceed
8.4.3 Corporate Profile of the bidders;
8.4.4 Technical Proposal’s requirements;
8.4.5 Financial Proposal’s requirements;
8.4.6 Method and Criteria for evaluation;
8.4.7 Bidding Procedure;
8.4.8 Awarding, Signing of Contract, and Notice of Implementation;
8.4.9 Acceptable Form of Bid and Performance Securities;
8.4.10 Proposed Timelines or Milestones;
8.4.11 Power Supply Agreement Template;
8.4.12 Notarized Statement attesting to the information submitted for the bid;
8.4.13 Protest Mechanism; and
8.4.14 Other documents required and mandated by any government agencies.
8.5 Publication and Posting
The TPBAC, Joint TPBAC or TPA shall cause the publication and posting of the Invitation to Bid for the procurement opportunity in accordance with this policy for the period specified therein.
8.5.1 The TPBAC, Joint TPBAC or TPA shall post the Invitation to bid in its website, if there is any, and in the DOE E-based portal and in the NEA website, in the case of ECs. The TPBAC, Joint TPBAC or TPA shall continuously update the DOE and NEA on the status thereof through their respective E-based portals.
The TPBAC, Joint TPBAC or TPA shall likewise ensure that all bid bulletins and related announcements shall be posted at the DOE E- based portal and NEA website, in the case of ECs.
In cases where the DUs encounter problems in the posting of the necessary pieces of information in the respective E-based portal, the
DUs shall inform the DOE and NEA for assistance in the required posting.
8.5.2 The TPBAC, Joint TPBAC or TPA shall also cause the publication of the Invitation to Bid in a newspaper of general circulation once weekly for two (2) consecutive weeks.
8.5.3 The TPBAC, Joint TPBAC or TPA may opt to, in addition to Section
8.5.2, published the invitation to bid in one (1) local newspaper of local circulation in the region, province, city or municipality indicating the CSP schedules, among other necessary information for the bidders, once weekly for two (2) consecutive weeks.
8.5.4 In addition to publication, the TPBAC, Joint TPBAC or TPA shall exert its best effort to disseminate its Invitation to Bid to all Gen Cos.
8.5.5 For transparency, all stages and updates on the CSP that coincides with its CSP schedule must be provided to the DOE and NEA in case of ECS, for posting on the DOE E-based portal and NEA website, respectively, including but not limited to the Bid Bulletins relating to the following:
8.5.5.1 Invitation to Bid;8.6 Pre-Bid Conference
8.5.5.2 Pre-qualification, if any;
8.5.5.3 Pre-bid Conference;
8.5.5.4 Submission and Opening of Bids;
8.5.5.5 Bid Evaluation;
8.5.5.6 Post-qualification, if any:
8.5.5.7 Awarding and Contract Signing; and
8.5.5.8 Joint filing before the ERC.
8.6.1 The TPBAC, Joint TPBAC or TPA shall conduct a pre-bid conference to address the queries from the prospective bidders.8.7 Bid Evaluation Criteria and Process
8.6.2 The pre-bid conference shall discuss, among other things, the eligibility requirements, the TOR and the technical, legal and financial components of the PSA to be bid out.
8.6.3 The TPBAC, Joint TPBAC or TPA shall reply to the written queries or clarifications of the Gen Cos who have purchased the Bid Documents in the form of Bid Bulletins.
8.6.4 Decisions of the TPBAC, Joint TPBAC or TPA amending any provision of the Bidding Documents shall be issued in writing through a Supplemental/Bid Bulletin at least seven (7) working days before the deadline for the submission and receipt of bids.
8.6.5 Supplemental/Bid Bulletins may be issued in the following circumstances:
8.6.5.1 Request of the prospective GenCos for clarification(s) on or for an interpretation of any part of the Bid Documents; and
8.6.5.2 Upon the initiative of the TPBAC, Joint TPBAC or TPA for purposes of clarifying or modifying any provision of the Bidding Documents. Any modification to the Bid Documents shall be identified as an amendment.
8.7.1 The TPBAC, Joint TPBAC or TPA shall undergo a qualification evaluation of the legal, technical, and financial requirements submitted by GenCos using the criteria indicated in the Bid Documents.8.8 Receipt and Opening of Bids
8.8.1 The bidders shall be required to submit their bids on or before the deadline stipulated in the Bid Documents and the supplemental Bid Bulletins.8.9 Within five (5) working days upon signing of the PSA, the DU and the winning bidder shall jointly file the PSA to the ERC, copy-furnished the DOE and NEA, in case of ECs.
