BASES PROVISUR versión word

REPUBLIC OF PERU
PRIVATE INVESTMENT PROMOTION AGENCY
PROINVERSIÓN COMMITTEE FOR INFRASTRUCTURE PROJECTS AND
PUBLIC SOCIAL SERVICES, MINING, SANITATION, IRRIGATION AND
AGRICULTURAL AFFAIRS – PRO DESARROLLO
BIDDING TERMS
PUBLIC BID FOR INTEGRAL PROJECTS FOR THE CONCESSION OF THE
PROJECT “PROVISION OF SANITATION SERVICES FOR SOUTH LIMA
DISTRICTS”
December, 2012
page 1
TABLE OF CONTENTS
1.
OBJECTIVE AND CHARACTERISTICS OF THE PUBLIC BID ........................................... 8
1.1.
Introduction..........................................................................................................................8
1.2.
Official Announcement and Purpose of the Public Bid ..........................................................8
1.3.
Definitions ...........................................................................................................................9
1.4.
Public Bid Legal Framework:..............................................................................................16
1.5.
Functions of the Committee ...............................................................................................19
1.6.
Contract.............................................................................................................................20
1.7.
Schedule of the Public Bid .................................................................................................21
1.8.
Interpretation and References ............................................................................................21
2.
AUTHORIZED AGENTS AND LEGAL REPRESENTATIVE ............................................... 22
2.1.
Authorized Agents .............................................................................................................22
2.1.1.
Appointment of Authorized Agents .................................................................................22
2.1.2.
Letter of Appointment .....................................................................................................22
2.1.3.
Granted Powers .............................................................................................................22
2.1.4.
Information.....................................................................................................................22
2.1.5.
Notifications ...................................................................................................................23
2.1.6.
2.2.
Replacement .................................................................................................................23
Legal Representative .........................................................................................................23
2.2.1.
Appointment and Powers ...............................................................................................23
2.2.2.
Submission of the Power of Attorney ..............................................................................24
2.2.3.
Form of the Power of Attorney........................................................................................24
2.2.4.
Registration in the Registry Office ..................................................................................25
3.
INQUIRIES AND INFORMATION ...................................................................................... 26
3.1.
Inquiries about the Bidding Terms and Suggestions about the Draft Contract .....................26
3.1.1.
Period for inquiries and suggestions ...............................................................................26
3.1.2.
Form of the Inquiries ......................................................................................................26
3.1.3.
Circular Letters ..............................................................................................................26
3.2.
Access to Information - Specialized Information Center ......................................................27
3.2.1
Access to the Specialized Information Center. ...................................................................27
3.2.2
Non-Disclosure Agreement ................................................................................................27
3.2.3
Contents of the Specialized Information Center..................................................................28
3.3.
Request for Meetings with the Committee ..........................................................................28
3.4.
Limitation of Liability ..........................................................................................................28
3.4.1
Independent Decision of the Bidders ..................................................................................28
3.4.2
Limitation of Government Liability ......................................................................................28
3.4.3
Scope of the Limitation of Liability ......................................................................................28
3.4.4
Bidder's Acceptance of the provisions of Section 3.4. .........................................................29
4.
SELECTION PROCESS .................................................................................................... 30
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4.1.
Stages of the PUBLIC BID Short-listing, Technical Proposal and Economic Proposal .........30
4.2.
Economic Proposal ............................................................................................................30
5.
GENERAL ASPECTS FOR THE SUBMISSION OF ENVELOPES NO. 1, NO. 2 AND NO. 332
5.1.
General Requirements .......................................................................................................32
5.1.1.
Submission of Envelopes by an Authorized Agent or Legal Representative ....................32
5.1.2.
Language ......................................................................................................................32
5.2.
Original Documents and Copies .........................................................................................32
5.3.
Form of Submission of Envelopes No. 1, No. 2 and No. 3 ..................................................32
5.4.
Preparation and Submission Costs ....................................................................................33
5.5.
Accuracy of the Information ...............................................................................................33
6.
STAGE 1 OF THE PUBLIC BID: REQUIREMENTS FOR SHORT-LISTING AND
CONTENTS OF ENVELOPE NO. 1 (CREDENTIALS) .................................................................. 34
6.1.
General Requirements .......................................................................................................34
6.1.1.
For Bidders ....................................................................................................................34
6.1.2.
Payment of Rights to Participation..................................................................................34
6.2.
6.2.1.
Bidder's Short-listing Requirements: ..................................................................................34
Contents of Envelope No. 1 – Short-listing Proposal.......................................................34
6.2.1.1.
Document No. 1: Affidavit of Reliable Information (General Requirement)...............35
6.2.1.2.
Document No. 2: Affidavit of Participation through any type of PPP (General
Requirement) ............................................................................................................................35
6.2.1.3.
Document No. 3: Affidavit of Fulfillment of the Technical Requirements for Shortlisting (Operating Technical Requirement) .................................................................................35
6.2.1.4.
Document No. 4: Document of Creation of a Legal Person (Legal Requirement).....37
6.2.1.5.
Document No. 5: Affidavit of Commitment to Incorporation (Legal Requirement).....37
6.2.1.6.
Document No. 6: Affidavit of Incorporated Legal Person (Legal Requirement).........38
6.2.1.7.
Document No. 7: Affidavit of Participation of partners or shareholders (Legal
Requirement). ...........................................................................................................................38
6.2.1.8.
Document No. 8: Power of Attorney of the Legal Representative (Legal
Requirement). ...........................................................................................................................39
6.2.1.9.
Document No. 9: Affidavit of No Impediments to enter into agreements with the
Government (Legal Requirement)..............................................................................................39
6.2.1.10.
Document No. 10: Affidavit of waiver to invoke or exercise privileges or claims (Legal
Requirement). ...........................................................................................................................39
6.2.1.11.
Document No. 11: Affidavit of No Conflicts of Interest (Legal Requirement) ............40
6.2.1.12.
Document No. 12: Affidavit of Direct or Indirect participation in a Single Bidder (Legal
Requirement). ...........................................................................................................................40
6.2.1.13.
Document No. 13: Commitment to Create a Consortium, if applicable (Legal
Requirement) ............................................................................................................................40
6.2.1.14.
Document No. 14: Affidavit of Minimum Net Equity (Financial Requirement). ..........40
6.2.1.15.
Document No. 15: Proof of Payment of Right to Participation..................................41
6.3.
Authority of the Committee regarding the submitted information .........................................41
6.4.
Validation of the Information submitted to the Committee ...................................................41
6.5.
Validation of Legal Requirements.......................................................................................42
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6.6.
Simplification Mechanism...................................................................................................42
7.
STAGE 1 OF THE PUBLIC BID: SUBMISSION OF THE CONTENTS OF ENVELOPE N° 1
SHORT-LISTING RESULTS ........................................................................................................ 44
7.1.
Submission of Envelope N° 1....................... ......................................................................44
7.2.
Announcement of Shortlisted Bidders ................................................................................45
8.
STAGE 2 OF THE PUBLIC BID: OPENING OF ENVELOPES NO. 2 AND NO. 3 ............... 46
8.1.
Requirements of Envelope No. 2- Technical Proposal ........................................................46
8.1.1.1.
Document No. 1: Affidavit of Validity of Information.................................................46
8.1.1.2.
Document No. 2: Acceptance of the Bidding Terms and Contract ...........................46
8.1.1.3.
Document No. 3: Guarantee of Validity, Effect and Integrity of the Proposal............46
8.1.1.4.
Document No. 4: Technical Proposal ......................................................................47
8.1.1.5.
Document No. 5: Concession Contract Final Version..............................................47
8.2.
Requirements of Envelope No. 3 - Economic Proposal.......................................................47
9.
STAGE 2 OF THE PUBLIC BID: RECEPTION OF ENVELOPES NO. 2 AND NO. 3 AND
OPENING OF ENVELOPE NO. 2................................................................................................. 49
9.1.
Submission of envelopes No. 2 and No. 3 and Opening of Envelope No. 2 ........................49
9.2.
Evaluation of Envelopes No. 2 ...........................................................................................50
10.
STAGE 3 OF THE PUBLIC BID: OPENING OF ENVELOPE NO. 3 AND AWARD ............. 51
10.1.
Opening of Envelope No. 3 And Award ..............................................................................51
10.1.1.
Opening of Envelope N° 3.......................... ....................................................................51
10.1.2.
Selection of the best proposal ........................................................................................51
10.1.3.
Award ............................................................................................................................52
10.1.4.
Tie of Economic Proposals.............................................................................................52
10.2.
Challenge ..........................................................................................................................52
10.2.1.
Challenge Procedure .....................................................................................................52
10.2.2.
Guarantee of Challenge to the Award.............................................................................53
10.2.2.1.
Provision for the Guarantee Conditions ......................................................................53
10.2.2.2.
Forfeiture of the Guarantee ........................................................................................53
10.2.2.3.
Return of the Guarantee.............................................................................................53
10.3.
Public Bid null and void ......................................................................................................54
10.4.
Suspension or Cancellation of the PUBLIC BID..................................................................54
11.
STAGE 4 OF THE PUBLIC BID: CLOSURE PROCEDURES ............................................. 55
11.1.
Closure Date .....................................................................................................................55
11.2.
Actions for Closure ............................................................................................................55
11.2.1.
List of actions to be taken as of the Closure Date. ..........................................................55
11.2.2.
Documents to be submitted............................................................................................55
11.2.3.
Obligations of the Government .......................................................................................56
11.3.
Signing of the Contracts.....................................................................................................57
11.4.
Forfeiture of the Guarantee of Validity, Effect and Integrity of the Economic Proposal ........57
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11.4.1.
Non-fulfillment of obligations by the Bidder or the Successful Bidder ..............................57
11.4.2.
Legal actions in the event of non-fulfillment ....................................................................57
11.4.3.
Effective Date of the Contract.........................................................................................57
12.
12.1.
GUARANTEE OF VALIDITY, EFFECT AND INTEGRITY OF THE ECONOMIC PROPOSAL59
Provision of the Guarantee - Conditions .............................................................................59
12.2. Return or Forfeiture of the Guarantee of Validity, Effect and Integrity of the Economic
Proposal ........................................................................................................................................59
13.
PERFORMANCE BOND .................................................................................................... 61
13.1.
Conditions .........................................................................................................................61
13.2.
Form of Provision...............................................................................................................61
14.
FINAL PROVISIONS ......................................................................................................... 62
14.1.
Applicable Laws.................................................................................................................62
14.2.
Jurisdiction and Competence .............................................................................................62
14.3.
Reimbursement of Process Costs ......................................................................................62
14.4.
Destination and use of the resources effectively generated for the Government .................62
ANNEX NO. 1: SCHEDULE ......................................................................................................... 64
ANNEX NO. 2: NON-DISCLOSURE AGREEMENT ...................................................................... 65
ANNEX NO. 3: REFERENCE TERMS .......................................................................................... 67
ANNEX NO. 4 SAMPLE OF PERFORMANCE BOND .................................................................. 81
APPENDIX NO. 1: ....................................................................................................................... 84
APPENDIX NO. 2 ........................................................................................................................ 86
FORM NO. 1: SAMPLE OF LETTER OF SUBMISSION OF ECONOMIC PROPOSAL ENVELOPE NO. 3 ....................................................................................................................... 88
FORM NO. 2: AFFIDAVIT ON RELIABLE INFORMATION ........................................................... 90
FORM NO. 3: GENERAL SHORT-LISTING REQUIREMENTS..................................................... 92
FORM NO. 4: SHORT-LISTING TECHNICAL REQUIREMENTS – OPERATION ......................... 94
FORM NO. 5: COMMITMENT TO HIRE THE OPERATOR........................................................... 97
FORM NO. 6: SHORT-LISTING TECHNICAL REQUIREMENTS - CONSTRUCTION ................ 100
FORM NO. 7: COMMITMENT TO HIRE THE CONSTRUCTOR ................................................. 103
FORM NO. 8: CREDENTIALS FOR SHORT-LISTING (INCORPORATED LEGAL PERSON) .... 106
FORM NO. 9: CREDENTIALS FOR SHORT-LISTING OF A CONSORTIUM .............................. 108
FORM NO. 10: CREDENTIALS FOR SHORT-LISTING - PARTICIPATION ................................ 111
FORM NO. 11: CREDENTIALS FOR SHORT-LISTING. NO IMPEDIMENTS ............................. 113
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FORM NO. 12: CREDENTIALS FOR SHORT-LISTING - WAIVER OF PRIVILEGES ................. 115
FORM NO. 13: CREDENTIALS FOR SHORT-LISTING - NO CONFLICTS OF INTEREST ......... 117
FORM NO. 14: REQUIREMENTS FOR SHORT-LISTING - PARTICIPATION IN A SINGLE
BIDDER ..................................................................................................................................... 119
FORM NO. 15: COMMITMENT TO INCORPORATION .............................................................. 121
FORM NO. 16: FINANCIAL REQUIREMENTS ........................................................................... 124
FORM NO.
17:
SAMPLE
OF
GUARANTEE
LETTER
OF
VALIDITY,
EFFECT
AND
SERIOUSNESS OF THE ECONOMIC PROPOSAL ................................................................... 127
FORM NO. 18: VALIDITY OF THE INFORMATION - ENVELOPE NO. 2.................................... 130
FORM NO. 19: SAMPLE OF GUARANTEE OF CHALLENGE TO THE AWARD ........................ 132
FORM NO. 20: AFFIDAVIT ON THE OPERATION CONTRACT ................................................ 135
FORM NO. 21: AFFIDAVIT ON THE CONSTRUCTION CONTRACT ......................................... 138
FORM NO. 22: VALIDITY OF INFORMATION FOR INCORPORATION TO THE SHORTLISTED
BIDDER ..................................................................................................................................... 141
FORM NO. 23: VALIDITY OF INFORMATION FOR INCORPORATION OF A NEW COMPANY TO
BE HIRED.................................................................................................................................. 143
FORM NO. 24: SIMPLIFICATION MECHANISM FOR SUBMITTING INFORMATION ................ 145
FORM NO. 25: SWORN STATEMENT OF RELATIONSHIP WITH THE PERSON WHO PAID THE
PARTICIPATION FEES IN THE SHORT-LISTING STAGE......................................................... 147
FORM NO. 26: SWORN STATEMENT OF ACCEPTANCE OF THE BIDDING TERMS AND THE
CONTRACT ............................................................................................................................... 149
FORM NO. 27: AFFIDAVIT ON COMMITMENT TO INCORPORATION ..................................... 151
FORM NO. 28: AFFIDAVIT ON COMMITMENT TO INCORPORATION ..................................... 153
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1.
1.1.
OBJECTIVE AND CHARACTERISTICS OF THE PUBLIC BID
Introduction
These Bidding Terms are provided to regulate the process of the Public Bid for Integral
Projects for the award of a Concession for public infrastructure works and public services
to the private sector, for the Project "Provision of Sanitation Services for South Lima
Districts", hereinafter, the PROJECT.
The objectives of these Bidding Terms are:
•
Conducting a transparent, simple and objective procedure on the basis of equality
among all the participants in the process.
•
Ensuring the active involvement of the highest amount of Bidders possible, with
experience in execution, operation and maintenance of infrastructure and sanitation
works, and services of provision of water supply, sanitation systems, treatment and
final disposal of wastewater, according to the requirements of the PROJECT.
•
Determining the basic rules according to which the Bidders shall prepare their
proposals.
1.2.
Official Announcement and Purpose of the Public Bid
The Government of the Republic of Peru, by means of the Private Investment Promotion
Agency - PROINVERSIÓN, calls for the Public Bid for Integral Projects, to engage the
participation of the private sector in the concession of the Project “Provision of Sanitation
Services for South Lima Districts”, hereinafter, the PUBLIC BID.
The PUBLIC BID shall have the following basic reference characteristics, according to
these Bidding Terms and to the Contract:
•
The PUBLIC BID consists of the design, financing and building of the sanitation
infrastructure to enlarge and improve the water supply, sanitation system, wastewater
treatment and final disposal services under responsibility of SEDAPAL, in the districts
of Punta Hermosa, Punta Negra, San Bartolo and Santa María del Mar, as well as the
operation and maintenance of the components listed in Annex No. 3.
•
The Concession period shall vary between twenty (20) and thirty (30) years, counted
from the date of signing of the Contract, according to the terms and conditions
page 8
provided therein. The period shall be determined and informed in due time, during the
PUBLIC BID process.
The Bidders are entitled to use any existing studies, which are at their disposal in the
Specialized Information Center. The Bidder is granted broad freedom to use such
information; however, the Proposal submitted by the Bidder is under its exclusive
responsibility, and cannot in the future, acting as Concessionaire or in any other instance,
argue or claim for damages, indemnifications or compensations due to any possible errors,
omissions, inaccuracies or defects of any nature existing in such documents.
Any additional information that can be found in the Specialized Attention Center shall be
informed in due time through a Circular Letter.
1.3.
Definitions
All the references made within this document to any "Section", "Form", "Annex" and
“Appendix” should be interpreted as made respectively to the sections, forms, annexes and
appendixes of and to these Bidding Terms, unless otherwise provided.
The expressions in the singular include the plural, and vice versa. Any time references
shall be interpreted as made to the Peru local time.
The terms in uppercase characters included in these Bidding Terms and that are not
expressly defined herein are referred to the Applicable Laws, or to the meaning given to
them during the activities performed during the development of the PROJECT or, failing
that, to terms that are usually written in uppercase characters.
Within these Bidding Terms, the following terms shall have the meanings indicated below;
without prejudice to this, in case of conflict, the definition stated in the Contract shall
prevail.
1.3.1
Non-Disclosure Agreement: It is agreement that the Bidder, through one of its Authorized
Agents or Legal Representatives, shall sign before using the Specialized Information
Center made available by PROINVERSIÓN. The Non-Disclosure Agreement can be found
as Annex No. 2 to these Bidding Terms.
1.3.2
Award: The declaration to be made by the Committee of PROINVERSIÓN, after having
determined the Shortlisted Bidder who submitted the best proposal within the terms and
conditions established in the Bidding Terms and, thus, the one who wins the Public Bid.
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1.3.3
Successful Bidder: The Shortlisted Bidder that is granted the Award in the PUBLIC BID
process.
1.3.4
Private Investment Promotion Agency - PROINVERSIÓN: A public entity of the
Government of the Republic of Peru, referred to in Law No. 28660 and in the Ministerial
Resolution No. 225-2011-EF-10, which is in charge of promoting private investments in
public infrastructure works and public service projects that can be granted in concession to
the private sector, according to the Applicable Laws.
1.3.5
Authorized Agents: The natural persons appointed as such by the Bidder of Shortlisted
Bidder.
1.3.6
Advisors: The legal or natural persons who participate in the private investment promotion
process, providing advisory or consultancy services to PROINVERSIÓN.
1.3.7
Competent Government Authority: Any national, regional, department, province or district
government or authority, or any of their regulatory or administrative subsidiaries or
agencies. In general, any entity or institution in Peru with executive, legislative or judiciary
powers according to law, or an officer of any of the government, authorities or institutions
mentioned above, with jurisdiction over the persons or matters in question.
