An unsolicited proposal is (in)complete when…

  • February 19, 2018

An unsolicited proposal is (in)complete when…

 

The completeness (or incompleteness) of an unsolicited proposal (UP) submitted by a private sector proponent (PSP) for a public-private partnership (PPP) arrangement largely depends on the law or regulation upon which the UP is submitted. For build-operate-transfer (BOT) and joint- venture (JV) schemes, the BOT law and its implementing rules and regulations (IRR) and the 2013 guidelines issued by the National Economic and Development Authority (Neda Guidelines), respectively, shall govern.

In a PPP, there are three levels of completeness—for the UP, for post-UP-acceptance-pre-award-negotiations and for post-award-pre-notice-to-proceed. The third level is more complete than the second, and the second more complete than the first. As the process progresses, more details are supplied, i.e., from assumptions, to secondary information, to negotiation-related materials and to primary data.

For a UP, the BOT law only provides three requirements referring to the technology, a negative list of government support and need for a challenge. There is no statutory provision that enumerates the contents for completeness. The IRR, however, imposes four—cover letter; feasibility study, which should indicate relevant assumptions; company profile; and the draft contract.

The Neda Guidelines, on the other hand, requires that the JV activity must be consistent with the mandate of the government agency and is responsive to development goals, and the UP must be clear as to the arrangement and the technical, financial, economic and legal aspects.

Thus, an incomplete or noncompliant UP may not be accepted by the Implementing Agency (IA).

The next question is when—when should a UP be complete? Must it be complete on the day of filing or can subsequent submissions be admitted? Can a UP be supplemented or clarified after the day of submission of the original UP?

There are two views—the final-on-the-date-of-submission (closed view) or the continuing or open-until-rejected approach (open view).

Under the closed view, the UP must be complete on day one. Subsequent submissions or modifications would mean that the UP initially submitted was incomplete and that the new date of the UP would be date of the last/latest submission.

Applying the open view, the date of original submission is not affected by additional submissions, clarifications and supplementations. The date of UP submission is immovable. What was submitted at the first instance and all submissions made thereafter are now parts of one whole, i.e., the UP, that shall be subjected to the first-level completeness test.

Adherence to this view is not prohibited. There is no provision in the BOT law and its IRR, and the Neda Guidelines that would bar an IA from taking a flexible disposition toward UPs. What is proscribed under relevant laws and regulation is accepting a UP that is incomplete or noncompliant for level one purposes, and proceeding with negotiations.

Verily, a UP can be modified only if the same has not been rejected. Any IA could forestall this situation if it rejects the UP within the timeframe given under the IRR and the Neda Guidelines, i.e., 30 and 60 days, respectively, to accept or reject.

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