ISRAEL ELECTRIC CORPORATION LTD. INVITATION FOR PRE ... · Revised Version 10.10.2019 5 Facilities...
Transcript of ISRAEL ELECTRIC CORPORATION LTD. INVITATION FOR PRE ... · Revised Version 10.10.2019 5 Facilities...
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ISRAEL ELECTRIC CORPORATION LTD.
INVITATION FOR PRE-QUALIFICATION
TO PARTICIPATE IN A TENDER FOR THE SUBMISSION OF BIDS
TO PURCHASE THE
RAMAT HOVAV TRANSFERRED FACILITIES
July October 1510, 2019
REVISED VERSION
Ramat Hovav – Invitation for Pre-Qualification
Revised Version 10.10.2019
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CONTENTS
1. INVITATION FOR PRE-QUALIFICATION ............................................................................. 3
2. RULES AND PROCEDURES ....................................................................................................... 5
3. GENERAL PROVISIONS RELATING TO PARTICIPANTS ............................................... 16
4. PROFESSIONAL PRE-QUALIFICATION REQUIREMENTS ............................................ 22
5. FINANCIAL PRE-QUALIFICATION REQUIREMENTS .................................................... 26
6. RANKING OF THE PARTICIPANTS (OPTIONAL) ............................................................. 34
7. METHOD OF SUBMISSION...................................................................................................... 35
8. EVALUATION OF THE PRE-QUALIFICATION SUBMISSIONS ..................................... 38
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1. INVITATION FOR PRE-QUALIFICATION
1.1 Introduction
On June 3, 2018, the Government of Israel approved a broad reform of the activity and
structure of the Israel Electric Corporation Ltd., as part of Government Resolution No.
3859 (hereinafter: the “Government Resolution”, the “Reform” and “IEC”
respectively). For the purpose of implementation of the Reform, the Ministers of Finance
and Energy, among others, were charged with the implementation of amendments to
legislation in the Electricity Sector Law, and those amendments were approved by the
Knesset in July 2018 (Electricity Sector Law (Amendment No. 16 and Temporary
Provision), 2018). As part of the Reform, it was agreed and resolved, inter alia, that IEC
will sell the Ramat Hovav Transferred Facilities as a whole, in a single transaction.
Accordingly, the Tender Committee hereby invites any Entity (other than Israeli
Government Corporations) or consortia of Entities (joint ventures) that is interested in
participating in the Pre-Qualification Process, all as set forth in this Invitation and
pursuant and subject to the terms thereof.
The Tender Committee reserves the right to contact additional Entities at its own
initiative, in any manner it sees fit, to notify them of its intention to sell the Ramat Hovav
Transferred Facilities, and to invite them at any time to participate in the Pre-
Qualification Process pursuant to this Invitation.
1.2 The Selection Process
The Tender Committee intends to select one Entity to purchase the Ramat Hovav
Transferred Facilities, via a two-stage Sale Process, as follows:
a) A Pre-Qualification Stage; and
b) A Tender Stage.
1.3 The Pre-Qualification Stage
The purpose of this Pre-Qualification Process is to identify Eligible Participants who will
be invited to participate in the Tender Process.
In this Pre-Qualification Stage, the Participants will be requested to submit Pre-
Qualification Submissions in accordance with the provisions of this Invitation, in order to
demonstrate their compliance with all the Pre-Qualification Requirements and all other
applicable provisions of this Invitation.
The Tender Committee will examine and evaluate the Pre-Qualification Submissions
submitted by the Participants in accordance with the provisions of this Invitation, and at
the end of the Evaluation Process, it will announce the Eligible Participants.
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1.4 The Tender Stage
Following the completion of the Pre-Qualification Process, the Tender Committee
intends to invite all Eligible Participants to participate and submit Bids in the Tender
Process.
After the completion of the Tender Process, the Tender Committee will announce the
Successful Bidder, with which IEC will enter into an agreement for the sale of the Ramat
Hovav Transferred Facilities, all in accordance with the provisions of this Invitation and
the Tender Documents to be published by IEC.