1.3.8
Bidding Terms: This document, including any Annexes, Appendixes, Forms and Circular
Letters issued by the Committee, which determine the terms under which the PUBLIC BID
shall take place.
1.3.9
Local Banks: The Banks listed in APPENDIX No. 1: to these Bidding Terms.
1.3.10 Specialized Information Center: The physical space that contains the information related to
the PROJECTS. Its location shall be communicated in due time through a Circular Letter.
1.3.11 Circular Letters: The provisions referred to in Section 3.1.3 of these Bidding Terms, which
are issued by the Committee in order to complete, clarify, interpret or amend the contents
of these Bidding Terms or another Circular Letter, or to address inquiries made by any
authorized persons according to the provisions of these Bidding Terms. The Circular
Letters issued shall form an integral part of these Bidding Terms. In case of discrepancy or
incompatibility between their content and the provisions in the Bidding Terms, the Circular
Letters shall prevail.
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1.3.12 Committee: The PROINVERSIÓN Committee for Infrastructure Projects and Public Social
Services, Mining, Sanitation, Irrigation and Agricultural Affairs – PRO DESARROLLO,
created by the Supreme Resolution Nº 010-2012-EF, as amended by the Errata published
on February 9 and 21, 2012.
1.3.13 Evaluation Committee: The committee appointed by the Committee to evaluate the
documents provided in Envelopes No. 1 and/or No. 2, according to the Bidding Terms.
1.3.14 Proof of Payment of Right to Participation: The document that PROINVERSIÓN shall give
to the Bidder as a proof of having made the payment for Right to Participation.
1.3.15 Public Bid for Integral Projects or Public Bid: The process of selection conducted by
PROINVERSION and regulated by the Bidding Terms, for the Award of the PROJECT and
the signing of the Contract.
1.3.16 Consortium: The association of two or more legal persons that have no legal person status
independently from that of its members, which has been created in order to participate as a
Bidder in this public bid.
1.3.17 Concessionaire: The legal person created within the Republic of Peru by the Successful
Bidder, who shall execute the Contract.
1.3.18 Grantor: The Government of the Republic of Peru, represented by the Minister of Housing,
Construction and Sanitation, by virtue of the Third Supplementary, Transitory and Final
Provision of the Supreme Decree No. 016-2005-VIVIENDA.
1.3.19 Contract: The concession contract, the Annexes and Appendixes thereto and any other
document that may become part thereof, signed by the Grantor and the Concessionaire,
which incorporates the Bidding Terms as an integral part, as well as all the legal, technical
and financial information that shall guide the relationship between the Parties during the
effective period of the Contract.
1.3.20 Contract for Provision of Services: The contract that shall be entered into by the
Concessionaire and SEDAPAL on the date of signing of the Concession Contract, which
defines the obligations of the Concessionaire in connection with the supply of drinking
water, the treatment of wastewater and the construction of water supply and sewage
system infrastructure and other works, in return for a remuneration.
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1.3.21 Effective Control: A natural or legal person who exercises or is subject to the Effective
Control of another natural or legal person, in the cases defined in the CONASEV
Resolution Nº 090-2005-EF-94.10, as amended by the CONASEV Resolution Nº 0052006-EF/94.10 or by any substituting regulations.
1.3.22 Official Announcement: The announcement through which the interested parties are invited
to participate in the PUBLIC BID, according to the provisions in these Bidding Terms.
1.3.23 Schedule: The time sequence of activities to be performed during the PUBLIC BID and are
listed in Annex No. 1 to the Bidding Terms.
1.3.24 Affidavit: A written statement submitted by a Bidder or Shortlisted Bidder in which it declares
or undertakes a commitment that is deemed true for the purposes of this Public Bid without
prejudice to the provisions in Section 6.3 of the Bidding Terms.
1.3.25 Repairable Defect: An error, which is not deemed substantive at the discretion of the
Committee or the Evaluation Committee, in which the Bidder may incur in any document
provided in Envelopes No. 1 or No. 2, without affecting the validity of its proposal and the
solution of which does not entail changes in the sense, conditions or contents of the
submitted proposal or documentation.
1.3.26 Right to Participation: The single payment of One Hundred Thousand United States Dollars
(US$ 1.000) to be made by the Bidder into the Foreign Currency Savings Account with
Banco Continental No. 0011-0661-66-0200035113 and Interbank Account (CCI) No. 011661-000200035113-66 in order to participate in the PUBLIC BID.
1.3.27 Day(s): Working days, i.e. days that are not Saturdays, Sundays or non-business days in the
city of Lima. Also any days that are not workdays for the public sector and days in which
the banks in the city of Lima are not obliged to serve the public, as per the provisions of the
Government Authority shall also be considered as holidays.
1.3.28 Calendar Days: The working days, non-working days and non-working holidays.
1.3.29 Dollar, United States Dollar, US Dollar or US$: The currency of legal tender in the United
States of America.
1.3.30 Affiliate Companies: A company shall be considered as affiliated to another company if the
Effective Control of both companies is exercised by the same Parent Company.
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1.3.31 Parent Company: The company that has the Effective Control of one or more companies.
This definition also includes the company that has the Effective Control of a Parent
Company, and so forth.
1.3.32 Subsidiary Company: The company the Effective Control of which is exercised by another
company.
1.3.33 Related Company: A company related to the Bidder, according to the definition provided in
the regulations of the Superintendency of the Stock Market. On this basis, two related
companies are those that have a relationship that entails a related behavior, because: i)
they are part of the same economic group, ii) a legal person has a direct or indirect
participation in the social capital of another company, which allows the former to have
presence in the latter's board of directors, iii) one single guarantee supports obligations
assumed by both companies, iv) more than 50% of one company's obligations are
guaranteed by the other company, or v) more than 50% of the obligations of a legal person
are claims receivable of the other. A Related Company is also any Affiliate Company or
Subsidiary Company or Parent Company.
1.3.34 Domestic Banking Company: Those listed in Annex No. 1 to the Bidding Terms.
1.3.35 International Financial Entity: A financial company authorized to operate by the supervisory
entity in its country or origin, other than Peru. These companies are listed in Appendix No.
2 to the bidding Terms of this Public Bid.
1.3.36 National Environmental Quality Standards for Water (EQS-Water): The level of
concentration or ratio of elements, substances or physical, chemical or biological
parameters in water, in its nature or receiving substance and basic component of water
ecosystems, that does not represent any significant risk for human health or the
environment. Such standards are defined in Supreme Decree No.002-2008-MINAM,
approval of the National Environmental Quality Standards for Water, as published on July
31, 2008, and regulated by the Supreme Decree No. 023-2009-MINAM, approval of the
provisions for the implementation of the National Environmental Quality Standards (EQS)
for Water, as published in November 19, 2009, and by other specific regulations
established by the Ministry of the Environment and the National Water Authority.
1.3.37 Competition Factor: The factor that determines the Successful Bidder in the PUBLIC BID.
1.3.38 Closure Date: The day, time and place to be communicated by the Committee through a
Circular Letter, in which the activities described in Section x shall take place.
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1.3.39 FONCEPRI: The Private Investment Promotion Fund in public infrastructure works and public
services, referred to in Article 11 of the Supreme Decree No. 059-96-PCM, approval of the
Consolidated Text of the regulations with the force of Law that govern the concession to
the private sector of public infrastructure works and public services.
1.3.40 Performance Guarantee: The guarantee to be provided by the Concessionaire through a
bank guarantee letter or a stand-by credit letter, issued or endorsed by a Banking
Company as provided in Section 13 of the Bidding Terms and to the sample letter attached
hereto as Annex No. 4.
1.3.41 Guarantee of Validity, Effect and Integrity of the Proposal: The bank guarantee letter or
stand-by credit letter to be provided by the Shortlisted Bidder to PROINVERSIÓN to
guarantee the validity, effect and integrity of its Proposal and the fulfillment of the
applicable obligations by the Closure Date, according to the sample attached to these
Bidding Terms as Form No. 17.
1.3.42 Guarantee of Challenge to the Award: The guarantee to be provided by the Shortlisted
Bidder through a bank guarantee letter issued or endorsed by a Banking Company, in the
event the Shortlisted Bidder raises a challenge to the Award, according to Form No. 19.
1.3.43 Sanitation Infrastructure: The group of works and equipment that compose the water supply
system, sanitation sewage system and wastewater treatment and final disposal systems
required to provide these services.
1.3.44 IGV: The General Sales Tax (Impuesto General a las Ventas) applicable in Peru, according to
the Supreme Decree No. 055-99-EF, Consolidated Text of the General Sales Tax and
Excise Tax Law.
1.3.45 Consortium Members: Legal or natural persons who are part of a Consortium.
1.3.46 Investment(s): Investments include any expenses incurred in studies, projects, equipment
and works that are considered necessary to achieve the service objectives that are
established in the contract.
1.3.47 Applicable Laws and Provisions: The group of legal provisions that regulate the Contract.
They include the Constitution of the Republic of Peru, the regulations with the force of Law,
Supreme Decrees, regulations, ordinances and resolutions that may be issued by any
page 14
Competent Government Authority –according to its creation law– and are legally binding
for the Parties.
1.3.48 Notifications: The documents referred to in Section 2.1.5.
1.3.49 Nuevo Sol: The currency of legal tender in Peru.
1.3.50 Minimum Participation: The participation of at least 25% of the subscribed and paid social
capital with voting rights, that the Strategic Partner shall hold and maintain in the
Concessionaire, at least during the first ten (10) years of the Concession period.
1.3.51 Wastewater Treatment Plant (WTP): An infrastructure to be used in the treatment process
for the treatment of wastewater generated in the area of influence of the Project.
For the purposes of these Bidding Terms, the Wastewater Treatment Plants are: a) San
Bartolo Norte; b) San Bartolo Sur; c) Wastewater Treatment Plants of Santa María del Mar
and d) New Wastewater Treatment Plant to be built by the Concessionaire.
1.3.52 Bidder: A legal person or a Consortium that participates in this Public Bid, has acquired
Rights of Participation and submits itself to the provisions of these Bidding Terms.
1.3.53 Shortlisted Bidder: The Bidder whose documents, duly provided in Envelope No. 1
(Shortlisting Proposal), have fulfilled the requirements provided in these Bidding Terms and
thus have been accepted and announced by the Committee, and who is entitled to submit
Envelope No. 2 (Technical Proposal) and Envelope No. 3 (Economic Proposal).
1.3.54 Proposal: The documentation to be submitted by the Shortlisted Bidders, both for the
Technical Proposal of the Economic Proposal.
1.3.55 Economic Proposal or Envelope No. 3: The economic consideration, expressed in Nuevos
Soles, proposed by the Shortlisted Bidder according to Section 8.2 and Form No. 1 of the
Bidding Terms.
1.3.56 Shortlisting Proposal or Envelope No. 1: The group of documents to be submitted by the
Bidder, according to Section 7.1 of the Bidding Terms.
1.3.57 Technical Proposal or Envelope No. 2: The group of documents to be submitted by the
Bidder, according to Section 8.1 of and Annex No. 3 to the Bidding Terms.
page 15
1.3.58 Project “Provision of Sanitation Services for South Lima Districts” or Project: A project
consisting of the design, financing and building of the sanitation infrastructure to enlarge
and improve the water supply, sanitation system, wastewater treatment and final disposal
services under responsibility of SEDAPAL, in the districts of Punta Hermosa, Punta Negra,
San Bartolo and Santa María del Mar, as well as the operation and maintenance of the
components listed in Annex No. 3.
1.3.59 Draft Contract: The non-final draft Contract that shall be submitted in the versions defined in
the Schedule to the Bidders, in order to receive their opinions, comments and/or
suggestions. None of the terms and/or criteria in the Draft Contract shall be binding to
PROINVERSIÓN, the Committee, the Grantor and/or SEDAPAL whatsoever.
1.3.60 Legal Representative: The natural person(s) appointed as such by a Bidder or Shortlisted
Bidder, according to the provisions in these Bidding Terms.
1.3.61 SEDAPAL: Name of the public sanitation service provider under private law “Servicio de Agua
Potable y Alcantarillado de Lima”.
1.3.62 Strategic Partner: The Bidder or one of its members (in case of Consortium) who
demonstrates the fulfillment of the minimum operation or construction requirements
established in the Bidding Terms, and who is owner of the Minimum Participation.
1.3.63 Supervisor: The Grantor, who shall perform supervisory activities on the obligations that the
Concessionaire shall perform during the effective period of the Contract. For these
purposes, the Grantor can choose and/or hire a specialized company.
1.4.
Public Bid Legal Framework:
The PUBLIC BID and any actions related to it shall be governed by the following legal
framework:
Legislative Decree No. 674, declaring the national
-
interest in the promotion of private investments in Government companies, which
creates
the
Private
Investment
Promotion
Commission
(COPRI),
now
PROINVERSION, as the entity governing the private investment promotion process at
the level of the companies that integrate the Government business activities.
-
Decree Law No. 25570, Article 2 –as amended by
Article 6 of the Law No. 26438– establishes that the Government of the Republic of
Peru, through a Supreme Decree, is entitled to grant assurances and guarantees
page 16
through a contract to Peruvian and foreign natural and legal persons who make
investments in Government companies and entities, which may be required to protect
the investors' purchases and investments, according to the applicable laws in force.
Law No. 26338, General Sanitation Services Law
-
and the Consolidated Text of its Regulations, as approved by Supreme Decree No.
023-2005-VIVIENDA, as well as any provisions in force from the Supreme Decree No.
008-2005-VIVIENDA and the Supreme Decree No. 016-2005-VIVIENDA, which
regulate the provision of Sanitation Services and the granting of concessions to private
entities for their operation.
Supreme Decree N° 059-96-PCM, approval of the
-
Consolidated Text of the regulations with power of Law that regulate the transfer in
concession to the private sector of public infrastructure works and public services.
Supreme Decree N° 060-96-PCM, approval of the
-
Consolidated Text of the Regulations of the Laws that regulate the transfer in
concession to the private sector of public infrastructure works and public services.
Law No. 26885, approval of benefits to concessions
-
of public infrastructure works and services.
Law
-
No.
27111,
transfer
to
COPRI
(now
PROINVERSIÓN) of the functions, attributions and competences granted to
PROMCEPRI.
Emergency Decree No. 075-2000, establishment of
-
measures to ensure the effective and efficient provision of sanitation services and the
strengthening of the providers of these services.
Law No. 27701, establishing provisions to guarantee
-
the regulatory agreement between privatization processes and concessions with the
applicable laws.
-
Supreme Decree No. 027-2002-PCM, merging
COPRI, the National Foreign Investment and Technology Commission and the
Economic Promotion Office of the Commission of Promotion of Peru into the Executive
Office, FOPRI, which became the Investment Promotion Agency - PROINVERSION.
page 17
Supreme Decree No. 095-2003-EF, changing the
-
name of the Investment Promotion Agency into Private Investment Promotion Agency
– PROINVERSIÓN.
Law No. 28059, Decentralized Investment Promotion
-
Framework Law, and its Regulations, as approved by the Supreme Decree No. 0152004-PCM and its amending provisions.
Article 22L of the Law No. 27785, Law of the National
-
Control System and the Comptroller General's Office, provides that the Comptroller
General's Office is responsible for communicating any transactions, pledges,
guarantees and other securities that the Government may grant, including Draft
Contracts, which may involve its credit or financial capacity, both for negotiations
within or outside the country.
Law
-
No.
28660,
determining
the
legal
nature
of
PROINVERSIÓN as a Decentralized Public Entity within the Economy and Finances
sector, with legal capacity, technical, functional, administrative, economic and financial
autonomy.
-
Legislative Decree No. 1012, approving of the Framework Law
of Private-Public Partnerships for the Generation of productive employment and
regulations to streamline private investment promotion processes.
-
Supreme Decree No. 146-2008-EF, approving the Regulations to
Legislative Decree No. 1012, as amended.
-
Supreme Resolution No. 010-2012-EF, published on February 9,
2012, and Erratum published on February 21, 2012, creating the PROINVERSION
Committee for Infrastructure Projects and Public Social Services, Mining, Sanitation,
Irrigation and Agricultural Affairs – PRO DESARROLLO.
-
Agreement
of
the
Directive
Council
of
February
15,
2012,
commissioning the PRO DESARROLLO committee the PROJECT “Provision of
Sanitation services for South Lima Districts”.
-
-
National Building Regulations, as amended.
Laws and regulations in force in Peru and applicable to the Project.
page 18
Every Bidder, Shortlisted Bidder, Successful Bidder or person who participates in this
Public Bid shall be deemed aware, directly or indirectly, of the contents of these Bidding
Terms and of the Applicable Laws. No evidence to the contrary shall be admitted.
The PUBLIC BID shall be conducted in accordance with the provisions in these Bidding
Terms and, in the aspects not expressly treated herein, with all the applicable Laws and
provisions.
By virtue of the First Technical Supplementary Provision of the Legislative Decree No.
1017, approving the Government Contracting Law, and the COPRI Agreement No. 355-42001, the provisions included in such Legislative Decree are not applicable to this Public
Bid.
1.5.
1.5.1
Functions of the Committee
The function of the Committee is to conduct the private investment promotion process that
is the foundation of the PUBLIC BID, subject matter of these Bidding Terms. The Committee is
entitled to promote, schedule, regulate, amend, guide, supervise, control and prepare all the
provisions that may be relevant or deemed necessary for the execution of the process, to solve
all the matters that are not included in the Bidding Terms or the Applicable Laws and, in
general, to exercise all the other powers granted by the Applicable Laws.
1.5.2
Any amendments to these Bidding Terms shall be informed to the Bidders through
Circular Letters.
1.5.3
The Committee may amend the time periods established in these Bidding Terms. This
Public Bid may be postponed or cancelled if deemed convenient by the Committee, without the
need to express a particular cause and without incurring in any liability as a consequence of
such decision.
1.5.4
The mere submission of information described in these Bidding Terms and/or requested
by the Committee for short-listing purposes by a Bidder does not obligate the committee to
declare such Bidder a Shortlisted Bidder or a Qualified Bidder, nor the submission of a
Proposal implies any acceptance by the Committee.
1.5.5
The mere submission of the documents required for short-listing by a Bidder implies the
full awareness, acceptance of and submission to each one of the procedures, obligations,
conditions and regulations -with no exception- that are established in the Bidding Terms and
page 19
have binding effect, and irrevocably and unconditionally waives its right to file any action, claim,
complain or request for compensation with any authority against the Government, the Grantor,
SEDAPAL, PROINVERSIÓN, the Committee, the Advisors, or against any other entity,
institution or officer of the Government of Peru or the Grantor or SEDAPAL on the exercise of
the powers described in these Bidding Terms.
1.5.6
Unless specifically established otherwise in the Bidding Terms, the decisions made by the
Committee or PROINVERSIÓN –as applicable– with regard to this Public Bid are final, shall not
result in a compensation of any kind and shall not be subject to challenge in any administrative,
judicial or arbitration proceedings. In consequence, by participating in the PUBLIC BID, the
natural or legal persons included within the scope of the Bidding Terms waive their rights to
initiate a challenge process against any such decisions, with the exception of the challenge
cases described in Section 10.2 of the Bidding Terms.
