REPUBLIC OF PERU
PRIVATE INVESTMENT PROMOTION AGENCY
PROINVERSIÓN COMMITTEE ON ROAD, RAILROAD AND AIRPORT INFRASTRUCTURE - PRO INTEGRACIÓN
TENDER DOCUMENTS
COMPREHENSIVE PROJECTS TENDER OF THELOGISTICS PLATFORM AND TRUCK PARKING & SERVICE CENTER
October2014
Important: This is an unofficial translation. In case of divergence between the English and Spanish text, the version in Spanish shall prevail
TABLE OF CONTENTS
1.TENDER
1.1Purpose of the Tender
1.2Definitions
1.3Legal Framework and Background of the Tender
1.4APN assignment and Powers of the Committee and PROINVERSIÓN
1.5Agreement
1.6Tender Schedule
1.7Interpretation and References
2.AUTHORIZED AGENTS AND LEGAL REPRESENTATIVE
2.1.Authorized Agents
2.2.Legal Representative
3.INQUIRIES AND INFORMATION
3.1.Inquiries on the Tender Documents and Suggestions on the Draft Agreement
3.2.Access to Information – Data Room
3.3.Request for meetings and visits
3.4.Limitations of Liability
4.SUBMISSION OF ENVELOPES No. 1, No. 2 and No. 3
4.1.Submission of Envelopes by the Authorized Agent or Legal Representative
4.2.Language
4.3.Original Documents and Copies
4.4.Method of Submission of Envelopes No. 1, No. 2 and No. 3
4.5.Preparation and Submission Cost
4.6.Effects of the Submission of Documents and Binding Nature of the Tender Documents
5.SHORT-LISTING REQUIREMENTS: CONTENTS OF ENVELOPE No. 1
5.1Technical-Operating Requirements
5.2Legal Requirements
5.3Financial Requirements
5.4Simplification Mechanism
5.5Verification of Information Submitted to the Committee
6.SUBMISSION OF ENVELOPE No. 1 AND SHORT-LISTING RESULTS
6.1Submission of Envelope No. 1
6.2Gradual Announcement of the Short-listed Bidders
6.3Amendments to the Formation of Consortiums
7.CONTENTS OF ENVELOPES No. 2 AND No. 3
7.1Contents of Envelope No. 2
7.2Contents of Envelope No. 3: Economic Proposal
8.ACT OF RECEIPT OF ENVELOPES No. 2 AND No. 3, OPENING AND EVALUATION OF ENVELOPE No. 2
8.1Act of Receipt of Envelopes No. 2 and No. 3 and Opening of Envelope No. 2
8.2Evaluation of the Contents of Envelope No. 2
9.OPENING OF ENVELOPE No. 3 AND CONTRACT AWARD
9.1Opening and Evaluation of Envelope No. 3 (Economic Proposals)
9.2Process for Awarding the Contract
10.APPEALS
10.1Appeal Procedure
10.2Challenge Bond
11.SUSPENSION OR CANCELLATION OF THE TENDER
12.CLOSING PROCEDURE
12.1Closing Date
12.2Closing Ceremony
12.3Execution of the Concession Contract
12.4Entry into force of the Contract
12.5Execution of the Proposal Validity, In-force Status and Seriousness Bond
13.FINAL PROVISIONS
13.1Applicable Laws
13.2Jurisdiction and Competence
ANNEX No. 1
Appendix No. 1
SPECIFICATIONS FORT HE CONTENT OF THE TECHNICAL PROPOSAL
ANNEX No. 1
Appendix No. 2
SWORN STATEMENT OF COMPLIANCE WITH MINIMUM TECHNICAL REQUIREMENTS
ANNEX No. 2
TENDER SCHEDULE
ANNEX No. 3
Appendix No. 1
TECHNICAL-OPERATIONAL REQUIREMENTS FOR SHORT-LISTING
ANNEX No. 3
Appendix No. 2
SHORT-LISTING TECHNICAL REQUIREMENTS: SWORN STATEMENT OF THE STRATEGIC PARTNER
ANNEX No. 4
Appendix No. 1
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT OF INCORPORATION OF LEGAL PERSON
ANNEX No. 4
Appendix No. 2
LEGAL SHORT-LISTING REQUIREMENTS: JOINT AND SEVERAL COMMITMENT FOR SHORT-LISTING
