THE Philippine Competition Commission (PCC) said it drafted a circular which will allow the agency to address competition concerns at the pre-bidding phase of public-private partnerships.
“We would want to have a more smooth process for reviewing transactions related to government procurement projects particularly those infrastructure projects under BOT (build, operate-transfer) projects… To make that happen its very important that we coordinate our actions with other government agencies in this case PPP,” chairman Arsenio M. Balisacan told BusinessWorld in an interview in Quezon City on Monday.
“Just like in the third telco, the PCC comes in to lay out, to provide the competition lens or the factors that bidders will have to be aware of and have to take into account when they submit their bids. PCC helps in such a way that competition concerns are already incorporated,” Mr. Balisacan added.
The draft is in line with the agency’s mandate under Republic Act 10667, or the Philippine Competition Act of 2015.
The proposed rules will apply solely to solicited projects undertaken by agencies and instrumentalities of the national government, including government-owned and controlled corporations, government financial institutions, and state universities and colleges, pursuant to the BOT Law and its implementing rules and regulations.
It will not cover solicited projects undertaken by local government units; unsolicited proposals; and joint ventures, which the PCC will address with separate issuances.
Under the proposed measure, the PCC may provide inputs “on the terms of reference of the transaction advisor or consultant to be procured by the agency for the development of the project feasibility study.”
The commission may also provide input on how the pre-qualification documents, bid documents, PPP contract, and other related documents for review may affect competition in the markets affected by the project, using the substantive standards and practices as provided under the PCC Merger review guidelines and other PCC related issuances.
The PCC may require undertakings from the prospective bidders, likewise to be incorporated in the project documents. The undertakings are a list of commitments that the PCC will require the prospective bidders to make in order to address any potential competition issues identified by the PCC.
Under competition law, joint ventures are notifiable.
In the proposed circular, agencies may also seek exemptions from compulsory notification in connection with their solicited projects.
The approval of the exemption of the solicited project will be determined by the PCC by considering the nature and scope of the project; the bidding design and process; and competition concerns that may arise from the nature and/or composition of prospective bidders and the winning project proponent.
The PCC is seeking comment on the draft circular until March 26. — Janina C. Lim