1.6.
1.6.1
Contract
Draft Contract
The Draft Contract, which includes the conditions, rights and obligations of the parties
during the duration of the Contract, shall be prepared and made available to the Bidders
and Shortlisted Bidders in the time established in Annex No. 1 to these Bidding Terms.
The Bidders and Shortlisted Bidders shall receive the Contract Draft versions before the
submission of Envelope No. 2, and shall be entitled to provide their opinions, comments
and suggestions in this regard.
The Committee shall receive and evaluate the suggestions of the Bidders and Shortlisted
Bidders about the Contract Drafts, and shall consider those that it may deem relevant for
the following version. The final Contract version, without the Economic Proposal, shall be
signed and put into Envelope No. 2 by every Shortlisted Bidder.
1.6.2
The Draft Contract shall be made available to the Bidders according to the provisions of
the Schedule.
1.6.3
The Bidders shall be entitled to submit their comments to the Contract Draft within the
period established in the Schedule, under the same formalities provided ion Sections 3.1.1
and 3.1.2 of the Bidding Terms. The Committee shall not be obligated to collect the
comments made by the Bidders about the Contract Draft.
page 20
1.7.
Schedule of the Public Bid
The dates for the activities in the Schedule are provided in ANNEX No. 1: SCHEDULE to the
Bidding Terms.
The Committee shall be entitled to amend the dates in the Schedule at any moment; such
amendments shall be informed to the interested parties in a Circular Letter.
Unless otherwise established, any term for Bidders to submit any documents related to the
Public Bid shall expire at 17:00 hours, Lima, Peru time.
1.8.
1.8.1.
Interpretation and References
Any terms and expressions used in the Bidding Terms shall be interpreted in their natural,
literal sense, unless they have specifically been assigned another meaning within this
document or its annexes, or such meaning may be inferred from their context; in any case, the
interpretation shall be made in accordance with the regulations in force in the Republic of Peru.
It shall be deemed, without admitting proof to the contrary, that any participant in this process is
aware of the laws and regulations in force in the Republic of Peru that are applicable to this
case.
1.8.2.
The titles of the chapters, sections, annexes, forms and appendixes of the Bidding Terms
are exclusively used with illustrative purposes, and shall not have any impact on the
interpretation of their contents.
1.8.3.
In case of contradiction between the provisions in the Bidding Terms and those in any of
the forms, annexes or appendixes hereto, the provisions in the main document shall prevail
unless the attached documents include a clear and unambiguous indication that their contents
are an amendment of the provisions in the Bidding Terms. In any case, the contents of the
Circular Letters referred to in the Bidding Terms shall prevail over the provisions in the Bidding
Terms, although this indication may not be expressly stated.
page 21
2. AUTHORIZED AGENTS AND LEGAL REPRESENTATIVE
2.1.
Authorized Agents
2.1.1.
Appointment of Authorized Agents
Every Bidder may appoint up to two (02) natural persons with a common address in the city
of Lima or in Callao as its Authorized Agents, for the purposes of this Public Bid.
2.1.2.
Letter of Appointment
The appointment of the authorized agents shall be made by a simple letter signed by the
Bidder, expressly stating their powers and including ay relevant information, as provided in
Sections 2.1.3 and 2.1.4.
2.1.3.
Granted Powers
The duly appointed Authorized Agents shall be entitled to act individually from each other,
and not necessarily jointly. They shall be the only individuals empowered by the Bidder to:
i)
Represent the Bidder before PROINVERSIÓN, the Committee and the advisors
regarding all the matters that do not fall under the exclusive competence of the Legal
Representative, as provided in Section 2.2.1;
ii)
Answer, in the name of and with binding effect for the Bidder, all the questions made
by the Committee or the Evaluation Committee;
iii)
Receive judicial and non-judicial notices; and
iv)
Sign, with binding effect upon the Bidder, the Non-Disclosure Agreement mentioned in
Section 3.2.2
v)
Submit Envelopes No. 1, No. 2 and No. 3, without prejudice to the requirements of
form that they shall comply with.
2.1.4.
Information
The information to be provided by the Bidder with regard to each one of the Authorized
Agents shall be: a) name, b) identity document, c) common address in the city of Lima or in
Callao, d) telephone numbers, e) fax numbers and f) email address.
page 22
2.1.5.
Notifications
Any non-judicial notifications to the Bidder could be forwarded to any of the Authorized
Agents by fax and/or email, with a confirmation of complete transmission issued by the
receiver through another fax letter and/or email, in which case the notification shall be
deemed received on the date on which the transmission from the sender is complete; or by
a letter delivered by courier service or through a notary's office, in which case the
notification shall be deemed received on the delivery date. Any notification shall be
deemed correctly made and effective if it is received at the common address designated by
the Authorized Agents described in Section 2.1.4.
2.1.6.
Replacement
The Bidder, after notifying the Committee in writing in the form described in Section 2.1.2,
shall be able to replace any of its Authorized Agents at any time, or to change their
common address, telephone or fax numbers or email address designated for the
Authorized Agents, taking into account that the new common address and the telephone
and fax numbers and email address shall be within the city of Lima or Callao. The
appointment of the Authorized Agents or any change to their address, telephone, fax or
email address, as applicable, shall become effective on the date of receipt of the Bidder's
notification by the Committee.
2.2.
Legal Representative
2.2.1.
Appointment and Powers
The documents submitted in Envelopes No. 1, No. 2 and No. 3 and, in general, any
documents that a Bidder may file with regard to the Public Bid, shall be signed by the Legal
Representative of the person submitting the documents, who shall be duly authorized for
such purposes as provided under this section.
The Bidder shall be entitled to appoint up to two (2) Legal Representatives, individual or
joint representation powers, as provided under this Section. The address, fax number,
telephone number and email address of the Legal Representatives, as well as their
replacement, shall be submitted to the provisions in Sections 2.1.4, 2.1.5 and 2.1.6
The powers granted to the Legal Representatives shall include, but not be limited to, the
powers defined in Section 2.1.3, and shall be broad enough to entitle them to sign in the
name and behalf of the Bidder, individually or jointly, all the documents required in the
page 23
Bidding Terms, including any powers to initiate the challenge procedures defined in the
Bidding Terms, to sign presentation documents for the proposals and to execute the
Contract.
If the Bidder is a Consortium, the appointment of a Legal Representative shall be made
through the legal representatives and/or agents of the members of the Consortium who
have the powers to make this appointment, on a jointly basis. Such powers shall be proven
by submitting a copy of the power of attorney or other similar document, certified by a
notary public. However, should the member or members of the Consortium come from a
signatory of the “Hague Convention Abolishing the Requirement for Legalization for
Foreign Public Documents” adopted on October 5, 1961 in the City of La Hague, The
Netherlands, as approved by Resolution No. 29445 and ratified by the Supreme Decree Nº
086-2009-RE, it shall be sufficient that these documents fulfill the conditions established in
the convention above, provided that the corresponding country has not made an objection
to the accession of Peru to such Convention.
2.2.2.
Submission of the Power of Attorney
The Power of Attorney by which the Legal Representatives are appointed shall include the
relevant powers of representation, as well as the information mentioned in Section 2.1.4 of
the Bidding Terms. It shall be submitted in Envelope N° 1, together with the credentials.
The appointment of a new Legal Representative shall be effective only after the date on
which the Committee received the documents that prove such appointment.
2.2.3.
Form of the Power of Attorney
The granting of powers in Peru shall be executed as a public deed or be stated in the
legalized copy of the document of incorporation of the company that grants such powers, if
applicable.
Any Powers of Attorney granted outside Peru appointing one or more Legal
Representatives, shall be:
(i)
Duly authenticated or legalized by a competent Peruvian consulate; a translation
into Spanish shall be attached if the document is in any other language;
(ii)
Certified by the Ministry of Foreign Affairs of Peru.
page 24
Should the Bidder come from a signatory of the “Hague Convention Abolishing the
Requirement for Legalization for Foreign Public Documents” adopted on October 5, 1961 in
the City of La Hague, The Netherlands, as approved by Resolution Nº 29445 and ratified
by the Supreme Decree Nº 086-2009-RE, such document shall not require the legalization
mentioned in the paragraph above; it shall be sufficient that the document fulfill the
conditions established in the convention above, provided that the corresponding country
has not made an objection to the accession of Peru to such Convention.
In the case of the legal representative of a Strategic Partner, the powers of attorney, with
the formalities described in the paragraphs above, shall be submitted by the Closure Date.
2.2.4.
Registration in the Registry Office
Under no circumstance shall it be required that the Powers of Attorney of the Legal
Representative be registered in the Public Registry Office. However, they shall be
registered in the corresponding Registry Office before the Closure Date if the Bidder is
granted the Award.
page 25
3. INQUIRIES AND INFORMATION
3.1.
Inquiries about the Bidding Terms and Suggestions about the Draft Contract
3.1.1.
Period for inquiries and suggestions
Starting and ending on the dates indicated in the Schedule, the Bidders and Shortlisted
Bidders, as applicable, shall be entitled to make inquiries on the Bidding Terms and
suggestions about the Contract Draft through their Authorized Agents and/or Legal
Representatives.
3.1.2.
Form of the Inquiries
The inquiries and suggestions shall be made, in writing and in the Spanish language, to:
PROINVERSIÓN Committee for Infrastructure Projects and Public Social Services, Mining,
Sanitation, Irrigation and Agricultural Affairs – PRO DESARROLLO
Sirs
PROINVERSIÓN COMMITTEE FOR INFRASTRUCTURE PROJECTS AND PUBLIC
SOCIAL SERVICES, MINING, SANITATION, IRRIGATION AND AGRICULTURAL
AFFAIRS – PRO DESARROLLO
Attention: Sanitation Projects Office
PROINVERSIÓN
Av. Enrique Canaval Moreyra N° 150, Piso 8, San Isi dro – Lima, Peru
Telephone: 200-1200 Ext.: 1327
Fax: (+51-1) 221-2935
email: [email protected]
The documents containing the inquiries and suggestions on the Bidding Terms and
Contract Drafts shall be received at the intake desk of PROINVERSIÓN.
3.1.3.
Circular Letters
The responses to the inquiries on the Bidding Terms shall be issued by the Committee through
Circular Letters to all the Bidders or Shortlisted Bidders, as applicable, without mentioning the
name of the inquirer.
page 26
If, at any time, the Committee deems necessary to clarify, amend or complement the
Bidding Terms, it shall issue a Circular Letter for this purpose. Such Circular Letter shall be
addressed to the Authorized Agents and sent to the common address, according to
Sections 2.1.1 and 2.1.4 of these Bidding Terms.
All
the
Circular
Letters
shall
be
published
in
the
PROINVERSIÓN
website
www.proinversion.gob.pe.
After the short-listing stage, the Circular Letters shall only be forwarded to the Shortlisted
Bidders and, after the submission of Envelopes No. 2 and No. 3, only to the Shortlisted
Bidders who submitted proposals.
The Circular Letters issued by the Committee shall be deemed integral part of these
Bidding Terms, and shall be legally binding for all the Bidders and Shortlisted Bidders.
3.2.
Access to Information - Specialized Information Center
3.2.1
Access to the Specialized Information Center.
The Bidders who have paid the Rights to Participation and signed the Non-Disclosure
Agreement shall have access to the information related to the Project, which shall be
available for them in the Specialized Information Center until the date established in the
Schedule.
The use of the Specialized Information Center shall be subject to the access and use
regulations, to be communicated in due time through a Circular Letter.
The Bidders, through a written letter to the Head of Sanitation Projects of
PROINVERSION, signed by any of their Authorized Agents or Legal Representatives, shall
indicate the name of the individuals who shall have access to the Specialized Information
Center.
3.2.2
Non-Disclosure Agreement
The Authorized Agent(s) shall sign a Non-Disclosure Agreement, according to the sample
provided as Annex No. 2, and shall submit a signed specimen to the committee before
using the Specialized Information Center.
page 27
3.2.3
Contents of the Specialized Information Center
The list of documents related to the PROJECT, to be made available to the Bidders, shall
be communicated in due time through a Circular Letter. Any additional document that may
be incorporated to the Specialized Information Center shall also be informed to the Bidders
in due time.
3.3.
Request for Meetings with the Committee
Any Bidder, through its Authorized Agents and/or Legal Representatives, as applicable, shall
be entitled to hold meetings with members of the Committee no later than the day prior to the
submission of Envelope No. 1, which, for Shortlisted Bidders, shall be applicable until no later
than the day prior to the submission of Envelopes No. 2 and No. 3. The meetings shall be
arranged in coordination with the Head of Sanitation Projects of PROINVERSION.
3.4.
3.4.1
Limitation of Liability
Independent Decision of the Bidders
All Bidders or Shortlisted Bidders shall support their decision of whether submitting a
Shortlisting Proposal, Technical Proposal and Economic Proposal or not on their own
research, examinations, inspections, visits, discussions, analysis and conclusions derived
from the information made available and from the results of their research, at its sole
discretion.
3.4.2
Limitation of Government Liability
The Government of the Republic of Peru, the Grantor, SEDAPAL, PROINVERSIÓN, the
Committee or the Advisors do not assume responsibility for nor guarantee (expressly of
implicitly) the completeness, integrity, reliability or truth of the verbal or written information
that is provided in connection with or during the PUBLIC BID. In consequence, none of the
persons participating in the PUBLIC BID can attribute any responsibility to any of the
parties mentioned above or to their representatives, agents or servants, for the use that
may be given to such information or for any inaccuracy, insufficiency, defect, and lack of
updating or for any other cause not expressly indicated in this Section.
3.4.3
Scope of the Limitation of Liability
page 28
The limitation stated in Section 3.4.2 includes, to the broadest extent possible, all the
information related to the Public Bid that is effectively known, any unknown information and
the information that should have been known at a given time –including any errors and
omissions in it– by the Government of the Republic of Peru or by any of its departments,
entities or officers, the Grantor, SEDAPAL, PROINVERSIÓN, the Committee or the
Advisors.
In the same way, this limitation of liability includes any information that is whether directly
or indirectly provided and prepared by any of the parties above, or not.
The limitation of liability also includes any information available in the Specialized
Information center, as well as any information provided through Circular Letters or any
other means of communication, the information acquired during the visits to the facilities
related to the Public Bid and the information in these Bidding Terms, including any
annexes, appendixes and forms attached hereto.
3.4.4
Bidder's Acceptance of the provisions of Section 3.4.
The submission of Envelope No. 1 shall constitute, without the need for any additional
action, the acceptance of all the provisions in Section 3.4 of the Bidding Terms by the
Bidder and, if applicable, by the Concessionaire, as well as an irrevocable and
unconditional waiver, to the broadest extent allowed by the Applicable Laws and
Provisions, to its rights to initiate any action, counterclaim, exception, complaint, claim or
request for compensation against the Government of the Republic of Peru or any of its
departments, entities or officers, the Grantor, SEDAPAL, PROINVERSIÓN, the Committee
or the Advisors.
page 29
4. SELECTION PROCESS
4.1.
Stages of the PUBLIC BID Short-listing, Technical Proposal and Economic Proposal
This Public Bid shall be developed in three (3) stages, through a system of three (3)
envelopes.
During the Short-listing stage, to take place during the time period established in the
Schedule attached to these Bidding Terms, the formal aspects, capacity and background of
the Bidders shall be evaluated through the documents contained in Envelope No. 1, to
ensure that they meet the requirements stated in these Bidding Terms to be shortlisted and
enter the second selection stage.
After the Short-listing stage, the Shortlisted Bidders shall be invited to submit Envelope No.
2 and Envelope No. 3 at the required time and date, as well as to the opening of Envelope
No. 2, which shall contain the information required to guarantee the validity and integrity of
the information submitted, the acceptance of the general Contract conditions, guarantees
of the validity and effect of the Economic Proposal and Technical Proposal, if any.
The documents contained in Envelope No. 2 shall be evaluated during the period
established in the Schedule of the Bidding Terms. Only the Shortlisted Bidder whose
Technical Proposals –submitted in Envelope No. 2– have been declared acceptable by the
Committee shall pass to the third stage of the selection process.
After finishing the technical evaluation, the Shortlisted Bidders shall be invited to the
announcement of the Technical Proposals that were accepted, and to the opening of
Envelope No. 3 containing the Economic Proposal.
4.2.
Economic Proposal
The Economic Proposal that shall determine the Award shall be submitted in Envelope No.
3, according to Form No. 1 of the Bidding Terms.
The preparation of the Economic Proposal by a Shortlisted Bidder shall take into account,
among other factors, the reference PROJECT costs.
The discount rate, along with the Competition Factor, shall be communicated in due time
through a Circular Letter.
page 30
The project shall be awarded to the Shortlisted Bidder with the highest score, according to
its Economic Proposal. The methodology to assign a score to an Economic Proposal shall
be defined in due time and communicated through a Circular Letter.
page 31
5. GENERAL ASPECTS FOR THE SUBMISSION OF ENVELOPES No. 1, No. 2 and No. 3
5.1.
General Requirements
5.1.1.
Submission of Envelopes by an Authorized Agent or Legal Representative
Envelopes No. 1, No. 2 and No. 3 can only be submitted personally by one of the
Authorized Agents of a Bidder, or by a Legal Representative of a Bidder. No documents
received by mail, fax or any other means of communication shall be received nor accepted.
5.1.2.
Language
Unless otherwise stated in these Bidding Terms, all the submitted documents shall be
written in Spanish language, or accompanied by a simple translation into the Spanish
language. If any discrepancy between a text in two languages is identifies, the Spanish
version shall prevail.
5.2.
Original Documents and Copies
The affidavits and forms contained in Envelope No. 1 and the documents contained in
envelope No. 2 (Technical Proposal), shall be submitted in one (1) original version or copy
certified by a Notary Public, and two copies, respectively marked “Original”, “Copy No. 1”
and “Copy No. 2”.
The documents marked “Copy No. 1” and “Copy No. 2” shall not need to be certified by a
Notary Public or legalized by a consulate.
Any other documents contained in Envelope No. 1 may be submitted as simple copies and
marked as “Original”, “Copy No. 1” and “Copy No. 2”.
Envelope No. 3 (Economic Proposal) shall only contain one (1) original document.
5.3.
Form of Submission of Envelopes No. 1, No. 2 and No. 3
On any date of submission the documents shall be submitted in properly closed envelopes,
marked Envelope No. 1, Envelope No. 2 and Envelope No. 3, respectively. The envelope
shall also show the name of the Bidder or Shortlisted Bidder, as applicable.
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All the documents contained in the envelopes shall be legible; all the pages shall be
consecutively numbered and initialed by the legal representative. The envelope shall
include a table of contents, indicating the page number of all the documents included in
each envelope.
If any discrepancy between a number written in digits and in words is identified, the amount
expressed in words shall prevail.
5.4.