Due to the unique characteristics of the Sale Process, and due to the uncertainty involved
in the Sale Process and changes that may take place during the various stages of the Sale
Process, IEC reserves the right, at any point, to make changes in the Sale Process,
including substantive changes in the wording of the Sale Contract, including all
appendices thereto and the ancillary documents (including a Power Purchase Agreement,
metering agreement and a substation operation and maintenance agreement), whether at
its initiative or pursuant to requests from an Eligible Participant and/or changes in
regulation, and no Participant and/or Eligible Participant and/or Bidder and/or person or
Entity on their behalf will have any complaint, claim or demand in connection therewith.
In addition, IEC reserves its right to conduct negotiations with some or all of the Bidders,
and to conduct an additional competitive procedure ("Best & Final") among Bidders the
Bids of which will be ranked by IEC within the Tender Process as optimal, all at IEC's
discretion and pursuant to the provisions of Applicable Law.
1.5 Anticipated Schedule
1.5.1 Without derogating from the Tender Committee’s right to postpone and/or to
modify any of the following dates at any time (including in proximity to the dates
set forth below), at the Tender Committee’s sole discretion, the planned schedule
for the Pre-Qualification Stage is as follows:
Date of publication of this Invitation July 15, 2019
Final date for the submission of Requests for
Clarification with respect to this Invitation
August 1226, 2019
Pre-Qualification Submission Date October November 14,
2019
1.6 The Properties Being Sold
1.6.1 A general description of the Ramat Hovav Transferred Facilities is attached as
Appendix 1 to this Invitation. The Site Diagram is attached as Appendix 2 to this
Invitation.
1.6.2 Without derogating from the description of the Transferred Facilities, as set forth
in Appendix 1 to this Invitation, it is hereby clarified that the Transferred
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Facilities include all items constructed on the Site, including buildings, fixtures,
movable property and equipment, including the fuel tanks and the fuel system,
water piping, spare parts and inventory, provided that all these are directly used
for the operation of the power plant, and all subject to the terms of the Sale
Contract. In addition, the sale of the Transferred Facilities will may include, if the
Purchaser is interested in it, the assignment of certain agreements in connection
with the Site to the Purchaser, all as will be set forth in the Sale Contract and
subject to the provisions thereof.
1.6.3 The Ramat Hovav Transferred Facilities are being sold exclusively as a “going
concern”, for the purpose of the continued operation and maintenance of the Site
and for the purpose of the generation of electricity and the sale thereof to the
system operator, in accordance with new generation licenses to be issued to the
Purchaser by the Electricity Authority under the Electricity Sector Law, and
relevant regulations enacted thereunder, and provided that the Purchaser obtains
all of the Required Approvals, according to the provisions of Section 2.19
(Receipt of Approvals From the Competent Authorities) below.
1.6.4 The Ramat Hovav Transferred Facilities will be sold in the condition they are in,
including from the legal, regulatory, accounting, economic, tax-related, physical,
environmental, technical and engineering standpoints as will be set out in the Sale
Contract (hereinafter: “As Is”), without any representations or warranties of IEC
regarding the condition of the Ramat Hovav Transferred Facilities other than as
will be expressly set forth in the Sale Contract.
1.6.5 On the date of completion of the Sale Process, upon the Handover of the Ramat
Hovav Transferred Facilities to the Purchaser, certain employees of IEC (both
permanent and temporary) who are intended for secondment will be seconded to
the Purchaser (the "Seconded Employees") for a period of five (5) years. The
identities of the Seconded Employees will be provided to the Purchaser before the
Handover, and the terms of such secondment will be determined by IEC, all as
will be set forth in the Sale Contract.
1.6.6 The operation and maintenance of all of the Ramat Hovav Transferred Facilities,
following the completion of the Sale Process and Handover will be at the
exclusive responsibility of the Purchaser and it is under the Purchaser's exclusive
responsibility to contract with all relevant services providers prior to the
Handover, all as will be set forth in the Sale Contract, and subject to the
provisions thereof.
2. RULES AND PROCEDURES
2.1 Definitions
All capitalized terms used in this Invitation shall have the meaning ascribed thereto
herein or in Annex 1.