ANNEX No. 4
Appendix No. 3
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT OF COMPANY INCORPORATION
ANNEX No. 4
Appendix No. 4
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT ON THE
RELATIONSHIP WITH THE PARTY WHO PAID THE PARTICIPATION FEE
ANNEX No. 4
Appendix No. 5
1.1SWORN STATEMENT ON THE COMPANY’S ELIGIBILITY
TO ENTER INTO CONTRACTS WITH THE STATE
ANNEX No. 4
Appendix No. 6
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT THAT NO PRIVILEGE, DIPLOMATIC IMMUNITY, SHALL BE RESORTED
ANNEX No. 4
Appendix No. 7
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT ON THE INEXISTENCE OF CONFLICTS OF INTEREST
ANNEX No. 4
Appendix No. 8
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT THAT BIDDER HAS NO INTEREST IN ANY OTHER BIDDER
ANNEX No. 4
Appendix No. 9
LEGAL SHORT-LISTING REQUIREMENTS: SWORN STATEMENT THAT BIDDER HAS NO INTEREST IN ANY OTHER BIDDER
ANNEX No. 5
Appendix No. 1
FINANCIAL SHORT-LISTING REQUIREMENTS: SPECIMEN OF
FINANCIAL INFORMATION LETTER
ANNEX No. 5
Appendix No. 2
SIMPLIFICATION MECHANISM: SWORN STATEMENT FOR THE ISSUE OF CERTIFICATE OF VALIDITY OF THE SHORT-LISTING DOCUMENTS
ANNEX No. 5
Appendix No. 3
SIMPLIFICATION MECHANISM: SWORN STATEMENT OF VALIDITY OF INFORMATION
ANNEX No. 5
Appendix No. 4
CONTENTS OF ENVELOPE No. 2: SWORN STATEMENT OF VALIDITY OF INFORMATION
ANNEX No. 5
Appendix No. 5
CONTENTS OF ENVELOPE No. 2: SWORN STATEMENT OF INCORPORATION OF LEGAL PERSON
ANNEX No. 5
Appendix No. 6
CONTENTS OF ENVELOPE No. 2: SWORN STATEMENT OF INCORPORATION OF LEGAL PERSON
ANNEX No. 5
Appendix No. 7
CONTENTS OF ENVELOPE No. 2: SWORN STATEMENT OF ACCEPTANCE
OF TENDER DOCUMENTS AND CONTRACT
ANNEX No. 6
Appendix No. 1
LIST OF INTERNATIONAL PRIME BANKS AND INTERNATIONAL FINANCIAL INSTITUTIONS AUTHORIZED TO ISSUE THE BONDS REQUIRED IN THE TENDER DOCUMENTS
ANNEX No. 6
Appendix No. 2
LOCAL BANKS AUTHORIZED TO ISSUE THE BONDS
REQUIRED IN THE TENDER DOCUMENTS
ANNEX No. 7
Appendix No. 1
COMPETITION FACTOR
ANNEX No. 7
Appendix No. 2
SPECIMEN OF ECONOMIC PROPOSAL SUBMISSION LETTER
ANNEX No. 8
Appendix No. 1
DATA ROOM: DATA ROOM USERS’ GUIDE
ANNEX No. 8
Appendix No. 2
DATA ROOM: CONFIDENTIALITY AGREEMENT
ANNEX No. 8
Appendix No. 3
DATA ROOM: IDENTIFICATION FORM FOR USERS AUTHORIZED TO USE THE DATA ROOM
ANNEX No. 8
Appendix No. 4
DATA ROOM: MULTIPLE SERVICES REQUEST FORM
ANNEX No. 9
Appendix No. 1
SPECIMEN OF PROPOSAL VALIDITY, IN-FORCE STATUS AND SERIOUSNESS BOND
ANNEX No. 9
Appendix No. 2
SPECIMEN OF PERFORMANCE BOND
ANNEX No. 9
Appendix No. 3
SPECIMEN OF BANK WARRANT BOND TO CHALLENGE THE AWARD
1 / Tender Documents of the comprehensive project “Logistics Platform and Truck Parking & Service Center of Callao Port “TENDER DOCUMENTS OF THECOMPREHENSIVE PROJECTS TENDER OF THE LOGISTICS PLATFORM AND TRUCK PARKING & SERVICE CENTER
1.TENDER
1.1Purpose of the Tender
The State of the Republic of Peru, through the National Port Authoritywith the support of thePrivate Investment Promotion Agency - PROINVERSIÓN, has issued an invitation to participate in the Comprehensive Projects Tender of the Logistics Platform and Truck Parking & Service Center, which shall be within the jurisdiction of the National Government.