Preparation and Submission Costs
The Bidder or Shortlisted Bidder shall cover all the direct or indirect expenses which it may
incur, related to the preparation of Envelopes No. 1, No. 2 and No. 3, as applicable.
The Government of the Republic of Peru or any involved official department or officer, the
Grantor, SEDAPAL, PROINVERSION, the Committee or the Advisors shall not be
responsible in any case for these expenses, regardless of the mode applied to conduct the
PUBLIC BID or its results.
5.5.
Accuracy of the Information
The Bidder shall demonstrate its commitment to provide reliable information through Form
no. 2, which shall have the effect of an affidavit.
Such Affidavit shall be submitted in Envelope No. 1, as a simple document signed by the
Bidder's Legal Representative.
The Committee reserves the right to verify the accuracy of all the documents submitted by
the Bidder or Shortlisted Bidder during the different stages of the PUBLIC BID, without this
involving any limitation to the liability of the Bidder or Shortlisted Bidder for the possible
incompleteness or inaccuracy of such information.
The lack of accuracy or completeness of the data and information submitted by the Bidder or
Shortlisted Bidder in the PUBLIC BID process may cause its disqualification in any of the
stages.
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6. STAGE 1 OF THE PUBLIC BID: REQUIREMENTS FOR SHORT-LISTING AND CONTENTS OF
ENVELOPE NO. 1 (CREDENTIALS)
6.1.
General Requirements
6.1.1.
For Bidders
Only legal persons or consortia shall be able to participate in this PUBLIC BID. A legal
person, including its related companies, can only participate directly or indirectly in one
Proposal.
The Bidders and/or Shortlisted Bidders, as applicable, shall be able to form Consortia
once, until the date established in the Schedule for this purpose. Bidders and/or Successful
Bidders grouped in a Consortium shall be able to change their members for one single
time, until the date established in the Schedule.
6.1.2.
Payment of Rights to Participation
To participate in the PUBLIC BID, gain access to the Specialized Information Center and
submit Envelope No. 1, the Bidder must have paid for the Rights to Participation, which
amount to one thousand United States Dollars (US$ 1,000.00). This amount is not
reimbursable. After this payment, PROINVERSIÓN shall provide the Bidder with a proof of
payment. Optionally the Bidder may request a printed copy of the Bidding Terms, which
shall also be made available in the PROINVERSIÓN website.
The payment for the Rights to Participation shall be made through a deposit into the Banco
Continental US$ Savings Account Nº 0011-0661-66-0200035113, in the name of
PROINVERSIÓN. A copy of the proof of deposit shall be sent to the email address
[email protected], including the details of the legal person who made
the deposit, in order to issue a Proof of Payment for Rights to Participation.
The purchaser of the Rights to Participation in the Short-listing stage who decides not to
participate in the Public Bid can transfer the rights to a third party. For this purpose, the
purchaser shall submit Form No. 25, signed by the legal representative of the transferor
and legalized, in Envelope No. 1.
6.2.
Bidder's Short-listing Requirements:
6.2.1.
Contents of Envelope No. 1 – Short-listing Proposal
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Envelope No. 1 - Short-listing Proposal, shall contain the credentials and documents
required to evaluate the capacity and conditions required for the Short-listing of the
Bidders.
The forms entitled with the word “Affidavit” shall have such effect, and must be duly signed
by the Bidder's Legal Representative(s).
In Envelope No. 1, the Bidder shall include the following documents:
6.2.1.1.
Document No. 1: Affidavit of Reliable Information (General Requirement)
Submission of Form No. 2, in which the Bidder commits to submit only reliable information.
6.2.1.2.
Document No. 2: Affidavit of Participation through any type of PPP (General
Requirement)
Submission of Form No. 3, in which the Bidder –or at least one of the members, in case of
a consortium– demonstrates the ownership of a participation of no less than 25% in any
project –preferably in sanitation– through a Public-Private Partnership (PPP) in a company
or consortium.
6.2.1.3.
Document No. 3: Affidavit of Fulfillment of the Technical Requirements for
Short-listing (Operating Technical Requirement)
a)
Operation:
The Bidder shall demonstrate its experience within the last fifteen (15) years as operator of:
One or more desalination plants (sea water) for the treatment of water for human
consumption, with an individual or joint capacity of treatment of at least seventy-five
thousand m3/day (75,000 m3/day). One of these plants must have an operating capacity of
at least fifteen thousand m3/day (15,000 m3/day), and have been in continuous operation
for at least three (3) years.
A wastewater treatment plant or plants with a total capacity of treatment of at least sixty
thousand m3/day (60,000 m3/day). The treatment process applied in these plants shall be
at least of the secondary treatment type. One of these plants must have a treatment
capacity of at least ten thousand m3/day (10,000 m3/day), and have been in continuous
operation for at least three (3) years.
This experience may be demonstrated through the Bidder, through one or more members
of the Bidder –in case of consortium–, through a related company or through one or more
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specialized operators that shall be hired by the Concessionaire during the entire
Concession period.
The Operator shall be jointly liable with the Concessionaire for the provision of the services
under the latter's responsibility, according to the terms established in the Contract.
For this purpose, the Bidder shall use its participation in previous projects provided that
such participation in the company or consortium created to operate the project, or in the
company hired to operate the project, has been at least twenty-five percent (25%). The
experience of companies related to the specialized operator shall also be considered, if
demonstrated, under the same conditions as those mentioned in the paragraph above.
To prove this point, the bidder shall submit the Affidavit attached hereto as Annex No. 4. If
the Bidder decides to hire a company for the operation of the project, the Commitment to
Hire an Operator –according to the sample in Form No. 5– shall also be submitted.
b)
Construction:
The Bidder shall demonstrate its experience within the last fifteen (15) years in the
construction of:
One or more desalination plants (sea water) for the treatment of water for human
consumption, with an individual or joint capacity of treatment of at least seventy-five
thousand m3/day (75,000 m3/day). The bidder shall hold a certificate of acceptance of
works from the client, or any equivalent document in the country where the project was
executed. One of these plants must have a treatment capacity of at least ten thousand
m3/day (15,000 m3/day).
One or more automated wastewater treatment plants, with a joint capacity of treatment of
at least sixty thousand m3/day (60,000 m3/day). The bidder shall hold a certificate of
acceptance of works, or any equivalent document in the country where the project was
executed. The treatment process applied in these plants shall be the secondary treatment
type. One of these plants must have a treatment capacity of at least ten thousand m3/day
(10,000 m3/day).
This experience may be demonstrated through the Bidder, through one or more members
of the Bidder –in case of consortium–, through a related company or through one or more
constructors that shall be hired by the Concessionaire.
The Constructor shall be jointly liable with the Concessionaire for the provision of the
services under the latter's responsibility, according to the terms established in the Contract.
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For this purpose, the Bidder shall use its participation in previous projects, provided that
such participation in the company or consortium created to operate the project, or in the
company hired to operate the project, has been at least twenty-five percent (25%). The
experience of companies related to the specialized operator shall also be considered, if
demonstrated, under the same conditions as those mentioned in the paragraph above.
To prove this point, the bidder shall submit the Affidavit attached hereto as Annex No. 6. If
the Bidder decides to hire a constructing company, the Commitment to Hire a Contractor–
according to the sample in Form No. 7– shall also be submitted.
6.2.1.4.
Document No. 4: Document of Creation of a Legal Person (Legal Requirement).
The Bidder shall submit a Copy of the deed of incorporation of the Bidder or of the deeds of
incorporation of each one of the Consortium members, as applicable.
In addition to the deeds of incorporation of the Bidder or the Consortium Members, the
Committee shall also accept the Articles of Incorporation (or an equivalent document)
issued by the Government Competent Authority in the Bidder's country of origin –whether
for the Bidder or the Consortium Members.
6.2.1.5.
Document No. 5: Affidavit of Commitment to Incorporation (Legal Requirement)
The Bidder shall submit an Affidavit of its intentions to create a concessionaire company in
Peru, which shall have the single purpose of and be exclusively dedicated to the operation
and maintenance of the project. This company shall use any of the legal forms regulated by
the General Companies Law. In the case of a Consortium, the concessionaire shall be
created at least with the same shareholders, partners or members that the Bidder
encompasses as of the date of submission of Envelope No. 2.
The Affidavit form to be used, according to the case, is Form No. 27 or Form No. 28 of the
Bidding Terms.
The Concessionaire shall be created in consideration to the following aspects, without
limitation.
a)
The minimum social capital of the Concessionaire shall be established in due time
through a Circular Letter, which shall be fully subscribed and paid-in as provided in the
Concession Contract.
b)
The structure of the Concessionaire's shareholders shall not include any legal person that
has directly or indirectly –through a Related Company– been involved with an economic
proposal in the Public Bid and has not been granted the Award.
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c)
The shareholders shall include a Strategic Partner, who should independently own and
maintain a Minimum Participation of 25%.
d)
The Strategic Partner shall own and maintain such Minimum Participation until ten (10)
years after the Closure Date, according to the terms and conditions established in the
Concession Contract. After this period, the Strategic Partner may assign or transfer its
participation totally or partially, after having been authorized by the Grantor, to a new
Strategic Partner, who shall fulfill the requirements and conditions established in these
Bidding Terms.
6.2.1.6.
Document No. 6: Affidavit of Incorporated Legal Person (Legal Requirement)
The Bidder shall submit a sworn statement according to the sample attached hereto
as Form No. 8, if the bidder is a legal person, to confirm its incorporation according to
the applicable legal principles according to the laws of its country of origin.
If the Bidder is a Consortium, and in addition to the requirement above (applicable to
each one of its members), the Bidder shall submit Form No. 9, confirming its existence
and the joint liability of their Members for any taken obligations and submitted
Affidavits.
6.2.1.7.
Document No. 7: Affidavit of Participation of partners or shareholders (Legal
Requirement).
An Affidavit, according to the sample attached hereto as Form No. 10, showing the
percentage of participation in the Bidder for each one of its shareholders or partners.
In the case of a Consortium, information about the percentage of participation in the
bidder for each one of its members shall be required.
If the Bidder is a Consortium that is composed by one or more natural persons, they
shall submit a copy of their identity document (as applicable), their annual statement
of income for the last three (3) tax years or periods, as filed with the competent tax
authority, and a certificate of their credit history, issued by a credit risk agency or any
equivalent entity.
In this case, the Bidder shall also provide any applicable annexes and forms, duly
adapted to its status of natural person, according to the samples approved by the
Committee in due time.
The Constructors and Operators hired by the Concessionaire shall provide copies of
their deeds of incorporation, Form No. 8 and Form No. 10.
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6.2.1.8.
Document No. 8: Power of Attorney of the Legal Representative (Legal
Requirement).
The documents demonstrating that the Bidder has appointed a Legal Representative,
according to the requirements established in Section 2.2 of the Bidding Terms, which
shall be proven with the submission of a legalized copy of the corresponding Power of
Attorney.
6.2.1.9.
Document No. 9: Affidavit of No Impediments to enter into agreements with the
Government (Legal Requirement)
The Bidder shall submit an Affidavit, attached hereto as Form No. 11, indicating that
the Bidder and any of its Members (in case of a Consortium):
Are not subject to administrative sanctions involving a
•
temporary or permanent impediment to participating in selection processes
called for by the Government of the Republic of Peru, nor to entering into an
agreement with the Government of the Republic of Peru.
Have not committed a material breach that has
•
caused the termination of a contract with the Peruvian Government, entered
within the framework of Legislative Decree No. 1012 or an investment
promotion process, as defined in the Consolidated Text of the Concessions
Law, as approved by Supreme Decree No. 059-96-PCM, or the Law No.
28059, Decentralized Investment Promotion Law.
After granting the Award, the requirements shall also be fulfilled by the company that
signs the Contract.
Finally, the natural or legal persons that fall within the scope of Article No.1366 of the
Civil Code cannot become Bidders.
6.2.1.10.
Document No. 10: Affidavit of waiver to invoke or exercise privileges or claims
(Legal Requirement).
Submission of an affidavit according to the sample in Form No. 12, signed by the
Legal Representative of the Bidder, indicating that the Bidder, its shareholders or
partners and its members, and their shareholders and partners (if the Bidder is a
Consortium) waive their rights to invoke or exercise any privilege or diplomatic
immunity or other immunity, or to file a claim through diplomatic channels or in any
other way against the Government and its institutions, the Grantor, SEDAPAL,
PROINVERSIÓN, the Committee, its Members and Advisors, under Peruvian laws or
page 39
under any other laws with regard to their obligation related to these Bidding Terms, the
Short-listing Proposal, the Economic Proposal and the Contract.
6.2.1.11.
Document No. 11: Affidavit of No Conflicts of Interest (Legal Requirement)
Submission of the affidavit according to the sample in Form No. 13, signed by the
Legal Representative of the Bidder, stating that the legal and technical advisors of the
Bidder have not directly provided any type of services in favor of the Grantor,
SEDAPAL, PROINVERSIÓN or the Committee during the course of this process,
whether on a full-time, part-time or temporary basis, related to the Private Investment
Promotion Process referred to.
6.2.1.12.
Document No. 12: Affidavit of Direct or Indirect participation in a Single Bidder
(Legal Requirement).
Submission of the affidavit according to the sample in Form No. 14, signed by the
Legal Representative of the Bidder, stating that the Bidder, its shareholders, partners
or Members, as well as the partners or members of the latter (in case of a Consortium)
have not direct or indirect participation in any other Bidder.
For companies listed on stock exchanges, the participation requirement mentioned
above shall be limited if such company has the control of the management of another
Bidder, or of any of its members in case of a Consortium, according to the provisions
in the Regulations on Indirect Ownership, Relationship and Economic Groups, as
approved by Resolution CONASEV No. 090-2005-EF/94.10 and amended by
Resolution CONASEV No. 005-2006-EF/94.10 or by any other amending or
substituting regulations.
6.2.1.13.
Document No. 13: Commitment to Create a Consortium, if applicable (Legal
Requirement)
Submission of an affidavit according to the sample in Form No. 15, signed by the legal
representatives of the Bidder Consortium, stating their intention to create a Special
Purpose Company in Peru according to the applicable laws in force, with a company
purpose framed within the objective of this Public Bid. The minimum initial capital
contribution, as well as the modes of subscription and payment, shall be defined in
due time through a Circular Letter.
6.2.1.14.
Document No. 14: Affidavit of Minimum Net Equity (Financial Requirement).
The Bidder shall submit Form No. 16, by which the Bidder claims to have a minimum
Net equity for US$ 50,000,000.00 (Fifty Million and 00/100 United States Dollars) or
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an equivalent amount in Nuevos Soles. This requirement may be fulfilled by adding
the net equity of each member of the Bidder, in the case of a Consortium.
The Bidder shall provide whether its own financial figures or those of its Members –in
the case of a Consortium– its shareholders or partners, or of the shareholders or
members of their Related Companies.
Additionally, the Bidder shall submit, at least, audited financial statements for the
years 2010 and 2011, or equivalent documents1 from the Bidder, if it is a legal person,
or from the Members of the Bidder, in case of a Consortium, or from the respective
Related Company of the Bidder. For this purpose, the Legal Representative of the
Bidder shall submit an affidavit explaining its relationship with the Bidder.
The financial information referred to in this section can be filed in the original
language, provided that it is accompanied by a simple Spanish translation.
6.2.1.15.
Document No. 15: Proof of Payment of Right to Participation
This payment may be proven by submitting a simple copy of the Proof of Payment of
the Right to Participation in the name of the Bidder or, if applicable, in the name of any
of the Consortium members. Additionally, an Affidavit explaining the relationship
between the Bidder and this legal person shall be submitted, according to Form No.
25.
6.3.
Authority of the Committee regarding the submitted information
The Committee reserves the right to verify the accuracy of all the documents submitted by
the Bidder or Shortlisted Bidder during the different stages of the PUBLIC BID, without this
involving any limitation to the liability of the Bidder or Shortlisted Bidder for the possible
incompleteness or inaccuracy of the submitted data or information.
The lack of accuracy or completeness of the data and information submitted by the Bidder
or Shortlisted Bidder in this Public Bid may cause its disqualification in any of the stages.
6.4.
Validation of the Information submitted to the Committee
Starting from the submission of the short-listing documents and until the Closure Date, the
Bidder or Shortlisted Bidder agrees to make available to the Committee all the documents
that the Committee may require in order to confirm the validity of the information submitted.
1
An “equivalent” document is a document that demonstrates the company's economic and financial
information for a given time period.
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6.5.
Validation of Legal Requirements
By the Closure Date, the Successful Bidder and each one of its members, in case of a
Consortium, shall submit to the Committee an Informative Document stating that it is not
prohibited from participating in selection processes nor from entering into contracts with the
Government of the Republic of Peru; the document shall be issued by the Government
Contracting Supervisory Body (OSCE).
If the information is determined to be false, the Award shall be revoked, according to the
procedure established in Section 11.4
6.6.
Simplification Mechanism
A mechanism through which Bidders who have been short-listed and/or have submitted
documents and/or affidavits in the short-listing stage of another public bid process
conducted by PROINVERSION can, in the last two (2) years after the date of submission of
Envelope No. 1 of such public bid, request the Committee to acknowledge the validity of
the documents submitted for short-listing (in Envelope No. 1) and/or any additional
document submitted to demonstrate technical experience in any public bid process.
The Bidder who wishes to make use of the Simplification Mechanism shall:
a.
Request from the Committee a Certificate of Validity of Short-listing Documents,
indicating the name of the process for which they were submitted, as well as the
documents or credentials provided for short-listing purposes. The Bidder shall also
indicate the date of submission of these documents. This certificate shall not be
issued for documents that are more than two years old. The request shall be
submitted no later than twelve (12) Days before submitting the communication
referred to in Section 7.1 of the Bidding Terms.
PROINVERSION shall validate the applicability of the documents to the Short-listing
process of this Public Bid, according to the provisions in these Bidding Terms.
If the applicability above is verified, PROINVERSION shall issue to the Bidder a
Certificate of Validity of Short-listing Documents within no more than ten (10) Days
after the submission of the request for such certificate.
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b.
On the date and time set by the Committee for the compliance with Section 7.1 of the
Bidding Terms, the Bidder shall submit the following documents, that shall be
contained in Envelope No. 1:
1.
2.
Certificate of Validity of Short-listing Documents.
An Affidavit stating that the documents referred to in the Certificate of Validity of
Short-listing Documents are still valid, according to the sample attached hereto as
Form No. 24.
3.
Any new or additional documents required for Short-listing purposes in these
Bidding Terms, and
4.
A copy of the proof of payment of the Right to Participation.
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7. STAGE 1 OF THE PUBLIC BID: SUBMISSION OF THE CONTENTS OF ENVELOPE N° 1
SHORT-LISTING RESULTS
7.1.
Submission of Envelope N° 1
The Bidder shall request the Evaluation Committee to set the date and time for formally
filing Envelope No. 1, within the time period established in the Schedule.
Envelope No. 1 shall be received by the Evaluation Committee and opened in the presence
of a Notary. Minutes shall be taken to leave a written record of the submission of the
documents in Envelope No. 1, as well as of the number of pages of the documents
included in such Envelope.