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2.2 Governing Law and Jurisdiction
2.2.1 The Pre-Qualification Process, the Pre-Qualification Documents and the
interpretation and implementation thereof shall be governed and construed in
accordance with the provisions of Israeli Law, including the Mandatory Tenders
Law 1992 and the Mandatory Tender Regulations 1993 ("Regulations").
2.2.2 The competent courts of Tel Aviv-Jaffa shall have the sole and exclusive
jurisdiction over all matters and all disputes arising in connection with the Pre-
Qualification Process.
2.3 Regulatory Framework
The regulatory framework which will apply in connection with the Pre-Qualification
Stage (and, as applicable, to the Tender Stage and to the operation of the Transferred
Facilities by the Purchaser) will be in accordance with, inter alia (in each case as
amended, consolidated, extended, updated, replaced or re-enacted from time to time):
a) The Electricity Sector Rules (Transactions with an Essential Service Provider), 2000,
the Electricity Authority resolution dated May 13, 2019 (Decision No. 5 (1358) from
meeting 558) including the explanatory notes and the Q&A document, as published
in Electricity Authority's website, with respect to publication of general transactions
and standards for new producers in the transmission network; and
b) The document of principles for advice on sector-wide competition in the sale of the
generation sites published by the Competition Authority on September 27, 2018, and
the document of principles for advice on sector-wide competition in the sale of the
generation sites published by the Concentration Committee pursuant to the
Promotion of Competition and Reduction of Concentration Law 2013 (“the
Concentration Committee”) on October 4, 2018; and
c) The procedures of the Israel Lands Authority (“the ILA”) with respect to the
conferral of rights in real estate upon a Foreign Entity, including Professional
Procedure No. 05.02M; and
d) Standards published by the Electricity Authority, and in particular the tariff
regulation that will be published by the Electricity Authority as part of its regulation
for Ramat Hovav, as may be amended and/or updated from time to time.
2.4 Waiver
2.4.1 By submitting a Pre-Qualification Submission, each Participant (and any
Participating Entity and any person or Entity acting on their respective behalves)
will be deemed to have waived any claims in connection with the terms of this
Invitation and any right to seek interim (including injunctive) relief of any nature
with respect to or concerning the Pre-Qualification Process or any actions
thereunder, or to seek any other remedy the effect of which, whether directly or
indirectly, would be a delay in the Pre-Qualification Process or any actions
thereunder.
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2.4.2 The foregoing does not derogate from the obligation of any Participant, and any
Participating Entity, and anyone on their behalf, to address the Tender
Committee, in writing, with a specific and detailed claim or complaint.
2.5 Conformity with All Applicable Laws
Participants and their Pre-Qualification Submissions shall abide by all Applicable Law.
Participants shall be subject to any changes in Applicable Law (including any
governmental decisions), should such changes occur during the Pre-Qualification
Process.
2.6 Preparation for Submission
2.6.1 By submitting a Pre-Qualification Submission each Participant (and each
Participating Entity) confirms that it has received the complete Pre-Qualification
Documents, that it has read, considered and understood the Pre-Qualification
Documents, and that it accepts the terms and conditions thereof and all
obligations and undertakings specified or implied therein.
2.6.2 The descriptions that are included in the Pre-Qualification Documents, including
with respect to the Ramat Hovav Transferred Facilities, are intended exclusively
for the purpose of providing a general background, and do not constitute
representations, warranties or undertakings of IEC or anyone on its behalf.
Furthermore, such descriptions are not exhaustive and do not constitute a
substitute for the performance of an examination by Participants of all relevant
information concerning the Ramat Hovav Transferred Facilities.
2.6.3 The information included in the Pre-Qualification Documents, including with
respect to the Ramat Hovav Transferred Facilities, is to the best of IEC’s
knowledge only, and neither IEC nor anyone on its behalf (including the
Advisors) is liable in any way whatsoever for the correctness, accuracy and/or
completeness of such information and/or for any other information that will be
provided to a Participant and/or to anyone on its behalf during the Pre-
Qualification Process.
