2012-02-24

NPM 024-2012

Requesting Entity: Clark Development Corporation

Issues Concern: Eligibility Requirements for Joint Venture Agreements for Design and Build Infrastructure Projects

 

Details

Clarification on the required Class "B" documents for a Design and Build Infrastructure Project under Republic Act (RA) 9184 and its Implementing Rules and Regulations (IRR).

Legal Documents Required to be Submitted by a JV

Section 23.1(b) of the IRR requires the submission of a valid JVA in case the JV is already in existence, or duly notarized statements that all the potential JV partners will enter into and abide by the JVA in the event that the bid is successful. The same section also provides that each partner of the joint venture shall submit the legal eligibility documents, but the submission of technical and financial eligibility documents by any of the joint venture partners constitutes compliance. Thus, as we have discussed in a previous opinion, in addition to the JVA or duly notarized statements, each partner or prospective partner to the JV, whether local or foreign, are obliged to submit their individual Class "A" legal documents. The rationale for this requirement is to ensure that all the parties in the JV have the requisite legal personality to conduct business.

Compliance with Technical and Financial Requirements by a JV

We wish to clarify, however, that the documents to be submitted and evaluated should be those of the actual JV partners. In case one of the JV partners is also a JV, only the technical experience/capability and financial standing attributable to the JV shall be considered, and should not include those of its individual member entities.

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In sum, the JV partners are required to submit their individual legal eligibility documents in addition to the JVA in order to be deemed compliant with the eligibility requirements under the IRR and the Guidelines. As regards the evaluation of the technical and financial eligibility, only those belonging or pertaining to the actual members of the MIESCOR-Asiaphil/Alsom JV shall be considered, and shall not include the juridical partners/investors of the Asiaphil/Alsom JV.