The minutes referred to above shall include a statement of the admission or refusal of
Envelope No. 1, as applicable. Envelope No. 1 shall only be refused if one of the required
documents is not included.
During the evaluation after the submission of Envelope No. 1, if the Evaluation Committee
identifies the existence of Repairable Defects in the documents included in Envelope No. 1,
the Bidder shall be required to solve or repair the objections within the time period
determined in ANNEX No. 1: SCHEDULE, under penalty of being excluded from the rating
process.
Additionally, and in order to facilitate the evaluation, verification and comparison of
information and requirements, the Evaluation Committee may require a Bidder to clarify the
information contained in Envelope No. 1, in writing, without this involving any amendments
to its contents. The request for clarification and the response thereto shall be made in
writing, according to the provisions in the paragraph above.
After the Opening of Envelope No. 1, the Bidder or any legal or natural person directly
related with the process shall not be provided any information about the short-listing stage,
until such Bidder is served notice of its short-listing by the Evaluation Committee.
The Committee shall, within the maximum time period established in the Schedule, issue a
statement naming the Shortlisted Bidders able to participate in the following PUBLIC BID
stages, at the proposal of the Evaluation Committee.
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7.2.
Announcement of Shortlisted Bidders
The Committee shall announce the results of the Short-listing process by the date
established in the Schedule. For this purpose, a special communication shall be forwarded
to each one of the Shortlisted Bidders.
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8. STAGE 2 OF THE PUBLIC BID: OPENING OF ENVELOPES No. 2 AND No. 3
8.1.
Requirements of Envelope No. 2- Technical Proposal
On the date defined in the Schedule, and if one or more Bidders are shortlisted, Envelopes
No. 2 and No. 3 shall be received, and the Envelopes No. 2 containing the Technical
Proposal shall be opened. If no Bidders are shortlisted, the PUBLIC BID shall be declared
null and void.
Envelope No. 2 shall include:
8.1.1.1.
Document No. 1: Affidavit of Validity of Information
An Affidavit, according to the sample attached hereto as Form No. 18, by which the
Bidder declares under oath that the information, statements, certifications and in
general all the other documents submitted by the shortlisted Bidder remain in effect as
of the date of opening of Envelope No. 2, and shall remain effective for up to sixty (60)
calendar days after the Award, without prejudice to any extension of this term that the
Committee may provide for.
8.1.1.2.
Document No. 2: Acceptance of the Bidding Terms and Contract
The Bidder shall submit an Affidavit stating its awareness and acceptance of the
Bidding Terms and the final version of the Concession Contract, and agreeing that, if
the Bidder s granted the Award, the Concession Contract shall be signed by a
Concessionaire incorporated according to Section6.2.1.5.
This document shall be submitted according to the sample attached hereto as Form
No. 26.
8.1.1.3.
Document No. 3: Guarantee of Validity, Effect and Integrity of the Proposal
The Bidder shall guarantee the validity, effect and integrity of the Economic Proposal,
and provide a guarantee according to the sample in Form No. 17, which is deemed
integral part of these Bidding Terms. The guarantee amount shall be defined and
announced through a Circular Letter.
The guarantee of Validity, effect and Integrity of the Proposal consists of a guarantee
letter that shall be issued by a Local Bank, as provided in APPENDIX No. 1: to these
Bidding Terms. The guarantee shall be joint, unconditional, irrevocable and
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automatically enforceable, without the benefit of excussion or division. Alternatively,
the Committee may accept a guarantee letter or a stand-by credit letter, issued by a
First-Class International Financial Entity as described in APPENDIX No. 2 and
endorsed by a Local Bank, which may include the formalities applied by the creditor
Bank.
This guarantee shall be valid for one hundred twenty (120) calendar days after its date
of issue. The Committee shall provide for the extension of this guarantee period, for
which the Bidder shall be obligated to renew the guarantee for the time period
established for this purpose.
It should be noted that the Guarantee of Validity, Effect and Integrity of the Proposal
may be formed by more than one guarantee letter, each one of them with the
requirements mentioned in the paragraphs above and issued by a Local Bank or a
First-Class International Financial Entity and endorsed by a Local Bank. In this case,
the guarantee shall be the Shortlisted Bidder and the sum of the amounts on the
guarantee letters shall be equal to the amount mentioned above.
The guarantee provided by a Shortlisted Bidder that is not granted the Award shall be
returned within fifteen (15) days after the Closure Date.
8.1.1.4.
Document No. 4: Technical Proposal
The technical proposal shall include the best strategy that makes possible to optimize
the investments by stages during the concession period, particularly in the activities
related to the desalination plant for drinking water and the wastewater treatment plant.
This proposal shall be prepared according to the provisions in Annex No. 3.
8.1.1.5.
Document No. 5: Concession Contract Final Version
In addition to the documents mentioned above, a Shortlisted Bidder shall submit one
(01) copy of the final version of the Concession Contract, including all the Annexes
thereto. Each page of this document shall be initialed by the Legal Representative of
the Shortlisted Bidder. The amounts to be incorporated the Contract shall not appear
in the contract's wording, since they shall be written on the Closure Date according to
the successful Economic Proposal.
8.2.
Requirements of Envelope No. 3 - Economic Proposal
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On the date established in the Schedule, and if there are one or more Shortlisted Bidders
who have submitted acceptable Technical Proposals, the Committee shall proceed with the
opening of Envelopes No. 3 that contain the Economic Proposal. If there is not at least one
Shortlisted Bidder that has submitted an acceptable Economic Proposal, the Public Bid
shall be declared null and void.
Envelope No. 3 shall be prepared according to Form No. 1 attached to these Bidding
Terms. Additionally, the provisions in Section 4.2 of these Bidding Terms shall apply. Any
economic proposal that does not comply with the requirements above shall be invalid.
The Economic Proposals shall remain in force for at least sixty (60) calendar days after the
granting of the Award, even though they were not successful.
Any Economic Proposal with an effective period smaller than the one indicated above shall
become invalid. The Committee may extend the time period to submit Economic
Proposals.
For this purposes of this Public Bid, the submission of Envelope No. 3 by a Shortlisted
Bidder constitutes an irrevocable offer. An Economic Proposal implies that the Shortlisted
Bidder subjects itself to all the terms and conditions in the Bidding Terms, with no
exceptions.
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9. STAGE 2 OF THE PUBLIC BID: RECEPTION OF ENVELOPES No. 2 AND No. 3 AND
OPENING OF ENVELOPE No. 2.
9.1.
Submission of envelopes No. 2 and No. 3 and Opening of Envelope No. 2
The submission of Envelopes No. 2 and No. 3 and the opening of Envelope No. 2 shall
take place before the Committee and in presence of a Notary Public, at a place and time to
be determined and communicated through a Circular Letter on the date established in
Annex No. 1.
The delay tolerance for the beginning of the public session of reception and opening of
Envelopes No. 2 and No. 3 shall be of thirty (30) minutes after the time set for the
beginning of the public session. No more Shortlisted Bidders or documents shall be
admitted after this deadline.
If all the Shortlisted Bidders are present before the end of the delay tolerance, the
Committee may proceed with the reception of Envelopes No. 2 and No. 3.
The President of the Committee or any member replacing him or her shall begin the
reception of Proposals, and shall invite the Shortlisted Bidders to hand out the
corresponding envelopes.
After receiving the proposals, the Envelopes No. 2 shall be opened and the documents in
them shall be verified, in the same order in which they were received. The Committee shall
verify the contents of the envelopes in the presence of a Notary Public. The Notary Public
shall initial the margin of the submitted documents.
The Public Bid shall be declared null and void if there is not at least one (1) Proposal.
The submission of other Proposals, the delivery of additional documents and/or the
amendment of submitted proposals shall not be accepted after having started the opening
of the envelopes.
Any Envelopes No. 2 that may be deemed non-conforming, i.e. not containing the
documents listed in Section 8.1 of the Bidding Terms, shall invalidate the Technical
Proposal and be returned to the Shortlisted Bidder together with Envelope No. 3. The latter
shall remain unopened. The session minutes shall include a statement of the cause of the
non-conformity.
page 49
After verifying the conformity of Envelopes No. 2, Envelopes No. 3 shall be signed, sealed
and deposited in custody of the Notary Public until the date of the opening of Envelopes
No. 3 an Award.
If any of the Shortlisted Bidders in the reception of Proposals makes a comment, it shall be
recorded in the session minutes. In addition, the comments made by a Shortlisted Bidder
shall not be recorded it such Shortlisted Bidder refuses to sign the minutes.
9.2.
Evaluation of Envelopes No. 2
For the evaluation of technical proposals contained in Envelope No. 2, the Committee shall
appoint a Technical Evaluation Committee, which shall be composed by one or more
representatives from SEDAPAL and the National Sanitation Office of the Ministry of
housing, Construction and Sanitation, among others.
Additionally, and in order to facilitate the evaluation, verification and comparison of
information and requirements, the Technical Evaluation Committee may require a
Shortlisted Bidder to clarify the information contained in the Technical Proposal. The
request for clarification and the response thereto shall be made in writing, within a term to
be set and communicated, under penalty of being excluded from the evaluation.
The Technical Evaluation Committee shall evaluate the technical proposals contained in
Envelopes No. 2 and shall prepare an evaluation report, which shall be forwarded to the
Committee for consideration.
The Shortlisted Bidders with acceptable Technical Proposals, i.e. proposals that fulfill the
minimum requirements listed in Section 8.1 of the Bidding Terms, shall be announced
within the maximum term established in the Schedule.
The decision of the Committee on the results of the evaluation of Envelopes No. 2 is final
and cannot be the subject of a claim or challenge by any of the Shortlisted Bidders.
page 50
10. STAGE 3 OF THE PUBLIC BID: OPENING OF ENVELOPE No. 3 AND AWARD
10.1.
Opening of Envelope No. 3 and Award
10.1.1.
Opening of Envelope N° 3
After the period of evaluation of Envelopes No. 2, another public session shall take place
on the date established in the Schedule, in presence of the Notary Public who safeguarded
Envelopes No. 3, in order to reveal to the Shortlisted Bidders the results of the evaluation
of Envelope No. 2 and the list of Shortlisted Bidders who shall continue to the third
selection stage.
During the session mentioned in the paragraph above, the Public Notary shall invite the
Shortlisted Bidders to verify the integrity and inviolability of the Envelopes No. 3 that he or
she safeguarded,
The Technical Proposals that are not deemed acceptable shall be returned in their
unopened envelopes to their respective Shortlisted Bidders by the Notary Public.
Immediately after, the Notary Public shall open the Envelopes No. 3 of the Shortlisted
Bidders whose Technical Proposals are acceptable, one by one and in the same order in
which they were received. The Committee, in presence of the Notary Public, shall read the
contents of the envelopes, and verify that the Economic Proposals agree with the
provisions in the Bidding Terms. The Notary Public shall initial the margin of the submitted
documents.
The PUBLIC BID shall be declared null and void if there is not at least one (1) valid
Economic Proposal.
If any of the Economic Proposals in Envelope No. 3 does not comply with the requirements
provided in these Bidding Terms, such Economic Proposal shall not be considered a valid
Economic Proposal by the Committee.
10.1.2.
Selection of the best proposal
After having received the proposals and having opened Envelopes No. 3, verifying their
origin, the President of the Committee or any member replacing him or her shall announce
the valid Economic Proposals that were provided according to the sample in Form No. 1,
as well as the Bidder who submitted each one of such Economic Proposals.
page 51
The President of the Committee or any member replacing him or her shall determine the
proposal with the highest score, by applying the formula to be communicated in due time
through a Circular Letter.
The Public Bid shall be declared null and void if there is not at least one (1) valid Economic
Proposal.
10.1.3.
Award
The Award shall be granted to the Shortlisted Bidder who obtains the highest score,
according to Section 4.2
10.1.4.
Tie of Economic Proposals
In case of a tie in the highest rating, the Committee, in presence of the notary Public, shall
give an extension of thirty (30) minutes to the two top Shortlisted Bidders to provide a new
Economic Proposal without leaving the room. This new proposal shall be for a smaller
amount than the one in the previous proposal, signed by the Legal Representatives of the
Shortlisted Bidders and submitted in a new closed Envelope No. 3.
If the tie remains, the Committee, in presence of the Notary Public, shall determine the
Successful Bidder by drawing lots. This drawing of lots shall include the Bidders whose
Economic Proposals had the same rating. The Award shall be granted to the Bidder whose
lot was drawn.
10.2.
Challenge
10.2.1.
Challenge Procedure
The Shortlisted Bidders who believe to have been affected and, during the opening of
Envelope No. 3, have put on the record their intention to file a claim against the granting of
the Award, shall be entitled to file such challenge within a term of eight (8) working days
counted from the day after the Award.
The Committee shall issue a decision within ten (10) Days after the Date of filing of the
Challenge.
The Shortlisted Bidder shall be able to file an appeal with the Governing Council of
PROINVERSIÓN within three (3) Days after the date on the proof of delivery of the
Committee's decision.
page 52
The appeal may also be filed against the resolution of denial of the challenge by default, if
the Committee fails to issue a resolution on the challenge within the term of ten (10) Days.
In this case, the term to file the appeal shall be counted from the Day after the expiration
date of such term of ten (10) Days.
The appeal against the Committee's express resolution or resolution by default shall be
decided by the Governing Council of PROINVERSIÓN within thirty (30) Days after the date
of filing.
The resolution in this second instance shall be final and not open to appeal.
10.2.2.
Guarantee of Challenge to the Award
10.2.2.1.
Provision for the Guarantee Conditions
No challenge shall be deemed effectively filed and shall remain with no effect unless that,
together with the writ of challenge, the challenging Shortlisted Bidder provides the
Committee with a joint, irrevocable and unconditional bank guarantee letter, automatically
enforceable and without benefit of excussion, according to Form No. 19, in favor of
PROINVERSIÓN.
This bank guarantee letter shall be issued by a Banking Company listed in Appendixes No.
1 or No. 2 to the Bidding Terms, and shall be for an amount of one percent (1%) of the
Reference Investment in Works.
Alternatively, a guarantee letter or stand-by letter issued by an International Financial Entity
may be accepted, provided that it covers the amount above and is endorsed by a Banking
Company.
10.2.2.2.
Forfeiture of the Guarantee
The Guarantee of Challenge may be forfeited by PROINVERSIÓN if the appeal filed by the
Shortlisted Bidder is dismissed or deemed groundless, or if such appeal is not filed within
the term established in Section 10.2.1 of these Bidding Terms and, therefore, the
Committee's express resolution or resolution by default is agreed.
10.2.2.3.
Return of the Guarantee
If the challenge or appeal are accepted, the guarantee of challenge shall be returned to the
respective Shortlisted Bidder, without carrying any interest.
page 53
The guarantee of challenge referred to in this Section shall be effective for sixty (60) Days
after the date of the Award.
10.3.
Public Bid null and void
If at least one (1) acceptable Proposal or one (1) acceptable Technical Proposal are not
submitted, this Public Bid shall be declared null and void.
Likewise, if at least one (1) valid Economic Proposal that complies with the provisions in
these Bidding Terms is not submitted, the PUBLIC BID shall be declared null and void by
the Committee.
10.4.
Suspension or Cancellation of the PUBLIC BID
The PUBLIC BID may be suspended or canceled or declared null and void at any time, and
without the need to express any reason thereto, at the discretion of the Committee, that
shall not incur in any liability. This decision is not open to challenge.
page 54
11. STAGE 4 OF THE PUBLIC BID: CLOSURE PROCEDURES
11.1.
Closure Date
The Closure of the PUBLIC BID shall take place at a time and place to be communicated
through a Circular Letter, in the presence of a Notary public who shall certify the actions
mentioned in the following Section 11.2 . The expenses incurred for the participation of the
Notary Public shall be borne by the Successful Bidder.
11.2.
Actions for Closure
11.2.1.
List of actions to be taken as of the Closure Date.
The following actions must have taken place by the Closure Date:
i)
The promulgation of the Supreme Decree granting, under a contract, the Government
guarantee in support of the statements, securities and obligations assumed by the
Grantor, as well as the signing of the contract for securities and guarantees, as
provided in the Contract.
ii)
The Grantor and/or SEDAPAL shall have performed the actions required for the
delivery of the goods within the PROJECT scope, as provided in the Contract.
iii) The provision, by the Successful Bidder who signs the Contract (company or
Members of the Consortium, as applicable), of a certificate stating that it is not
prohibited from participating in selection processes nor from entering into contracts
with the Government, issued by the Government Contracting Supervisory Body
(OSCE). If the information is determined to be false, the Award shall be revoked.
11.2.2.
Documents to be submitted.
The Successful Bidder shall submit the following documents:
i)
As provided in Section 6.2.1 , subsection 0, the Successful Bidder shall submit the
documents that demonstrate the registration with the Registry Office of the articles of
incorporation of the legal person who shall sign the Contract. Such legal person shall
have been incorporated in Peru with the same partners, shareholders or Members
and in the same participation percentages that they had as of the date of the Award,
with the minimum subscribed social capital defined in the aforementioned section.
page 55
As evidence of the minimum subscribed and paid-in capital, indicated in Section 6.2.1
, subsection 0) the Successful Bidder shall provide a simple copy of the certificate of
registration or certificate of recordal in the Public Registry of the notary records of the
public deed of incorporation of the legal person, which shall show a subscribed and
paid-in capital for the amount indicated above. For this requirement, the
Concessionaire shall provide the Grantor with the registration certificate, within 45
Days after the Closure Date.
ii)
Power of attorney of the individual who shall sign the contract on behalf of the
Concessionaire, with the certificate of registration of such document in the Registry
Office, according to Section 2.2.4.
• The Concessionaire shall provide copies of the documents that demonstrate that
its competent internal bodies have approved the Contract.
• The Concessionaire shall submit an insurance policy proposal and a list of
insurance companies that may provide the insurance, according to the provisions
of the Contract.
iii) Performance Bond, according to Section 13 of the Bidding Terms.
iv) Proof of deposit in the account indicated by PROINVERSIÓN, for reimbursement of
process expenses; the amount of the deposit shall be communicated in due time
through a circular letter.
v)
Proof of deposit in the account indicated by PROINVERSIÓN, for contributions to
FONCEPRI; the amount of the deposit shall be communicated in due time through a
circular letter.
vi) Four (4) copies of the Contract final version, in the printed pages that
PROINVERSIÓN shall provide the Concessionaire for this purpose.
vii) PROINVERSIÓN shall return to the Successful Bidder the guarantee mentioned in
Section 12
11.2.3.
Obligations of the Government
PROINVERSIÓN shall return to the Successful Bidder the Guarantee of Validity, Effect and
Integrity of the Proposal.
page 56
11.3.
Signing of the Contracts
On the closure date, the following contracts shall be signed:
i)
Signing of the Contract between the Grantor and the Concessionaire.
ii)
Signing of the Contract for Provision of Services between the Concessionaire and
SEDAPAL.
11.4.