2.6.4 Each Participant shall be deemed to be aware of and familiar with all Applicable
Law with respect to the Pre-Qualification Process, the Tender Process and the
Sale Process. All Pre-Qualification Submissions shall be prepared and submitted
in accordance with Applicable Law, and the Participants (and each Participating
Entity) are assumed to have obtained professional advice with respect to the
relevant disciplines, including legal, financial and constructional, for participating
in the Pre-Qualification Process.
2.7 The Invitation
2.7.1 The Pre-Qualification Documents comprise of this Invitation for Pre-
Qualification, its annexes, the Pre-Qualification Forms and any other document
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issued by the Tender Committee during the Pre-Qualification Process, including
any Addendum to this Invitation (hereinafter: the “Pre-Qualification
Documents”).
2.7.2 In any case of lack of clarity and/or ambiguity and/or contradiction and/or
incompatibility between the provisions of any Pre-Qualification Documents, the
interpretation that is most beneficial to IEC (as determined by IEC in its sole
discretion) shall apply. Each Participant that wishes to receive clarification
regarding any such lack of clarity and/or ambiguity and/or contradiction and/or
incompatibility shall notify IEC of such matter in accordance with the procedure
set out in Section 2.14 (Requests for Clarification of the Pre-Qualification
Documents) below.
2.8 Severability
The invalidity or unenforceability of any provision of the Pre-Qualification Documents
shall not affect the validity or enforceability of any other provisions, which will continue
in effect. Without derogating from the foregoing, if it is determined that any provision of
the Pre-Qualification Documents is invalid or unenforceable, then such provision will be
replaced by a valid and enforceable provision, the content, purpose and outcome of
which are as close as possible to those of the original provision.
2.9 Cost of Participation
2.9.1 Any and all costs and expenses incurred by Participants or Members thereof with
respect to and/or in connection with their participation in the Pre-Qualification
Stage (including, without limitation, preparation and submission of the Pre-
Qualification Submissions, costs related to examination by external consultants
on behalf of the Participants, and including changes and Requests for
Clarifications), will be borne by Participants.
2.9.2 None of the Participants, the Members, anyone acting on their behalf or anyone
for whom any Participant or Member thereof may be contractually or legally
responsible or accountable, will have any right to any compensation or restitution
from IEC, the Tender Committee or anyone acting on their behalf for any costs or
expenses so incurred by them, or for any loss or damage whatsoever suffered by
any Participant or Member thereof, their employees, officers, agents, or any other
persons for whom any Participant or Member thereof may be contractually or
legally responsible or accountable, in connection with their participation in the
Pre-Qualification Process, including in the event of termination of the Pre-
Qualification Process and/or the Sale Process for any reason whatsoever; the
disqualification of a Pre-Qualification Submission for any reason whatsoever,
including due to a Participant’s failure to receive any Required Approval or
otherwise due to the objection of any governmental authority; the non-selection of
a Participant as an Eligible Participant; or a change in the terms of the Pre-
Qualification Stage.
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2.9.3 Each Participant hereby waives, in its own name and in the name of its Members
and anyone acting on its or their behalf and in the name of any other persons for
whom it (or any of its Members) may be contractually or legally responsible or
accountable, any rights, claims or demands for compensation from IEC or the
Tender Committee or anyone acting on their behalf with respect to the foregoing
or as a result thereof.
2.10 Intellectual Property
The Pre-Qualification Documents are the property of the Tender Committee, and are
provided to the Participants for the sole purpose of their participation in the Pre-
Qualification Process. Participants will not be entitled to copy and/or to use the Pre-
Qualification Documents for any other purpose whatsoever.
2.11 Language of the Pre-Qualification Documents
The binding language for of the Pre-Qualification Documents is English, except for any
specific parts thereof which may be in Hebrew (as set out therein). However, the Tender
Committee reserves the right to issue a Hebrew version of any part thereof.
2.12 Access to Documents and Participation Fee
2.12.1 Any Entity wishing to participate in the Pre-Qualification Process may view the
Pre-Qualification Documents at the offices of IEC and on IEC's website.
