Opening just one unsolicited proposal or all

The implementing rules and regulations of the build-operate-transfer law and the 2013 Joint Venture Guidelines issued by the National Economic and Development Authority provide for the first in time approach. The regulations are similarly worded.

This approach becomes relevant when there is more than one unsolicited proposal (UP) submitted by private sector proponents (PSPs) for the same or similar project under a public-private partnership (PPP) arrangement.

The build-operate-transfer law IRR provides that, “under this approach, the first complete proposal is evaluated and decided upon. The second complete proposal will only be entertained if the first one is rejected. Otherwise, the second proposal will be considered only if there is a failure in the negotiation of the first proposal or during the invitation for comparative proposals…xxx. Under the first in time approach, the head of agency/LGU shall acknowledge the submission of other unsolicited proponent for the same or similar project concept, and advise the unsolicited proponent on existence of similar project concept and its rank/position based on date of submission of unsolicited proposals.”

The questions now are, does the rules strictly provide for a sequential approach, i.e., second or later UPs can only be opened by the government implementing  agency (IA) if the first or subsequent UPs are rejected, or do the rules countenance a simultaneous approach, i.e., all UPs are opened to determine completeness, and the first complete, UP is the first/only one considered for evaluation and possible acceptance?

• The sequential approach. A plain reading of the rules provides that a second UP, in terms of time of submission, can only be opened by the IA if the first is rejected. Logically, a third UP can only be opened if the first and second UPs are rejected.

If the first UP is ascertained to be complete, the second UP cannot be opened and evaluated. To allow the opening of subsequent UPs when earlier ones are not yet rejected would be violative of the rules and would amount to an amendment of the rules. The rule is clear and there is no need to interpret.

After the determination of completeness of the first UP, acceptance follows for purposes of negotiations. The PSP, upon acceptance, is conferred original proponent status. No other UP can be entertained post-acceptance unless negotiations fail.

• The simultaneous approach. The opening all UPs to determine completeness is an approach not specifically provided under the rules. It is, likewise, not prohibited. Opening the second and other subsequently submitted UPs to determine their respective completeness, especially if UPs are submitted under different modalities and rules, does not mean that the second UP will outrank the first. If the first and second UPs are complete, only the first will be evaluated for purposes of acceptance. The second UP can only be accepted for purposes of negotiation if the first is not accepted or if negotiations with it fail.

Simultaneous here refers to simultaneous evaluation for completeness, not simultaneous negotiations with more than one PSP. The IA can only negotiate with one PSP.