DoE exempt bidders with compliant projects

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Although some stakeholders may be disappointed that additional preferred bidders were not announced for Window 3, this exemption may nonetheless go some way towards reducing the time spent and the costs incurred by bidders in Window 4.

To qualify for the exemption, the bid response for which an exemption is sought must:

• rely on the same project site, project layout and technology as those contained in the bid response submitted for the project in Windows 1, 2 and/or 3; and
  
• have been judged by the DoE to be 'compliant' in any earlier bid submission phase, but ultimately not successful because of other considerations such as pricing.

For structuring purposes, it is not necessary to use the same bidding entity for a complaint project (which may be useful for example for consortium bids). However, a bidder claiming the exemption must provide sufficient information to the DoE to enable the DoE to confirm the fact that the project site, project layout and technology are identical to the project site, project layout and technology used in a previous bid response.

Regarding 'compliant' projects, we have seen letters from the DoE addressed to bidders in Window 3 confirming that the bid response met all of the threshold requirements of Part B of the RFP, but was ranked behind other bid responses when evaluated on considerations such as price and economic development contributions in accordance with Part C of the RFP.

Confirmatory letters

We have not, however, seen the DoE issue any such confirmatory letters prior to Window 3 and there may be bidders in Window 3 who are unclear about the judgment passed by the DoE on their projects. In these circumstances, a returning bidder should ask the DoE for such a letter in time for bid submission into Window 4.

The DoE has undertaken in this regard to notify all unsuccessful bidders whether their bid response passed the Part B evaluation (and so was a compliant bid) but was unsuccessful on the Part C competitive evaluation only; or whether the bid response failed any part of the Part B evaluation and so was not considered to be a compliant bid. Only in instances where the bidder was previously notified that the project passed all aspects of the Part B evaluation (and so was a compliant bid), can the exemption be claimed.

If a project qualifies for the exemption, the bidder will return Appendix AA as part of its bid submission, which is a new 'Returning Compliant Bidder Declaration'. This is a simple two-page letter in which the bidder confirms that it wishes to take advantage of the exemption and qualifies to do so because:

• it submitted a bid response in Windows 1, 2 and/or 3;
  
• the DoE notified it that while its bid response was unsuccessful, the bid response passed the Part B evaluation (a copy of this letter must be attached to Appendix AA); and
  
• the bid response was in respect of a project site, project layout and technology which is identical to the site, layout and technology included in the current bid response to be submitted by the bidder in Window 4 or 5. A full property description is required. The descriptions of the project and the facility bid in an earlier window must also be identical to those included in the bid response submitted for Window 4 or 5.

If a bidder qualifies for the exemption, then it does not have to include the returnable schedules required in response to the land acquisition and land use criteria and evaluation sections of the RFP, or the environmental consent criteria and evaluation sections of the RFP; i.e. no other information is required to be submitted by a returning bidder in respect of a compliant project with its bid response, for the purpose of demonstrating compliance with the Land Acquisition and Land Use Criteria and Evaluation (clause 2.3 of Part B [Qualification Criteria]), and the Environmental Consent Criteria and Evaluation (clause 2.4 of Part B [Qualification Criteria]).

Volumes not published

The volumes containing these returnable schedules have not yet been published for Window 4, but if one goes on the returnable schedules contained in Volume 2A of the RFP published for the third bid submission phase, then not having to resubmit these sets of information should make a material difference to the amount of time and energy which returning bidders with compliant projects need to spend on their Window 4 bids.

For example, it should not be necessary for a returning bidder with a compliant project to provide copies of the title deed, notarial lease or other document evidencing real rights in and to the project site. Nor should it be necessary to include authorisations relating to compliance with environmental laws, water use, land use, subdivision, removal of restrictive conditions, rezoning and the like for that project as envisaged in clauses 2.3 and 2.4 of Part B (qualification criteria) of the RFP.

Of course these authorisations and consents still need to be in place for the lawful operation of a power generation facility and will remain a key component of the bankability of the project to the extent applicable. Accordingly, having been obtained in a previous Window, they need to remain valid and of full force and effect on the relevant bid submission date.

Even if a returning bidder has projects which qualify for the exemption, it need not claim those exemptions, but is free to bid qualifying projects as if for the first time and need not explain why it has chosen to do so.