2.12.2 The participation in the Pre-Qualification Process and the submission of Requests
for Clarification is subject to the payment of a participation fee in the amount of
NIS 15,000 (in words: fifteen thousand New Israeli Shekels), including VAT (the
“Participation Fee”), to be paid to IEC via bank transfer to one of the following
bank accounts, as applicable:
(a) For Participants paying from Israel – to IEC's bank account which is
maintained at the Postal Bank ("Bank Ha-Doar"), Account No. 5-31454-3
under the name of “Israel Electric Corporation Ltd.” (Bank No. 09, branch
No. 001); or
(b) for Participants paying from abroad, to IEC's bank account at Mizrahi Tefahot
Bank Ltd, IL57 020 444 0000 000 318200.
2.12.3 The amount of the Participation Fee also includes payment for the Tender
Documents, when distributed.
2.12.4 The Participation Fee will not be refunded to Participants, other than where the
Pre-Qualification Stage is cancelled and such cancellation does not result from or
relate to actions or circumstances related to the process itself (such as the Pre-
Qualification Submissions, the acts or the omissions of the Participants, in whole
or in part).
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2.12.5 An Entity which does not pay a Participation Fee may submit a Pre-Qualification
Submission, provided that the right to do so was transferred to it by an Entity
which did so pay. The payment of a Participation Fee through another is
permitted, provided that only one Pre-Qualification Submission may be submitted
in respect of any one payment. Where a Participant is a Group, only one payment
of Participation Fee will be required.
2.13 Authorised Representative
2.13.1 Each Participant shall appoint a representative on its behalf, who will be
authorized by the Participant to approach the Tender Committee on behalf of the
Participant, and to receive notices and/or guidance for the Participant and all of its
Members, as applicable (hereinafter: the “Authorized Representative”).
2.13.2 Participants shall submit to the Tender Committee a notice of the appointment of
an Authorized Representative on Pre-Qualification Form F, as well as a copy of
the receipt for the payment of the Participation Fee, to the e-mail address
provided in Section 2.14.1, prior to submitting Requests for Clarifications or prior
the Pre-Qualification Submission Date, whichever is earlier. The Participant is
also required to submit the receipt for the payment of the Participation Fee as part
of its Pre-Qualification Submission, unless it has already submitted it to the
Tender Committee prior to the Pre-Qualification Submission Date.
2.13.3 A Participant may replace its Authorised Representative at any time during the
Pre-Qualification Stage, by providing an advance written notice to the Tender
Committee, signed by all Members thereof, if applicable.
2.13.4 Neither IEC, the Tender Committee nor anyone acting on their behalf shall be
responsible for any damage or loss of any kind whatsoever suffered by a
Participant or anyone on its behalf, arising from an error or omission with respect
to any information provided by a Participant under this Section.
2.14 Requests for Clarification of the Pre-Qualification Documents
2.14.1 Participants may address requests for clarification(s) to the Tender Committee, in
writing, with respect to the Pre-Qualification Documents, by way of a written
request from the Participant’s Authorised Representative to the following e-mail
address: [email protected], by no later than the deadline set out in
Section 1.5 (Anticipated Schedule) ("Requests for Clarification"). Such
Requests must include the following details: the details of the Participant
submitting the Request (and of its Authorized Representative), their e-mail
address, the name of the document to which the Request refers and the page
number and the section number thereof. Requests for Clarification must be
submitted as Word (open-for-editing) and scanned PDF files, in the following
format:
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Serial Number Name of
Document, Page
Number
Section Clarification/
Question
1.
2.14.2 Any Requests for Clarification submitted by Participants after the deadline set out
in Section 1.5 (Anticipated Schedule) may be accepted or rejected, at the sole
discretion of the Tender Committee.
2.14.3 The Tender Committee may ask a Participant to clarify any item contained in a
Request for Clarification, including by way of meeting with some or all of the
Participants, in a joint meeting or in separate meetings.
2.14.4 Any responses of the Tender Committee to Requests for Clarification will be
provided in writing by the Tender Committee by e-mail to all of the Participants
(to the e-mail addresses of the Authorised Representatives) as a PDF file, without
disclosing the identity of the Participant asking the question. The Tender
Committee shall not be bound by, and Participants shall not rely on, any oral
interpretation or clarification of the Pre-Qualification Documents.