Forfeiture of the Guarantee of Validity, Effect and Integrity of the Economic Proposal
11.4.1.
Non-fulfillment of obligations by the Bidder or the Successful Bidder
If the Bidder fails to fulfill any of its obligations by the Closure Date, which are described in
Section 11.2 of the Bidding Terms, due to causes attributable to the Bidder,
PROINVERSIÓN shall be entitled to forfeit the Guarantee of Validity, Effect and Integrity of
the Bidder's Proposal immediately, without the need of prior notice. The forfeiture of this
guarantee does not restrict any other rights that PROINVERSIÓN may have against the
Successful Bidder who failed to fulfill the obligations related to its proposal.
If the non-fulfillment by the Successful Bidder is confirmed, the Committee shall grant the
Award to the Shortlisted Bidder whose economic proposal took the second place,
according to the provisions in Section 10.1. In such case, the Committee shall inform of this
decision to the Shortlisted Bidder who submitted the second best proposal, as well as the
procedure of closure and the date, time and place when it shall take place.
11.4.2.
Legal actions in the event of non-fulfillment
Without prejudice to the provisions in the paragraph above, PROINVERSIÓN and/or the
Committee may initiate any legal actions allowed by the Applicable Laws that may be
directly or indirectly derived from the failure to comply by the original Successful Bidder, or
may be applicable against a Bidder who provided false information during any stage of the
PUBLIC BID.
11.4.3.
Effective Date of the Contract
The Contract shall enter into force, with full legal effect, on the Closure Date, after having
been signed by the legal representatives of the Grantor and the Concessionaire. For all
purposes, the Closure Date shall be the date on which the Contract is signed.
page 57
page 58
12. GUARANTEE OF VALIDITY, EFFECT AND INTEGRITY OF THE ECONOMIC PROPOSAL
12.1.
Provision of the Guarantee - Conditions
The Shortlisted bidder shall guarantee the validity, effect and integrity of the Economic
Proposal, and the fulfillment of the obligations to be performed by the Closure Date, through
the provision of a joint, irrevocable and unconditional bank guarantee letter, automatically
enforceable and without benefit of excussion, in favor of PROINVERSIÓN.
The Guarantee of Validity, Effect and Integrity of the Economic Proposal shall comply with
the following requirements:
•
It shall be provided in the form of a bank guarantee letter, according to the wording of the
sample attached hereto as Form No. 17. It shall be issued by a Banking Company. The
guarantee shall remain in force from the date of submission of the Economic Proposal
until sixty (60) calendar days after the Award.
•
For the Successful Bidder, the guarantee shall remain in force until the Closure Date or
be extended as many times as necessary for the period determined by the Committee.
•
Alternatively, the Committee may accept a guarantee letter or a stand-by letter, issued by
an International Financial Entity, which may include the formalities applied by the creditor
Bank, provided that: (i) it complies with the conditions established in the sample attached
hereto as Form No. 17, (ii) it is effective for the time period established in the paragraph
above, and (iii) it is endorsed by a Local or International Financial Entity, according to the
provisions in Appendixes No. 1 and No. 2., respectively.
•
12.2.
The guarantee amount shall be determined in due time through a Circular Letter.
Return or Forfeiture of the Guarantee of Validity, Effect and Integrity of the
Economic Proposal
The return of the Guarantee of Validity, Effect and Integrity of the Economic Proposal,
submitted by the Successful Bidder, shall be performed when the Successful Bidder
submits the Performance Bond.
The Guarantee of Validity, Effect and Integrity of the Economic Proposal submitted by a
Shortlisted Bidder that is not granted the Award shall be returned within fifteen (15) Days
after the approval of the Award.
page 59
If the Successful Bidder fails to fulfill any of its obligations by the Closure Date, which are
described in Section 11.2 of the Bidding Terms, due to causes attributable to the
Successful Bidder, PROINVERSIÓN shall be entitled to forfeit the Guarantee of Validity,
Effect and Integrity of the Successful Bidder's Economic Proposal immediately, without the
need of prior notice.
The forfeiture of this guarantee does not restrict any other rights that PROINVERSIÓN may
have against the Successful Bidder who failed to fulfill the obligations related to its
Proposal.
Without prejudice to the provisions in Section 6.3, PROINVERSIÓN and/or the Committee
may initiate any legal actions allowed by the Applicable Laws that may be directly or
indirectly derived from the failure to comply by the Successful Bidder.
page 60
13. PERFORMANCE BOND
13.1.
Conditions
Until the Closure Date, the Successful Bidder shall submit the Performance Bond that
guarantees the timely and proper compliance with all and each one of the obligations
derived from the Contract.
The time of submission, as well as the amounts and validity of the Performance Bond shall
be those established in the Contract.
13.2.
Form of Provision
The Performance Bond shall be composed by one or more bank guarantee letters, issued
by a Financial Entity, and shall be joint, irrevocable, unconditional, automatically
enforceable and without benefit of excussion. The guarantee letters shall be annually
renewed, to be kept in force, according to the provisions of the Section above and in the
Performance Bond sample attached hereto as Annex No. 4.
Alternatively, the Committee may accept a guarantee letter or stand-by letter, issued by an
International Financial Entity, which may include the formalities applied by the creditor Bank,
provided that: (i) it complies with the conditions established in the sample attached hereto as
Annex No. 4, (ii) it is effective for the time period established in the paragraph above, and (iii)
it is endorsed by a Financial Entity, according to the provisions in Appendixes No. 1 and No.
2.
page 61
14. FINAL PROVISIONS
14.1.
Applicable Laws
These Bidding Terms, the documents that are part thereof and the Contract shall be
regulated and construed according to the Applicable Laws and Provisions listed in Section
1.4.
14.2.
Jurisdiction and Competence
The Bidders, Shortlisted Bidder and Third Parties that are members of a Consortium, the
Successful Bidder and the Concessionaire hereby agree to subject themselves to and
accept the jurisdiction and competence of the judges and courts of the city of Lima, Peru,
to resolve any dispute that may arise among them with regard to these Bidding Terms. The
parties above hereby waive any rights to file a diplomatic claim, as well as to initiate actions
of any nature before any other venue or jurisdiction.
Any provision amending, modifying or limiting the rights of the Government, the Grantor,
SEDAPAL, PROINVERSIÓN or the Committee to initiate a legal action or execute a
sentence granted in Peru before the judges and courts in other jurisdictions shall be
applicable. The Bidders, Shortlisted Bidders and any Third Parties who are members of a
Consortium, the Successful Bidder and the Concessionaire hereby waive their rights to
invoke or exercise any immunity or privilege that they may have in these jurisdictions,
without reserves or limitations, and accept, and merely on the grounds of their participation
in the PUBLIC BID, the alternative jurisdiction or jurisdictions that the Government, the
Grantor, SEDAPAL, PROINVERSIÓN, and the Committee may eventually determine.
14.3.
Reimbursement of Process Costs
The Successful Bidder or the Concessionaire shall reimburse to PROINVERSIÓN, on the
Closure Date, an amount –including IGV– to be communicated through a Circular Letter,
for the expenses incurred in the preparation of the process.
14.4.
Destination and use of the resources effectively generated for the Government
If necessary, the distribution of the funds earned by the Government due to the Contract
shall be performed according to the third supplementary provision of the Decentralization
Law (Ley de Bases de la Descentralización).
page 62
Additionally, the FONCEPRI resources shall be determined according to the Supreme
Decree No. 021-98-PCM.
page 63
ANNEX No. 1: SCHEDULE
The dates of the project activities are the following:
Activity
Announcement and publication of Bidding Terms
Submission of First Contract Draft
First round of consultations on the Bidding Terms
Suggestions on the First Contract Draft
Answers to first round of consultations on the Bidding
Terms
Submission of Second Contract Draft
Second round of consultations on the Bidding Terms
Suggestions on the Second Contract Draft
Answers to second round of consultations on the
Bidding Terms
Day
D
D+90
Up to D+60
Up to D+120
D+105
D+135
Up to D+120
Up to D+155
D+180
D+180
Submission of Contract Final Version Draft
Contract Final Version
Submission of Envelope No. 1
Communication to Shortlisted Bidders
Confirmation or change of members of Consortia
Communication confirming the members or change
of members of Consortia
Access to the Specialized Information Center.
Proposals:
Submission of Envelope No. 2 and No. 3 (Technical
and Economic Proposals)
Announcement of results of the evaluation of
Technical Proposals
30 Days after receiving the comments of
SUNASS on the Contract Final Version
Draft
Up to 5 Days after the publication of the
Contract Final Version
Up to 2 Days after the deadline for
submission of Envelope No. 1
Up to 3 Days after the deadline for
submission of Envelope No. 1
Up to 4 Days after the deadline for
submission of Envelope No. 1
Up to 1 Day before the submission of
Envelopes No. 2 and No. 3
10 Days after the deadline for submission
of Envelope No. 1
15 Days after the date of submission of
Envelopes No. 2 and No. 3
15 Days after the date of submission of
Opening of Envelope No. 3 And Award
Closure Date
Envelopes No. 2 and No. 3
To be announced through a Circular Letter
The Committee shall be entitled to amend the dates in the Schedule at any moment; such
amendments shall be informed to the interested parties in a Circular Letter.
Unless otherwise specified, any term shall expire at 17:00 h on the deadline Day (Lima, Peru time).
page 64
ANNEX No. 2: NON-DISCLOSURE AGREEMENT
Lima, ............................, 201....
Sirs,
PROINVERSIÓN Committee for Infrastructure Projects and Public Social Services, Mining,
Sanitation, Irrigation and Agricultural Affairs – PRO DESARROLLO
Private Investment Promotion Agency - PROINVERSIÓN:
Bidder: .........................
........................................................................
(name
....................................................
(position
............................................................................................
...................,
No.
of
Bidder),
duly
represented
of
(name
..............................
of
by
signatory),
signatory),
identified
with
addressed
at
.............................................................................................................................., hereby express our
interest to be granted access to the Specialized Information Center, according to the Bidding Terms of
the PUBLIC BID for Integral Projects of the PROJECT “Provision of Sanitation Services for South Lima
Districts”.
In this regard, we hereby agree to maintain all the information obtained in the Specialized Information
Center under confidentiality, not to disclose any material or information to third parties without the prior
authorization of the Committee, not to use this information for any purpose that is not related to the
PUBLIC BID and not to use such information in any way that may be in conflict with the interest of the
Government, the Grantor, SEDAPAL, its officers or dependencies, PROINVERSIÓN and the
Committee.
The materials obtained in the Specialized Information Center shall be only made available to our
personnel, officers and consultants, due to reasons related to the PUBLIC BID. This personnel shall
become aware of the agreement and is also obligated to keep the information mentioned above under
confidentiality. We shall take all the reasonable measures to prevent the disclosure of any information
to any person without the prior approval of the Committee.
No licenses or rights have been or shall been granted to our advisors with regard to the disposal of
any information included in this agreement.
page 65
We agree that no part of the information provided, nor any material, discussion, negotiation or other
related matters, constitute an offer made by the Committee or in its name, and that they will not be
used as basis or taken into consideration with regard to any agreement, except if such use has been
expressly approved in writing by the Committee.
At the request of the Committee, we agree to return all the copies of all the documents that were made
available to us or to our representatives or advisors.
We also agree that the Committee does not agree to or is responsible for providing access to
additional information or for updating the information and the materials available or for correcting any
inconsistency that may be identified.
The agreement shall not be applied to the information that: (i) as of the date on which it was disclosed
to us or to our advisors was publicly known, or that becomes publicly known at any time after such
occasion (except due to breach of this agreement by us or our advisors) or (ii) is legally in our
possession to date and, therefore, is not subject to the non-disclosure agreement.
The rights and obligation established in this document shall be controlled and interpreted according to
the provisions of the Peruvian laws, and the parties agree to subject themselves to the jurisdiction and
competence of the judges and courts of Lima, Peru.
In witness whereof and in conformity with all the terms and conditions of this non-disclosure
agreement, we sign and submit this document to, on the ….... day of the month of.......................... of
….
Signature .....................................
Name ...................................................
Entity ................................. (Bidder)
page 66
ANNEX No. 3: REFERENCE TERMS
1.
BACKGROUND
The PUBLIC BID covers the urban areas of the districts to the extreme south of the Province of
Lima, Department of Lima, between kilometers 42 and 60 of the Panamericana Sur highway:
Punta Hermosa, Punta Negra, San Bartolo and Santa María del Mar.
Due to their coastal
location, sand beaches and relative distance to the city of Lima, these districts have become
summer resorts for the population of Lima during the summer months (January to March), which
is why the residing population, currently estimated in 24,000 inhabitants, may increase to more
than 40,000 people during the summer.
Historically, the drinking water and sewage services in Punta Hermosa, Punta Negra and San
Bartolo were provided by their respective district governments. Independently, Santa María del
Mar began its urban development as a private project, and the provision of water supply and
sewage services is under the management of the Landowners' Association of Santa María del
Mar (APSMM) since 1973.
In 2008 the water supply and sewage services for Punta Negra, Punta Hermosa and San Bartolo
were transferred to SEDAPAL2.
Until that time, these districts had a water supply system
composed by networks and connections supplied from brackish water wells, unfit for human
consumption, with low continuity and poor frequency. For this reason, the inhabitants would hire
and use water tankers to obtain drinking water. Only Punta Hermosa and San Bartolo had a
3
sewage system, and only Punta Hermosa had facilities for wastewater treatment by means of
stabilization ponds that were eventually discharged to the sea or used to irrigate green areas
without any type of control.
During 2008, SEDAPAL executed the project “Water Supply through Fountains for South
Summer Resorts - District of Lurín”, financed by SEDAPAL, the District Governments and the
Ministry of Housing, Construction and Sanitation, in order to replace the drinking water supply
system through water tankers that collected water from private fountains located 30 Km to the
north of the districts, in Lurín, with the controlled supply using water tankers and three (03)
fountains managed by SEDAPAL, in the districts of Punta Hermosa, Punta Negra and San
Bartolo, respectively. The works included 22.7 km laying of discharge pipeline from seven (07)
wells in the district of Lurín, to supply 3 fountains. The result was the implementation of a
provision water supply service of good quality, with controlled prices.
2
3
Watter Supply and Sewage Services of Lim a (SEDAPAL)
Houses in Punta Negra have in-situ sanitation facilities: cesspits, septic tanks and percolation wells.
page 67
In 2009, SEDAPAL executed the project “Installation of secondary drinking water networks and
tanks in Human Settlements in the Districts of Punta Hermosa, Punta Negra and San Bartolo”,
that covered the installation of 9.6 Km of secondary 4” y 6” PVC piping networks and 81 water
tanks4, in order to connect the existing networks to the drinking water pressure line and hold the
brackish water wells in reserve. This project would extend the water supply service by networks,
connections and water tanks to 5000 houses that before used water from brackish water wells
and water tankers. Under these conditions, the water supply service is provided 5 hours/day,
every other day during the summer months and 9 hours/day on a daily basis for the rest of the
year.
In 2010, SEDAPAL constructed two (02) Bach wastewater sludge treatment plants in the district
of San Bartolo: Balneario San Bartolo Sur and Balneario San Bartolo Norte, for a design flow rate
of 38.6 l/s and 20.5 l/s respectively, which covered the total amount of wastewater collected by
the sewage system in the district.
Additionally, the Landowners' Association of Santa María del Mar (APDSMM) provides water
supply services to 820 connections through four (04) reservoirs that are fed from a well located at
15 Km from the district, in the Chilca valley. Although it is currently possible to provide users with
24-hour water supply services during the entire year, due to indoor water storage measures, the
district does not have a water source able to cover for its future growth. The district has a
sewage system that collects and transports wastewater to an activated sludge treatment plant of
5
15 l/s . All the effluents from this plant are used for the irrigation of green areas in the district.
2.
OBJECTIVE, SCOPE AND FIELD OF THE PROJECT
The objective of the Project is the design, financing and building of the sanitation infrastructure
intended to enlarge and improve the water supply, sanitation system, wastewater treatment
and final disposal services under responsibility of SEDAPAL, in the districts of Punta
Hermosa, Punta Negra, San Bartolo and Santa María del Mar. It also includes the operation
and maintenance of collection infrastructure, Sea Water Desalination Plant, until the point of
delivery defined in the Contract for Provision of Services, the infrastructure for the final
disposal of the subproducts generated by this plant and the operation and maintenance of
infrastructure for wastewater deviation, Wastewater Treatment Plants and infrastructure for
the final disposal of the effluents and subproducts generated in this plant.
4
5
Public Fountains
A new 9 l/s plant is currently under construction.
page 68
3.
DESCRIPTION OF THE PROJECT
The description of the Project with the reference components and capacities is provided in Charts
No. 2 and No. 3, which are part of these reference terms. The obligations for the maintenance
and operation are the same as those indicated in Section 2 of this Annex.
4.
PROJECT BENEFITS
The main benefits expected are:
• Sustainable use of water resources to supply drinking water to the Project influence zone.
• Improvement of the management of water supply and sewage services in the summer resorts
to the south of Lima.
• Extension of the water supply and sewage coverage.
• Treatment and final disposal of wastewater, compliant with the environmental regulations in
force.
• Reduction of water-borne diseases.
5.
QUALITY OF THE SERVICES TO BE PROVIDED
The Concessionaire shall have the main obligation of complying, at least, with the quality and
quantity parameters established by SEDAPAL for both services during the period of the Project.
The Shortlisted Bidders shall be fully entitled to propose the most appropriate technical solutions,
provided that such solutions: (i) allow the Concessionaire to reach the Project parameters or goals
in an efficient way; (ii) are compliant with the regulations in force; (iii) comply with these Reference
Terms and with the applicable laws and provisions; (iv) allow the Project to be self-sustainable.
The Concessionaire shall prepare all the required studies (Technical file, Environmental Impact
Study, Evaluation of Archaeological remains, authorizations, etc.) that may be necessary to reach
the parameters or goals set for the PROJECT.
The water supply shall comply with the Maximum Allowable Limits established in the Regulation
on Quality of Water for Human Consumption, as approved by the S.D. 031-2010-SA.
The discharge of wastewater into a natural water body shall be regulated by the Maximum
Allowable Limits for effluents from Wastewater Treatment Plant, as approved by the S.D. N° 0232009-MINAM and the Environmental Quality Standards for Water (EQS-Water) in the receiving
body, as approved by S.D. N° 002-2008-MINAM, and it s Regulations for Implementation, as
approved by S.D. N° 023-2009-MINAM, as well as by a ny particular regulations issued by the
National Water Authority. In case of re-usage, the WHO guides shall be applied, as provided in
page 69
Article 150 of the Regulations to the Law of Water Resources, Law No. 29338, as approved by
S.D. No. 001-2010-AG.
If, during the operation stage, the applicable regulations are amended, the Concessionaire shall
comply with all the new applicable requirements. This may involve the application of the
compensation mechanisms described in the Contract.
6.
AREAS AND GOODS FOR THE PROJECT
The project area of influence is shown in Figures No. 1, No. 2, No. 3 and No. 4, attached to these
reference terms.