The purpose of this Tender is to select the legal person or consortium, comprised of legal persons which, after being incorporated in the Private Agent,shall be in charge of designing, financing, building, operating and maintainingthe Logistics Platform and Truck Parking & ServiceCenterof Callao Portduring the term of the Public-Private Partnership (PPP) agreementunder the terms and conditions stipulated in these Tender Documentsand the abovementioned contract.
The Tender shall be held pursuant to the provisions hereof.
The objectives of the Tender Documents are the following:
- Attaining a transparent, simple and objective procedure, under equal conditions for all Tender participants.
- Attaining the participation of the highest number of Bidders with experience in the supply of the services to be required.
- Attaining the participation of the highest number of investors in capacity to finance the infrastructure and equipping required to supply the services.
- Defining the basis on which the Bidder may prepare the required proposals.
1.2Definitions
The following terms shall have the meanings below:
1.2.1Confidentiality Agreement: The agreement that the Bidders shall sign before using the Data Room, whether through their Authorized Agents or the Legal Representative. The text of the Confidentiality Agreement is included in AppendixNo. 2 of Annex No. 8.
1.2.2Agreement Award: The declaration to be made by the Committee, determining which Listed Bidder has submitted the Best Bid and has won the Tenderunder theterms and conditions established in the Tender Documents.
1.2.3Successful Bidder: The Listed Bidder who wins the Agreement Award.
1.2.4Outer Harbor:It is the parking area for freight vehicles, which will have an appointment-based system to manage the entry and exit movements of such vehicles to and from the Callao Port terminals and the future ZAL. In addition, a diversity of services will be offered, both for freight vehicles as for their drivers, through the Truck Center.
1.2.5Private Investment Promotion Agency (PROINVERSIÓN): It is the organization referred to in Law No. 28660 and Supreme DecreeNo. 042-2009-EF, in charge, among other functions, of promoting private investment in public infrastructure works and public utilities, which was entrusted by APN with the execution of the promotion process for the “Logistics Platform and Truck Parking & Service Centerof Callao Port” project.
1.2.6Authorized Agents: The individuals appointed as such by the Bidder, in accordance with Sub-section 2.1 herein.
1.2.7Private Agent or Private Association: It is the legal person, constituted by the Successful Bidder that executes the Agreement with the State.
1.2.8Governmental Authority: The national, regional, department, province or municipal officer, institution or agency that, pursuant to law, exercises executive, legislative or judicial powers, or that belongs to any of the aforementioned governments, authorities or institutions, with jurisdiction over the persons or matters at issue.
1.2.9National Port Authority (APN): It is the technical specialized body created by the LSPN, in charge of the National Port System, attached to the MTC, with internal public law legal capacity, equity capital, and administrative, functional, technical, economic and financial autonomy, and regulatory power by delegation of the MTC. It is in charge of executing the private investment promotion process for national State-owned port infrastructure and facilities. Its Organization and Functions Regulations have been approved by Supreme Decree No. 034-2004-MTC.
1.2.10International Prime Bank / International Financial Institutions: Those entities defined in Appendix No. 1 of AnnexNo. 6 of the Tender Documents, authorized to issue warrant bonds for the purposes of this Tender.
1.2.11Local Banks: The Banks defined in Appendix No. 2 of AnnexNo. 6 of the Tender Documents, authorized to issue warrant bonds for the purposes of this Tender.
1.2.12Tender Documents: This document, including the Annexes and Appendixes hereof, as well as the Circular Letters, which set out the conditions under which the Tender shall be developed, approved by PRO INTEGRACIÓN Committee and the APN.