2.14.5 Answers will be provided only to substantive questions which the Tender
Committee considers, in its sole discretion, would have an effect on Pre-
Qualification Submissions.
2.14.6 Receipt of Requests for Clarification submitted by Pre-Qualification
Submissionsthe Participants in accordance with the provisions of Section 2.14.1
will not derogate from the rights and discretions of the Tender Committee in any
way. Without derogating from the above, the Tender Committee shall be entitled,
to exercise its rights under Section 2.15 (Addenda) whenever it is of the opinion
that the Pre-Qualification Documents or any parts thereof require amendment.
2.14.7 Any amendment of the Pre-Qualification Documents made in writing by the
Tender Committee, if any, and answers in writing to Requests for Clarifications
as set out above, shall be published by the Tender Committee, as an Addendum to
this Invitation, in accordance with the provisions of Section 2.15 (Addenda).
Upon the publication of such an Addendum, all the said amendments or answers
that will be set forth will constitute an integral part of the Pre-Qualification
Documents.
2.15 Addenda
2.15.1 Notwithstanding any of the provisions of this Invitation, and without derogating
from the discretion of the Tender Committee under the provisions of Section 2.18
(Reservation of Rights), the Tender Committee reserves the right, at any time up
to the Pre-Qualification Submission Date, to revise, modify, amend, clarify, add,
eliminate or otherwise change the provisions of the Pre-Qualification Documents
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or any part thereof, including any instruction, requirement, specification,
evaluation criteria or date contained therein. Such revisions, if any, shall be
announced by written Addenda to the Pre-Qualification Documents which shall
constitute an integral part of the Pre-Qualification Documents ("Addenda" and
any one thereof an "Addendum").
2.15.2 No clarification or amendment to the Pre-Qualification Documents shall be
binding unless issued by the Tender Committee in writing in the form of an
Addendum.
2.15.3 Each Addendum will be given a separate number by the Tender Committee and
will be sent in writing to the Participants by the Tender Committee, by email to
the Authorized Representatives. Notwithstanding the above, each Participant shall
be responsible for monitoring the publication of Addenda on IEC’s website on a
regular basis and for confirming that any such Addenda have been received by its
Authorized Representative.
2.15.4 Each Participant will be required to confirm to the Tender Committee the receipt
of each Addendum, by no later than two (2) business days following receipt
thereof, by having its Authorised Representative sign an “Acknowledgment”
form, which will be attached by the Tender Committee to every Addendum. In
addition, Participants will be required to acknowledge receipt of all Addenda in
their Pre-Qualification Submissions, specifically detailing the number and date of
receipt of each Addendum as part of Pre-Qualification Form A, as well as by
submitting the signed acknowledgments to their Pre-Qualification Submissions.
2.15.5 Without derogating from the generality of the provisions of Section 1.5
(Anticipated Schedule), the Pre-Qualification Submission Date may be postponed
by such number of days as shall be necessary in the opinion of the Tender
Committee and/or any person authorized by it, inter alia, in order to enable
Participants to revise their Pre-Qualification Submissions and/or any part thereof,
as a result of any Addenda issued. The announcement of such new date, if any,
will be included in an Addendum, and an update notice will also be published on
IEC’s website.
2.16 No Conflict of Interest
2.16.1 Each Participant represents that it does not have any conflict of interest or
suspicion of conflict of interest, of any type and kind whatsoever, in connection
with the purchase of the Transferred Facilities and undertakes that throughout the
Pre-Qualification Process, it will not have any such conflict of interest. If any
such conflict of interest arises, the applicable Participant undertakes to notify the
Tender Committee to that effect immediately.
2.16.2 Each Participant undertakes to bring to the attention of the Tender Committee any
information that may be relevant to the Tender Committee’s determination as to
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whether a Participant has or is suspected of having a conflict of interest as stated
above.
2.16.3 The decision as to whether a Participant has a conflict of interest, or is suspected
of having a conflict of interest, is subject to the Tender Committee’s sole and
exclusive discretion.