The Grantor shall provide the Concessionaire with the plots of land and goods associated to the
Project components, which shall be established in a Circular Letter.
The proposals shall be in line with the availability of land, as provided in the paragraph above.
The project goods shall include those to be provided by the Grantor and the works to be used,
constructed and/or operated by the Concessionaire, according to the Contract.
7.
AUTHORIZATIONS, PERMITS AND EASEMENTS
The Concessionaire shall obtain, at its own expense, any authorizations, permits, licenses,
easements and other similar rights that may be necessary to fulfill its contractual obligations.
8.
TECHNICAL FILES
The Concessionaire shall prepare the technical files that may be necessary for the
implementation of the PROJECT. The contents of the technical files shall include the provisions
issued by SEDAPAL, through the Quality Management System ISO 9001.
9.
ESTIMATED INVESTMENT, OPERATION AND MAINTENANCE COSTS
The estimated value of the investment is US$ 110 million, including IGV.
The estimated value for operation and maintenance shall be communicated through a circular
letter.
10. SUPERVISION OF THE CONTRACT
The Grantor shall monitor the fulfillment of the Contract obligations.
page 70
11. REFERENCES TO EXISTING STUDIES ON THE CONTRACT WORKS
The Specialized Information Center shall be used to provide basic and descriptive information on
the Project, which is included in the Contract scheme and in these Reference Terms.
Each Shortlisted Bidder shall prepare a Technical Proposal, derived from its own evaluation and
experience, which shall comply with the specifications established in these Reference Terms.
The information in the Specialized Information Center shall not be considered as a
recommendation, promise or statement about future facts made by SEDAPAL, PROINVERSIÓN,
the Committee or by any entity related to them. SEDAPAL, PROINVERSIÓN, the Committee, or
any of the entities related to them shall not accept any obligation or liability for the accuracy or
reliability of the information, nor do they accept to make an explicit or implicit statement or
contractual specification about such information.
page 71
page 72
page 73
page 74
MAP No. 1
page 75
page 76
MAP No. 2
page 77
MAP No. 3
page 78
MAP No. 4 DISTRICT OF SANTA MARIA DEL MAR
page 79
page 80
ANNEX No. 4 SAMPLE OF PERFORMANCE BOND
Lima, ............................, 20....
Sirs,
MINISTRY OF HOUSING, CONSTRUCTION AND SANITATION
Re.:
Guarantee Bank Account No. …………..
Expiration date:......................
Contract for the PROJECT “Provision of Sanitation Services for South Lima Districts”
Dear Sirs,
Upon request of our clients, ……………………. (name of the legal person) (hereinafter, the
“Concessionaire”) we hereby provide this joint, irrevocable and unconditional bank guarantee letter,
automatically enforceable and without benefit of excussion, for an amount of up to ………………..
(…………… ………….and 00/100 United States Dollars) in favor of the Ministry of Housing,
Construction and Sanitation, to guarantee the timely and correct fulfillment of all and each one of the
obligations assumed by the Concessionaire that are derived from the execution of the Contract for the
PROJECT “Provision of Sanitation Services for South Lima Districts”, hereinafter, the “Contract”.
The payment of this performance bond shall be automatically enforceable and without need of any
action on your part, upon the receipt of a written request issued by the Ministry of Housing,
Construction and Sanitation, which shall be signed by the Deputy Minister of Housing and Sanitation
or by any other officer duly authorized by this institution. The request shall state that our clients,
………………………………… (name of Concessionaire) have not fulfilled one or more of the
obligations guaranteed by this document. The request shall be delivered through a Notary's office.
page 81
This performance bond shall also guarantee the timely and correct fulfillment of obligations by the
Concessionaire, which are derived from the provisions included in the Applicable Laws and
Provisions.
Our obligations under this performance bond shall not be affected by any dispute between the Ministry
of Housing, Construction and Sanitation, SEDAPAL, or any entity of the Government of Peru and our
clients.
The guarantee letter may be renewed for consecutive annual periods, to remain in force from the
Closure Date to two (2) years after the end of the Contract.
Any delay on our part to honor this agreement shall generate interest equal to the maximum LIBOR
rate at one year, plus a spread of 3%. The LIBOR rate shall be the one established by the daily
Reuters Cable that is received in the city of Lima at 11:00 a.m. of the date on which the request for
payment through a Notary's office; the interest shall be calculated from the date on which the
execution of this guarantee letter is requested until the payment date.
This guarantee letter shall be effective from ......................, 20...., through ......................, 20.......
Sincerely,
Signature
………………………..
Name
……………………….
Banking Entity ……………………….
page 82
page 83
APPENDIX No. 1:
LOCAL BANKS AUTHORIZED TO ISSUE THE GUARANTEES ESTABLISHED IN THE
BIDDING TERMS
The Private Investment Promotion Agency (PROINVERSIÓN) shall accept guarantee letters or
reference letters from the Local Banks listed below:
LOCAL BANKS
BBVA BANCO CONTINENTAL
BANCO DE CRÉDITO DEL PERÚ
BANCO INTERAMERICANO DE FINANZAS – BIF
BANCO INTERNACIONAL DEL PERÚ P.A.– INTERBANK
CITIBANK, N.A., LIMA OFFICE
BANCO SCOTIABANK
BANCO FINANCIERO DEL PERÚ
BANCO HSBC
BANCO SANTANDER PERÚ S.A
DEUTSCHE BANK PERU S.A.
MIBANCO – BANCO DE LA MICROEMPRESA S.A.
page 84
page 85
APPENDIX No. 2
LIST OF INTERNATIONAL FINANCIAL ENTITIES AUTHORIZED TO ISSUE THE
GUARANTEES ESTABLISHED IN THE BIDDING TERMS
1.
International Financial Entities and Multinational Organizations
The foreign first-class banks included in the list approved by the Central Reserve Bank of Peru by
the Circular Letter N° 023-2012-BCRP, dated August 1, 2012, and by any replacing regulations,
shall be considered for this purpose. The branches and/or subsidiary companies of the foreign
banks above shall also be considered.
2.
Any multilateral credit entity that has the Government of the Republic of Peru as a member.
3.
Any other international financial entity with a risk rating that is not below the investment grade (in
the long term) and has been evaluated by a prestigious entity recognized by the Superintendency
of the Stock Market.
page 86
page 87
FORM No. 1: SAMPLE OF LETTER OF SUBMISSION OF ECONOMIC PROPOSAL - ENVELOPE
No. 3
(To be provided in due time through a Circular Letter)
page 88
page 89
FORM No. 2: AFFIDAVIT ON RELIABLE INFORMATION
We hereby state under oath that:
All the information that we have provided on the submitted documents is true and reliable.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................ (Bidder)
Name
………………………. (Bidder's Legal Representative)
Signature
……………………….. (Bidder's Legal Representative)
page 90
page 91
FORM No. 3: GENERAL SHORT-LISTING REQUIREMENTS
AFFIDAVIT
We hereby declare under oath that
……………….… (the Bidder or at least one of the Consortium Members) have had a participation of
at least 25% in at least one (1) public-private partnership for the development and/or operation and
maintenance of public sanitation infrastructure, as detailed below:
Bidder / Consortium Member
Project
Percentage (%) of
Participation
Place and date: …..........., ….....….................., 20…
Entity: ..........................................................
Bidder
Name: ...........................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 92
page 93
FORM No. 4: SHORT-LISTING TECHNICAL REQUIREMENTS – OPERATION
AFFIDAVIT
We hereby declare under oath that the Bidder, the company or group of companies that are members
of the bidder, or the company, to be contracted to act as Operator have acquired experience during
the last fifteen (15) years in the operation of the water treatment plants (wastewater treatment plants)
mentioned below:
A. Name of Operator (a/): ………………………………………….
(In the case of companies that are members of the Bidder, the information shall be provided
individually)
Component specifications
Name and
location
Type and
Technology
Capacity
3
(m /s)
Period of Operation (d/)
Age (in
years)
From
To
(month –
year)
(month –
year)
Participation
(%)
(b/)
1
2
3
4
5
TOTAL
Notes:
(a/) If the information refers to a Related Company, Section B shall be completed.
(b/) Please attach documents that demonstrate the percentage of participation (Contract, Certifications or
other equivalent documents in the country where the PROJECT was executed).
(c/ and d/) Please attach a Certificate or an equivalent document, issued by the client in the country where
the component is located, that states that such component has been operative or is operating and includes a
description of the technical specifications of the plant or plants.
(e/) In the case of wastewater treatment plants, at least two (2) of the plants shall be biological and apply
secondary treatment.
B. Explanation of the connection between the Operator and the Related Company.
____________________________________________________________________________
____________________________________________________________________________
_______________________________________________________
(If the information of a shareholder or member refers to another legal person, describe the
relationship what causes the company to be a Subsidiary Company or Parent Company of the
Bidder, or a shareholder or member of the Bidder.
page 94
Place and date: …..........., ….....….................., 20…
Entity: ..........................................................
Operator
Name: ...........................................................
Operator's Legal Representative
Signature
………………………..
Operator's Legal Representative
Entity: ..........................................................
Bidder
Name: ...........................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 95
page 96
FORM No. 5: COMMITMENT TO HIRE THE OPERATOR
AFFIDAVIT
We hereby state under oath that:
We have signed a commitment to hire ................................ (operator that demonstrated its experience
in plant operation, hereinafter, the Operator), by which we, in the event of being granted the Award
according to the provisions in the Bidding Terms, commit ourselves to enter, through the
Concessionaire and in the time established in the Contract, into a contract for operation, which shall
include at least the terms provided in Form No. 20 attached to the Bidding Terms.
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
Entity
…........................................................
Legal Representative of (Member 1)
Name
……………………….
Legal Representative of (Member 1)
Signature
………………………..
page 97
Legal Representative of (Member 1)
Entity
…........................................................
Legal Representative of (Member 2)
Name
……………………….
Legal Representative of (Member 2)
Signature
………………………..
Legal Representative of (Member 2)
Entity
…........................................................
Legal Representative of (Member n)
Name
……………………….
Legal Representative of (Member n)
Signature
………………………..
Legal Representative of (Member n)
Entity
…........................................................
Operator
Name
……………………….
Operator's Legal Representative
Signature
………………………..
Operator's Legal Representative
page 98
page 99
FORM No. 6: SHORT-LISTING TECHNICAL REQUIREMENTS - CONSTRUCTION
AFFIDAVIT
We hereby declare under oath that the Bidder, the company or group of companies that are members
of the Bidder, or the company, to be contracted to act as Constructor, have acquired experience
during the last fifteen (15) years in the construction of the water treatment plants (wastewater
treatment plants), as detailed below:
A)
Name of Constructor (a/): ………………………………………….
(In the case of companies that are members of the Bidder, the information shall be provided
individually)
Period of Construction
(d/)
Component specifications
Name and
location
Type and
Technology
Capacity
3
(m /s)
Age (in
years)
From
To
(month –
year)
(month –
year)
Participation
(%)
(b/)
1
2
3
4
5
TOTAL
Notes:
(a/) If the information refers to a Related Company, Section B shall be completed.
(b/) Please attach documents that demonstrate the percentage of participation (Contract, Certifications or other
equivalent documents in the country where the PROJECT was executed).
(c/ and d/) Please attach the Certificate of Acceptance of the Works or an equivalent document in the country
where the PROJECT was executed, issued by the Client, which includes the technical specifications of the water
treatment plant(s) (wastewater treatment plant(s)).
B)
Explanation of the connection between the Constructor and the Related Company.
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
________________________
(If the information of a shareholder or member refers to another legal person, describe the
relationship what causes the company to be a Subsidiary Company or Parent Company of the
Bidder, or a shareholder or member of the Bidder.
page 100
Place and date: …..........., ….....….................., 20…
Entity: ..........................................................
Constructor
Name: ...........................................................
Constructor's Legal Representative
Signature
………………………..
Constructor's Legal Representative
Entity: ..........................................................
Bidder
Name: ...........................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 101
page 102
FORM No. 7: COMMITMENT TO HIRE THE CONSTRUCTOR
AFFIDAVIT
We hereby state under oath that:
We have signed a commitment to hire ................................ (constructor that demonstrated its
experience in construction, hereinafter, the Constructor), by which we, in the event of being granted
the Award according to the provisions in the Bidding Terms, commit ourselves to enter, through the
Concessionaire and in the time established in the Contract, into a contract for construction by which
the Constructor becomes jointly responsible with the Concessionaire for the execution of the works for
up to two (2) years counted from the delivery of the Certificate of Beginning of works, which shall
include at least the terms provided in Form No. 21 attached to the Bidding Terms.
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
Entity
…........................................................
Legal Representative of (Member 1)
Name
……………………….
Legal Representative of (Member 1)
page 103
Signature
………………………..
Legal Representative of (Member 1)
Entity
…........................................................
Legal Representative of (Member 2)
Name
……………………….
Legal Representative of (Member 2)
Signature
………………………..
Legal Representative of (Member 2)
Entity
…........................................................
Legal Representative of (Member n)
Name
……………………….
Legal Representative of (Member n)
Signature
………………………..
Legal Representative of (Member n)
Entity
…........................................................
Constructor
Name
……………………….
Constructor's Legal Representative
Signature
………………………..
Constructor's Legal Representative
page 104
page 105
FORM No. 8: CREDENTIALS FOR SHORT-LISTING (INCORPORATED LEGAL PERSON)
AFFIDAVIT
We hereby state under oath that ..(Bidder's name) s a legal person duly created under the laws of
................................., which remains in force in accordance with the legal principles applicable in the
country of origin.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................
Bidder
Name ...........................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 106
page 107
FORM No. 9: CREDENTIALS FOR SHORT-LISTING OF A CONSORTIUM
AFFIDAVIT
We hereby state under oath:
That ........................... (name of each one of the Members of the Consortium) have associated in a
Consortium with the purpose of participating in the PUBLIC BID for Integral Projects for the PROJECT
“Provision of Sanitation Services for South Lima Districts”
That ........................... (name of each one of the Members of the Consortium) are companies
incorporated in accordance with the laws of their countries of origin, and currently existing.
That ....................... shall act as Operator of the services, fulfilling the requirements established in
these Bidding Terms.
That ....................... shall act as Constructor of the Works, fulfilling the requirements established in
these Bidding Terms.
That ........................... (name of each one of the Members of the Consortium) are jointly and indivisibly
liable to the Government of the Republic of Peru, PROINVERSIÓN and to the Committee for all and
each one of the obligations assumed and sworn statements submitted by the Bidder with regard to this
Public Bid.
Place and date: ........
Entity
…..........., ….....….................., 20…
…........................................................
Bidder
Name ............................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
Entity
…........................................................
Legal Representative of (Member 1)
Name .................................................
Legal Representative of (Member 1)
Signature
………………………..
Legal Representative of (Member 1)
Entity
…........................................................
page 108
Legal Representative of (Member 2)
Name
……………………….
Legal Representative of (Member 2)
Signature
………………………..
Legal Representative of (Member 2)
Entity
…........................................................
Legal Representative (Operator)
Name
……………………….
Legal Representative (Operator)
Signature
………………………..
Legal Representative (Operator)
Entity
…........................................................
Legal Representative (Constructor)
Name
……………………….
Legal Representative (Constructor)
Signature
………………………..
Legal Representative (Constructor)
page 109
page 110
FORM No. 10: CREDENTIALS FOR SHORT-LISTING - PARTICIPATION
AFFIDAVIT
We hereby declare under oath that the shareholding percentage of each one of our stockholders or
partners or Members is as follows:
Shareholder or partner
Percentage of participation in the Bidder
(only participations above 5%)
1.
2.
3.
4.
5.
6.
TOTAL
For Bidders who are Consortia:
Members
Percentage of participation in the Bidder
1.
2.
3
4
5.
6.
TOTAL
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Shortlisted Bidder:
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 111
page 112
FORM No. 11: CREDENTIALS FOR SHORT-LISTING. NO IMPEDIMENTS
AFFIDAVIT
We hereby declare under oath that [............................................. (Bidder's name)], [members of the
Consortium)]:
1.
Is
(are)
not
subject
to
administrative
sanctions involving a temporary or permanent impediment to participating in selection
processes called for by Government entities, nor to entering into an agreement with the
Government of the Republic of Peru.
2.
Its (their) status of concessionaire has not ever been revoked due to breach of a concession
agreement entered into with the Government of the Republic of Peru under the framework of
Legislative Decree No. 1012 or a private investment promotion process, as defined in the
Consolidated Text of the Concessions Law, as approved by Supreme Decree N° 059-96-PCM,
or the Law N° 28059, Decentralized Investment Promo tion Law.
Place and date: ........
Entity
…..........., ….....….................., 20…
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 113
page 114
FORM No. 12: CREDENTIALS FOR SHORT-LISTING - WAIVER OF PRIVILEGES
AFFIDAVIT
We hereby declare under oath that (Bidder's name), as well as its shareholders, partners or members,
or the latter's shareholders or partners, if applicable, waive the following rights:
1.
To invoke and use any privilege or immunity, diplomatic or of any other type.
2.
To file any complaint by diplomatic means, and to any compensation rights or other rights
related to any claim that may be filed by or against the Government, the Grantor, SEDAPAL,
PROINVERSIÓN, the Committee, its members and Advisors, under the laws of Peru or under
any other laws with regard to the Bidding Terms, the Economic Proposal, the Technical
Proposal and the Contract.
Place and date: .......
Entity
…..........., ….....….................., 20…
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 115
page 116
FORM No. 13: CREDENTIALS FOR SHORT-LISTING - NO CONFLICTS OF INTEREST
AFFIDAVIT
We hereby declare under oath that our legal and technical advisors have not directly provided any
type of services in favor of the Grantor, SEDAPAL, PROINVERSIÓN or the Committee during the
course of this process, whether on a full-time, part-time or temporary basis, that are related to Private
Investment Promotion Process referred to.
Place and date: ........
Entity
…..........., ….....….................., 20…
…........................................................
Bidder
Name ...........................................................
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 117
page 118
FORM No. 14: REQUIREMENTS FOR SHORT-LISTING - PARTICIPATION IN A SINGLE BIDDER
AFFIDAVIT
We hereby declare under oath that (Bidder's name), as well as its shareholders, partners or members,
or the latter's shareholders or partners, if applicable, have any direct or indirect participation in any
other Bidder or Shortlisted Bidder.
(For companies listed on stock exchanges)
We hereby declare under oath that ............................................. (Bidder's name), its shareholders,
partners or Members, if applicable, have no direct or indirect participation in any other Bidder or
Shortlisted Bidder in which they have control of the management or of any of its members –in case of
a Consortium– according to the provisions in the Regulations on Indirect Ownership, Relationship and
Economic Groups, as approved by Resolution CONASEV No. 090-2005-EF/94.10 and amended by
Resolution CONASEV No. 005-2006-EF/94.10 or by any other amending or substituting regulations.
Place and date: .......