8.8.2 The opening of bids shall take place in the presence of all qualified bidders and the TPBAC, Joint TPBAC or TPA.
8.8.3 The TPBAC, Joint TPBAC or TPA shall proceed to determine the winning bidder using the evaluation criteria prescribed in the Bid Documents.
8.8.4 The winning bidder should undergo a pre-/post-qualification process in order to determine whether the concerned bidder complies with and is responsive to all the requirements and conditions as specified in the TOR and other pertinent bidding documents.
9.2.1 No proposal was received by the DU;SECTION 10. COMPLIANCE TO RENEWABLE ENERGY LAW
9.2.2 Only one Genco submitted an offer; or
9.2.3 Competitive offers of prospective Gencos failed to meet the requirements prescribed in the bid documents.
13.1 Decision of the TPBAC, Joint TPBAC or TPA at any stage of the CSP may be questioned by filing a written request for reconsideration within three (3) calendar days upon receipt of written notice or upon verbal notification. The TPBAC, Joint TPBAC or TPA shall decide on the request for reconsideration within seven (7) days from receipt thereof.
In the event, that the request for reconsideration is denied, decisions of the TPBAC, Joint TPBAC or TPA may be protested in writing to the governing board of the DU or its duly authorized officer/s.
The protest must be filed within seven (7) calendar days from receipt of the resolution denying its request for reconsideration. A protest shall be made by filing a verified position with the governing board of the DU or its duly authorized officer/s, accompanied by the payment of a non-refundable protest fee which shall be determined by the concerned TPBAC, Joint TPBAC or TPA.
The verified position paper shall contain the following information: name of bidder, address, name of project, brief statement of facts, issue to be resolved and such other matters and information pertinent and relevant to the proper resolution of the protest.
The position paper is verified by an affidavit that the affiant has read and understood the contents thereof and that all allegations therein are true and correct of his personal knowledge or based on authentic records. An unverified position paper shall be considered unsigned and produces no legal effect and non-payment of protest fee will result to the outright dismissal of the protest.
Protests shall be resolved within seven (7) calendar days from receipt thereof. Decision of the governing board of the DU or its duly authorized officer/s shall be final. Court action may be resorted to after protests have been resolved with finality.
13.2 Any conflict or dispute of any kind between the parties in connection with the implementation of the contract, the parties shall make every effort to first resolve amicably by mutual consultation or shall be submitted to arbitration in the Philippines according to the provisions of Republic Act No. 876 (Arbitration Law) and Republic Act No. 9285 (Alternative Dispute Resolution Act of 2004) or by mutual agreement, the parties may agree in writing to resort to other alternative modes of dispute resolution.SECTION 14. FINES AND PENALTIES
14.1 Without prejudice to criminal liability, non-compliance with any provision of this Policy shall, after due process, subject to the non-complying party to administrative sanctions following the ERC's Amendment on the Policy to Govern the Imposition of Administrative Sanctions in the Form of Fines and Penalties Pursuant to Section 46 of Republic Act No. 9136, such as but not limited to:SECTION 15. TRANSITORY PROVISION
14.1.1 Failure to comply with the conduct of CSP;
14.1.2 Failure to submit reportorial requirements relative to CSP and/or PSA;
14.1.3 Disclosing confidential classified information;
14.1.4 Soliciting or accepting, directly or indirectly, any gift, gratuity, favor, or any monetary value from prospective CSP participants; and
14.1.5 Gross negligence or serious misconduct of TPBAC, Joint TPBAC or TPA members.
16.1 Sections 3 and 4 of DOE Department Circular No. DC2015-06-0008 are hereby repealed. All other parts of Department Circular No. DC2015-06-SECTION 17. SEPARABILITY CLAUSE
0008, which are not affected thereby, shall continue to be in full force and effect.
16.2 Any issuance made by any GOCCs regarding CSP inconsistent with this policy is hereby repealed.
16.3 Nothing in this Policy shall be construed as to amend, supersede, or repeal any of the mechanism or institutions already existing or responsibilities already allocated or provided for under any existing law, rule, or contract.