1.2.13Circular Letters: All the guidelines issued in writing by the Committee, whether regarding specific or general aspects, aimed at complementing, specifying, clarifying, interpreting or amending the contents of the Tender Documents, of another Circular Letter or answering inquiries submitted by those authorized to do so, pursuant to the Tender Documents.The Circular Letters shall be an integral part of the Tender Documents. In the event of a discrepancy or any incompatibility between the contents of the Circular Letters and those of the Tender Documents published on the date of the call for tenders, the provisions contained in the corresponding Circular Letter shall prevail.
1.2.14Committee: PROINVERSIÓN Committee on Road, Railway and Airport Infrastructure Projects – PRO INTEGRACIÓN, established by Supreme Resolution No. 036-2009-EF, the permanent members of which were appointed by Supreme Resolution No. 047-2009-EF and Supreme Resolution No. 046-2010-EF, their appointment being ratified by Supreme Resolution No. 010-2012-EF, and subsequently amended by Supreme ResolutionNo.021-2013-EF y Supreme ResolutionNo.050-2014-EF.
1.2.15Evaluation Committee of Envelope No. 1: The persons appointed by the Committee for the purpose of evaluating the documents contained in Envelope No. 1, pursuant to the Tender Documents.
1.2.16Evaluation Committee of Envelope No. 2: The persons appointed by the Committee for the purpose of evaluating the documents contained in Envelope No. 2, pursuant to the Tender Documents.
1.2.17Tender: The Comprehensive Projects Tender for the Logistics Platform and Truck Parking & Service Center of Callao Port,carried out byPROINVERSIÓNCommittee and regulated by these Tender Documents to choose the Successful Bidder. It starts with the public call and concludes in the Closing Date.
1.2.18Consortium: A group of two or more legal persons with no legal status,which has been created with the aim of participating as a Bidder in this Tender. The Consortium must necessarily include the Strategic Investor as its member.
1.2.19Constructor: It is the legal person, or a Consortium of legal persons,that meets the technical-operational requirements stipulated in Sub-section 5.1 of the Tender Documents and which will execute the Works directly or through a related company.
1.2.20Agreement:It is the Public-Private Partnership agreement whereby the State entrusts the Private Agentwith the design, financing, building, operation and maintenance of the Project; and which contains the all legal, technical and financial documentation that shall govern the relationship between the parties during its effective term.
1.2.21Effective Control: A natural or legal person is entitled or subject to the Effective Control of other natural or legal person in the cases foreseen in CONASEV Resolution CONASEV No. 090-2005-EF-94.10, as amended by CONASEV Resolution No. 005-2006-EF/94.10 or any regulation replacing it.
1.2.22Framework Agreement: Is the Cooperation Framework Agreementsigned on March 10, 2005, whereby the APN entrusts PROINVERSIÓN the development and execution of the private investment promotion processes in State-owned port infrastructure and facilities, to be carried out pursuant to the guidelinesof the PNDP prepared by the APN. The Framework Agreementincludes the addenda thereto signed by the parties.
1.2.23Schedule: The sequential timeline of activities to be developed during this Tender and which are listed in Annex No. 2.
1.2.24DBFOT: The method under which the design, building, financing, operation and maintenance, will be entrusted to the Private Agent, who must transfer the acquired or constructed goods to the State upon termination of the Agreement. DBFOT is the acronym of Design, Build, Finance, Operate and Transfer.
1.2.25Sworn Statement: Written statement submitted by the Bidder and signed by its Legal Representative in which it represents or assumes a commitment presumed to be true for the effects of this Tender.
1.2.26Non-Substantive Defect or Error:It refers to any mistake the Bidder or Short-listed Bidder may have made during the submission of Envelopes No. 1 and No. 2 documents or their contents, as determined by the Committee or Evaluation Committee, which correction implies no change to the sense, conditions or contents of the proposal or the submitted documentation.
1.2.27Participation Fee: Amount equivalent to US$ 2,500.00 (two thousand five hundred and 00/100 US Dollars) to be paid to PROINVERSIÓN by the interested party that wishes to be registered as a Bidder. It grants the right to present itself as such in the Tender.
1.2.28Days:Business days, i.e. not Saturday, Sunday or non-working holidays in the city of Lima. Holidays are understood as those days on which the banks in the city of Lima are not required to be open to the public by order of the Governmental Authority.
1.2.29Calendar Days: Business days, non-business days and non-working holidays.