Entity
…..........., ….....….................., 201…
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 119
page 120
FORM No. 15: COMMITMENT TO INCORPORATION
AFFIDAVIT
We hereby state under oath:
(For a Consortium):
•
That ........................... (name of each one of the Members of the Consortium), have
associated in a consortium for the purpose of participating in this Public Bid.
•
That we, ........................................., (the entities mentioned in the paragraph above) have
signed a commitment to incorporate a legal person with address in the Republic of Peru, and
a social capital according to the provisions in the Bidding Terms and in the Contract.
(For simple companies):
•
That we, ........................................., commit hereby to incorporate a legal person with address
in the Republic of Peru, and a social capital according to the provisions in the Bidding Terms
and in the Contract.
(The following paragraphs are valid for both cases):
•
The incorporated legal person shall sign the Contract.
•
That, if we are granted the Award, we hereby agree to provide the public deed of incorporation
of the Special Purpose Company, along with the certificate of its registration in the
corresponding Registry Office, by the Closure Date established in the Schedule of the Bidding
Terms.
•
In this regard, we declare that we are aware of and agree that a failure to fulfill this obligation
may be taken into consideration for a possible decision to leave the Award granted in our
favor without effect.
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Bidder
page 121
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
Signature of the Members (in case of a Consortium):
Entity
…........................................................
Legal Representative of (Member 1)
Name
……………………….
Legal Representative of (Member 1)
Signature
………………………..
Legal Representative of (Member 1)
Entity
…........................................................
Legal Representative of (Member 2)
Name
……………………….
Legal Representative of (Member 2)
Signature
………………………..
Legal Representative of (Member 2)
Entity
…........................................................
Legal Representative of (Member 3)
Name
……………………….
Legal Representative of (Member 3)
Signature
………………………..
Legal Representative of (Member 3)
page 122
page 123
FORM No. 16: FINANCIAL REQUIREMENTS
SAMPLE LETTER FOR SUBMISSION OF SHORT-LISTING
FINANCIAL INFORMATION
AFFIDAVIT
Lima, ............................, 20....
Sirs,
PROINVERSIÓN Committee for Infrastructure Projects and Public Social Services, Mining,
Sanitation, Irrigation and Agricultural Affairs – PRO DESARROLLO
Private Investment Promotion Agency - PROINVERSIÓN:
Bidder
:
......................................... .....................................
Re.: Public Bid for integral projects - Project “Provision of Sanitation services for South Lima
Districts”
According to the provisions in the Bidding Terms of the Public Bid, we hereby provide evidence of the
financial requirements for short-listing in the Public Bid referred to above.
A.
Bidder's Net Equity
NET EQUITY
US$ [
]*
(*) The total amount written in this table shall be the same as in Table B.
B.
Net Equity and percentage of participation in the Bidder of the bidder's shareholders or
Members
Shareholder, Related
Company or Member
Note 1
Net Equity in US$ (Note
2)
Participation %
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TOTAL
100%
(Copy in Section A)
Note 1: Mark with an “X” if the Net Equity amount belongs to a Related Company and fill in Section
D.
Note 2: For equity owned by Shareholders, Related Companies or Members in a currency other than
US$, use Table C.
C.
Conversion of values expressed in a currency other than then US Dollars, if required.
Bidder, shareholder, Member
Value
or Related Company
(Original Currency)
Exchange Rate
Amount
Information
(US$)
source
Note: The applicable exchange rate shall be:
a) Exchange rate determined by the Superintendency of Banking and Insurances, as of the
closing date of the Financial Statements.
b) Exchange rate published by Bloomberg or Reuters as of the closing date of the Financial
Statements, only if the currency used in the foreign Bidder's Financial Statements (other
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than US Dollar) is not included in the list of the Superintendency of Banking and
Insurances.
D.
Explanation of the relationship between the Bidder, the Bidder's shareholder or
member, and its respective Related Company.
If the amount of the Bidder, shareholder or member corresponds to another person, describe
the relationship that makes that the company is a Related Company of the Bidder, or a
shareholder or member of the Bidder.
___________________________________________________________________________
___________________________________________________________________________
_________________________________________________________
Sincerely,
Signature
………………………..
Name
……………………….
Bidder's Legal Representative
Entity
…........................................................
Bidder
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FORM No. 17: SAMPLE OF GUARANTEE LETTER OF VALIDITY, EFFECT AND SERIOUSNESS
OF THE ECONOMIC PROPOSAL
Lima, ............................, 20....
Sirs,
Private Investment Promotion Agency - PROINVERSIÓN:
Re.:
Bank Guarantee Letter No. ..............................
Expiration date: .................................
Dear Sirs,
At the request of our clients, ..............................................., we hereby provide this joint, irrevocable,
unconditional and automatically enforceable guarantee, without the benefit of excussion, for an
amount of up to ........................... United States Dollars (US$ …………) in favor of PROINVERSIÓN,
to guarantee the validity, Effect and Integrity of the Economic Proposal provided by our client under
the terms and conditions established in the Bidding Terms of the PUBLIC BID for Integral Projects of
the Project “Provision of Sanitation Services for South Lima Districts”.
In addition, we hereby state that this guarantee shall be made effective if our client is declared
Successful Bidder by the Committee and fails to comply with its obligations at the End Date of the
PUBLIC BID mentioned above.
The payment shall be made upon request from the Executive Director of PROINVERSIÓN, or an
equivalent officer, delivered through a Notary's office. Any delay by us in this respect shall accrue an
interest equal to the maximum LIBOR rate at one year, plus a spread of 3%.
The LIBOR rate shall be the one established by the daily Reuters Cable that is received in the city of
Lima at 11:00 a.m. of the date on which the request for payment through a Notary's office; the interest
shall be calculated from the date on which the execution of this guarantee letter is requested until the
payment date.
Our obligations under this guarantee letter shall not be affected by any dispute between you and our
clients.
This guarantee shall be effective from …….. (date of submission of the Economic Proposal) to
..........................., ........
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The terms established in this guarantee letter have the same meaning as the terms defined in the
BIDDING TERMS.
Sincerely,
Signature
Name
………………………..
...................................................
Banking Entity ……………………….
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FORM No. 18: VALIDITY OF THE INFORMATION - ENVELOPE No. 2
AFFIDAVIT
We hereby declare under oath that the information, statements, certification and, in general, all the
documents provided by (Bidder's name) are valid and in force to date and shall remain in force for up
to sixty (60) days after the Award.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
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FORM No. 19: SAMPLE OF GUARANTEE OF CHALLENGE TO THE AWARD
Lima, ...........................................
Sirs,
Private Investment Promotion Agency - PROINVERSIÓN:
.Re.:
Public Bid for integral projects - Project “Provision of Sanitation Services for South Lima
Districts”
Bank Guarantee Letter No. ..............................
Expiration date: ....................................
Dear Sirs,
At the request of our clients, ..............................................., we hereby provide this joint, irrevocable,
unconditional and automatically enforceable guarantee, without the benefit of excussion, for an
amount of up to ........................... and 00/100 United States Dollars (US$ ..............) in favor of
PROINVERSIÓN, which is guaranteed the payment of this amount in any of the scenarios described
in paragraph four of this guarantee letter.
The guarantee shall remain in force from the date of submission of the Economic Proposal until sixty
(60) calendar days after the Award of the PUBLIC BID, and shall be forfeited if the challenge is
dismissed or deemed groundless by the Governing Council of PROINVERSIÓN, or if a resolution by
the Committee with such a decision has been issued and not appealed.
It is expressly understood by us that this guarantee may be forfeited by PROINVERSIÓN in
accordance with Article No. 1898 of the Civil Code of Peru.
We hereby agree that a simple letter of request delivered by notarial means in our office (address
below) will be sufficient for us to proceed with the payment established in this guarantee letter. The
letter of request should indicate that the challenge lodged has been dismissed or not admitted by the
Directive Council of PROINVERSIÓN; or that a resolution by the Committee with such a decision has
been issued and not appealed.
We agree to make the payment of the entire guarantee within a period of no more than 24 hours after
the date of reception of the corresponding letter of request, certified by Notary Public.
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Any delay on our part to honor this agreement will generate the payment of compensatory interest in
your favor, which will be calculated based on the maximum LIBOR rate at one year, plus a spread of
3%.
The LIBOR rate shall be the one established by the daily Reuters Cable that is received in the city of
Lima at 11:00 a.m. of the date on which the request for payment through a Notary's office; the interest
shall be calculated from the date on which the payment for the guarantee is requested.
Sincerely,
_______________
SIGNATURE AND STAMP
Name of the bank issuing the guarantee:
Address of the Bank:
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FORM No. 20: AFFIDAVIT ON THE OPERATION CONTRACT
In respect of the operation contract, the Concessionaire and the Operator hereby declare under oath
that such contract states the following:
1. Organization and Powers of Attorney
The Operator is a company or trade entity duly incorporated, existing and registered in the
corresponding trade registry, according to the laws of the jurisdiction in which it was incorporated
or organized, and able to sign the operation contract and fulfill the obligations established therein.
2. Capacity
The Operator is duly qualified and competent to perform any business, daily operations and any
other operations that may be described in the operation contract.
3. Authorization
The Operator has full capacity and representation to sign and perform the operation contract. The
signing and performance of the operation contract has been duly authorized in accordance with
the Operator's internal rules or company regulations, through any social action that may be
necessary. None of the actions required for this purpose has been amended or canceled, and they
have full effect.
4. No Disputes
The signing, delivery and fulfillment of the operation contract by the Operator and the performance
of actions described in it do not infringe any provision in the Applicable Laws and Provisions, nor
any company agreement, fiduciary agreement, or provision in the Operator's bylaws.
5. Joint liability
The Operator is jointly responsible with the Concessionaire for the Operation and Maintenance of
the Works, from the beginning of the operation until two (2) years after the end of the Contract
period.
In this regard, we hereby state that we are aware of and accept the consequences of failing to comply
with this commitment and/or of the lack of accuracy of the statements provided above.
Place and date: …..........., ….....….................., 20…
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Entity
…........................................................
Operator
Name
……………………….
Operator's Legal Representative
Signature
………………………..
Operator's Legal Representative
Entity
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 136
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FORM No. 21: AFFIDAVIT ON THE CONSTRUCTION CONTRACT
In respect of the construction contract, the Concessionaire and the Constructor hereby declare under
oath that such contract states the following:
1. Organization and Powers of Attorney
The Constructor is a company or trade entity duly incorporated, existing and registered in the
corresponding trade registry, according to the laws of the jurisdiction in which it was incorporated
or organized, and able to sign the construction contract and fulfill the obligations established
therein.
2. Capacity
The Constructor is duly qualified and competent to perform any business, daily operations and any
other operations that may be described in the construction contract.
3. Authorization
The Constructor has full capacity and representation to sign and perform the construction contract.
The signing and performance of the construction contract has been duly authorized in accordance
with the Operator's internal rules or company regulations, through any social action that may be
necessary. None of the actions required for this purpose has been amended or canceled, and they
have full effect.
4. No Disputes
The signing, delivery and fulfillment of the construction contract by the Constructor and the
performance of actions described in it do not infringe any provision in the Applicable Laws and
Provisions, nor any company agreement, fiduciary agreement, or provision in the Constructor's
bylaws.
5. Joint liability
The Constructor hereby becomes jointly responsible with the Concessionaire for the execution of
the Works, until two (2) years after the delivery of the certificate of Commissioning, according to
the provisions in the Contract.
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In this regard, we hereby state that we are aware of and accept the consequences of failing to comply
with this commitment and/or of the lack of accuracy of the statements provided above.
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Constructor
Name
……………………….
Constructor's Legal Representative
Signature
………………………..
Constructor's Legal Representative
Entity
…........................................................
Bidder
Name
……………………….
Bidder's Legal Representative
Signature
………………………..
Bidder's Legal Representative
page 139
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FORM No. 22: VALIDITY OF INFORMATION FOR INCORPORATION TO THE SHORTLISTED
BIDDER
AFFIDAVIT
We hereby declare under oath that the information, statements and, in general, all the documents
submitted in Envelope No. 1 by the Shortlisted Bidder ……………………….. (name of the Shortlisted
Bidder) extends to the new Member of the Consortium ……………………. (name of the new Member).
This information remains valid to date and shall remain valid for up to sixty (60) calendar days after the
Award.
Place and date: …..........., ….....….................., 20…
Entity
…........................................................
Shortlisted Bidder:
Name
……………………….
Shortlisted Bidder's Legal Representative
Signature
………………………..
Shortlisted Bidder's Legal Representative
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FORM No. 23: VALIDITY OF INFORMATION FOR INCORPORATION OF A NEW COMPANY TO
BE HIRED
AFFIDAVIT
We hereby state under oath that:
The information, statements and, in general, all the documents submitted in Envelope No. 1 by the
Shortlisted Bidder ……………………….. (name of the Shortlisted Bidder) extends to the new
operator/constructor to be hired, ……………………. (name of the company). This information remains
valid to date and shall remain valid for up to sixty (60) calendar days after the Award.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................
Shortlisted Bidder:
Name
……………………….
Shortlisted Bidder's Legal Representative
Signature
………………………..
Shortlisted Bidder's Legal Representative
page 143
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FORM No. 24: SIMPLIFICATION MECHANISM FOR SUBMITTING INFORMATION
AFFIDAVIT
We hereby state under oath that:
The documents submitted in ________________________________(name of the process in which
the Bidder participates)*, in order to _______________________ (Bidder's name) to be shortlisted, is,
as of the date of the signing of this document, in full force and effect, without any variations.
The documents referred to above are the following:
1. (document list)
2.
3.
…
Place and date: …..........., ….....….................., 201…
Entity
…........................................................
Shortlisted Bidder:
Name
……………………….
Shortlisted Bidder's Legal Representative
Signature
………………………..
Shortlisted Bidder's Legal Representative
Note (*): Name the process in charge of PROINVERSION during the two years (2) before the date of
submission of the documents for short-listing in this Public Bid.
page 145
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FORM No. 25: SWORN STATEMENT OF RELATIONSHIP WITH THE PERSON WHO PAID THE
PARTICIPATION FEES IN THE SHORT-LISTING STAGE
We hereby state under oath that:
_______________________________ (Bidder's name), acquired the Rights to Participation
through ________________________________ (name of the legal person who made the
payment), who is ___________________________________________ (write: one of our
shareholders or partners or members, or a Company Related to us or to one of our shareholders or
partners or members, or a person who transferred its rights to participate during the Short-listing
Stage, by an assignment of rights, as applicable).
Place and date: …..........., ….....….................., 201…
Entity
…........................................................ (Bidder)
Name
………………………. (Bidder's Legal Representative)
Signature
……………………….. (Bidder's Legal Representative)
If there is an assignment of the Rights to Participate, the assignor must also sign this affidavit:
Entity
…........................................................ (Assignor)
Name
………………………. (Assignor's Legal Representative)
Signature
……………………….. (Assignor's Legal Representative)
(NOTE: PLEASE ATTACH A SIMPLE COPY OF THE PROOF OF PAYMENT OF RIGHTS TO
PARTICIPATION)
page 147
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FORM No. 26: SWORN STATEMENT OF ACCEPTANCE OF THE BIDDING TERMS AND THE
CONTRACT
(Ref.: Section 8.1.1.2 of the Bidding Terms)
We,
.............................................................................. (name of the Shortlisted Bidder), its
shareholders, partners or members, and their respective shareholders and partners, hereby
declare under oath that:
1. We know and shall abide with all the provisions related to the Public Bid, the regulations provided
in the Supreme Decree No. 059–96–PCM, Consolidated Text of the Regulations with the status of
Law that Regulate the Concession to the Private Sector of Public Infrastructure and Public
Services Works, and its Regulations, Supreme Decree Nº 060–96–PCM, the Bidding Terms, the
Circular Letters and the final version of the Concession Contract.
2. We have examined and agree with the Bidding Terms, the Agreement and any other background
information and documents, that we hereby expressly agree with the obligations imposed by the
compliance of such Bidding Terms and other regulations applicable to the Concession Agreement,
and that we do not have any comments or objections to make. Consequently, we hereby exempt
PROINVERSIÓN and its advisors from any liability for eventual errors or omissions that the
background information and documents mentioned above may have.
3. Should we be granted the Award, we agree to enter into the respective Concession Agreement
through the Concessionaire entity to be incorporated.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................ (Shortlisted Bidder)
Name
………………………. (Shortlisted Bidder's Legal Representative)
Signature
……………………….. (Shortlisted Bidder's Legal Representative)
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FORM No. 27: AFFIDAVIT ON COMMITMENT TO INCORPORATION
(Applicable for a Natural Person)
(Reference: Section 6.2.1.5 of the Bidding Terms)
We hereby state under oath that:
1.- …...........................................................................................(Bidder's name) intends to form a
legal person with address in the Republic of Peru and a social capital in accordance with the
provisions in the Concession Contract, if such person is granted the Award.
2.- The incorporated legal person shall sign the Concession Contract for the Project “provision of
Sanitation Services for South Lima Districts”
3.- If the Award is granted to us, we agree to submit the Deed of Incorporation of the
Concessionaire and the corresponding certificate of registration in the Registry Office, by the
Closure Date.
In this regard, we declare that we are aware of and agree that a failure to fulfill this obligation may
be taken into consideration for a possible decision to leave the Award granted in our favor without
effect.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................ (Bidder)
Name
………………………. (Bidder's Legal Representative)
Signature
……………………….. (Bidder's Legal Representative)
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FORM No. 28: AFFIDAVIT ON COMMITMENT TO INCORPORATION
(Applicable for a Consortium)
(Reference: Section 6.2.1.5 of the Bidding Terms)
We hereby state under oath that:
1.- .............................................................................................. (name of each one of the members
of the Consortium), have associated in a consortium for the purpose of participating in this Public
Bid.
2.-
We, …........................................................................................... (name of each one of the
members of the Consortium) intend to form a legal person with address in the Republic of Peru and
a social capital in accordance with the provisions in the Concession Contract, if such Consortium is
granted the Award.
3.- The incorporated legal person shall sign the Concession Contract for the Project “provision of
Sanitation Services for South Lima Districts”
4.- If the Award is granted to us, we agree to submit the Deed of Incorporation of the
Concessionaire and the corresponding certificate of registration in the Registry Office, by the
Closure Date.
In this regard, we declare that we are aware of and agree that a failure to fulfill this obligation may
be taken into consideration for a possible decision to leave the Award granted in our favor without
effect.
Place and date: …..........., ….....….................., 201…
Entity
…........................................................ (Bidder)
Name
………………………. (Bidder's Legal Representative)
Signature
……………………….. (Bidder's Legal Representative)
Entity
…........................................................ Legal Representative of (Member 1)
Name
………………………. Legal Representative of
Signature
……………………….. Legal Representative of (Member 1)
Entity
(Member 1)
…........................................................ Legal Representative of (Member 2)
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Name
………………………. Legal Representative of
(Member 2)
Signature
……………………….. Legal Representative of (Member 2)
(…)
Entity
…........................................................ Legal Representative of (Member n)
Name
………………………. Legal Representative of
(Member n)
Signature
……………………….. Legal Representative of (Member n)
page 154