1.2.30Dollar or US Dollar or US$: The legal tender or currency sign in the United States of America and the currency used for all purposes in this Tender.
1.2.31Related Company:Any company related to, or members of, the Bidder, pursuant to the definition stated in CONASEV’s regulations in force, provided that the Bidder holds Effective Control in such company. In this regard, related companies are those that have a relationship that leads to a related behavior, due to any of the following: i) they belong to the same economic group, ii) one of the legal persons has, directly or indirectly, an interest in the corporate capital of another that allows it to participate in its Board of Directors, one common guarantee supports the obligations of both, iv) over 50% of one company’s obligations are guaranteed by the other, or, v) when more than 50% of the obligations of the legal person are amounts due to the other; provided such company is under Effective Control.
1.2.32State: It is represented by the Ministry of Transports and Communications (MTC), through the APN,for all the purposes of the Tender.
1.2.33Construction Stage:Period in which thePrivate Agent must carry out Works execution, acquisition and implementation of equipment, meeting the requirements established in the Agreement.
1.2.34Exploitation Stage:It is the period in which the Private Agentmust operate theZALand the Outer Harbor, meeting the requirements established in the Agreement.
1.2.35Competition Factor: The variable that defines the winner of the Tender, to be notified through Circular Letter, in accordance with sub-section 7.2 hereof.
1.2.36Closing Date:The day, place and time when the acts established in Sub-section12.2 of the Tender Documents shall be carried out. To be defined through a Circular Letter.
1.2.37Validity, In-force Status and Seriousness Bond:The bank guarantee to be submitted by the Bidder in favor of PROINVERSIÓN, as stipulated herein, to guarantee the validity, in-force status and serious nature of its Economic Proposal and Technical Proposal. The amount of such guarantee shall be notified through a Circular Letter.
1.2.38Agreement Performance Bond:The bank guarantee to be submitted by the Private Agent, in favor of the State, to guarantee the compliance of any and all obligations under the Private Agent’s responsibility stipulated in the Agreement, including the payment of sanctions, with the exception of such Private Agent obligations covered under the Works Construction Performance Bond stipulated in the Agreement.
1.2.39Process Preparation Expenses: Expenses incurred by the State of the Republic of Peru to hire the studies, consultancies and other services, necessary for the execution of the Project’s private investment promotion process. The total amount of such expenses will be notified through a Circular Letter.
1.2.40IGV: It is the acronym of Value-Added Tax, pursuant to Supreme DecreeNo. 055-99-EF, Single Uniform Text of the Law on the Value-Added Tax and Excise Tax, or regulation replacing it, as well as the Municipal Promotion Tax referred to in Supreme Decree No. 156-2004-EF, Single Uniform Text of the Law on Municipal Taxation, or regulations replacing it.
1.2.41Consortium Members: The legal persons that are members of the Consortium.
1.2.42Referential Investment:It is the amount equal to the total of the Works to be executed, expressed in Dollars, in current values, not including the Value-Added Tax, which is only applicable to cases expressly foreseen in the Tender Documents.This amount will be notified through a Circular Letter.
1.2.43National Port System Law (LSPN): It is LawNo. 27943 approving the National Port System Lawand its regulation approved by S.D. 003-2004-MTC.
1.2.44Applicable Laws:All legal provisions that govern the Tender Documents. They include the Political Constitution of Peru, the regulations with force of law,Statutory Regulations, supreme decrees, regulations, directives and resolutions that may be passed by any competent Governmental Authority, pursuant to its creation law, the compliance of which shall be obligatory for the Parties.
1.2.45MGP: It is the acronym of the Peruvian Navy, military institution and execution body of the Ministry of Defense in charge of controlling, supervising and defending the maritime, river and lake domain, pursuant to the Law on the Peruvian Navy approved by Legislative Decree No. 1138.
1.2.46Best Proposal: It is the Economic Proposalsubmitted by the Listed Bidder that obtains the highest score pursuant to the sub-section 7.2and Appendix No. 1 of Annex No. 7, by which it is declared the Successful Bidder and awarded the Agreement.
1.2.47MTC: It is the acronym of the Ministry of Transport and Communications.
1.2.48Works:They are the result of investments in infrastructure and equipment made by the Private Agentwithin the framework of the Agreement.