2.16.4 The Tender Committee reserves the right not to select a Participant and/or to
cancel its announcement as an Eligible Participant, if such Participant has or is
suspected of having, directly or indirectly, a conflict of interest.
2.16.5 The provisions of this Section 2.16 will apply to any Member, and each Member
will be required to comply with the provisions of this Section 2.16.
2.17 Advisors to the Tender Committee in the Pre-Qualification Stage
2.17.1 The list of Advisors to the Tender Committee in connection with this Invitation
and the Pre-Qualification Stage is set out in Appendix 5 to this Invitation
(“Advisors”).
2.17.2 Participants and/or any Participating Entity shall be prohibited from employing,
engaging, or obtaining services in connection with the Pre-Qualification Process
from any person or Entity that has provided or will provide the Tender Committee
and/or IEC with services in connection with this Invitation and/or the Pre-
Qualification Process, in whole or in part, including the Advisors, other than with
after receiving an advance written approval from the Tender Committee.
2.17.3 The Tender Committee will be entitled, at its sole and exclusive discretion, to
disqualify Participants (or any Participating Entity) which do not comply with the
provisions of this Section 2.17.
2.18 Reservation of Rights
Without derogating from the provisions Section 8.8 (Additional Prerogatives of the
Tender Committee), the Tender Committee reserves the right to annul the Sale Process,
or any part thereof, including the Pre-Qualification Stage; to reject any Pre-Qualification
Submission; not to accept the Pre-Qualification Submission awarded with the highest
Final Score; not to accept any of the Pre-Qualification Submissions; and to conduct the
Pre-Qualification Stage in any manner the Tender Committee deems fit; all subject to the
provisions of the Regulations.
2.19 Receipt of Approvals From the Competent Authorities
2.19.1 Participants are required to obtain, at their sole expense, all the approvals,
consents and licences required under any Applicable Law from any Competent
Authority for the purpose of entering into the Sale Contract and the operation of
the Transferred Facilities (including with respect to the assignment to the
Purchaser of agreements between IEC and third parties in connection with the
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Transferred Facilities, and to obtain the required consents, if any, from those third
parties) (the “Required Approvals”).
2.19.2 Without derogating from the foregoing, the Participants will be required, inter
alia, to:
(a) Comply with all of the qualification conditions for obtaining electricity
generation licences for the Ramat Hovav Transferred Facilities pursuant to the
provisions of the Electricity Sector Law and the regulations enacted
thereunder.
It is hereby clarified, that in order to comply with the requirement, the Bidders
will be required, within the Tender Stage, to include an undertaking from the
Members thereof to inject a shareholder equity with a minimum value into the
Bidder, all in accordance with the provisions of the Tender Documents;
(b) Obtain an approval, if necessary, from the ILA (including compliance with
the provisions of the Israel Lands Law and the procedures of the ILA, and
including with respect to the conferral of rights in real estate upon a Foreign
Entity); and
(c) Obtain an approval, if necessary, from the Competition Authority, including,
to the extent required, consultation with the Concentration Committee.
2.19.3 In addition, the Bidders will be required to obtain, at their own responsibility and
expense, pre-rulings from the following governmental authorities:
(a) The Competition Authority (including, to the extent required, after having
fulfilled the duty of consultation with respect to economy-wide and sector-
wide centralization, with the Concentration Committee and with the
Competition Commissioner, as relevant) ("Competition Authority's Pre-
Ruling") and
(b) The ILA (including compliance with the provisions of the Israel Lands Law
and the procedures of the ILA, and including with respect to the conferral of
rights in real estate upon a Foreign Entity) ("ILA's Pre-Ruling").
(Together: the "Pre-Rulings").
2.19.4 The Bidders are required to obtain the Pre-Rulings until the following deadlines
and neither the Bidders, nor any other Entity on their behalves, will have any
complaint, demand or claim against IEC in respect of the receipt or non-receipt
thereof:
(a) The Competition Authority's Pre-Ruling shall be obtained and submitted by
the Bidder to the Tender Committee no later than the Bids Submission Date.
Without derogating from the foregoing, the Participants are required to submit
within their Pre-Qualification Submission an affidavit with regard to
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participation of Concentrated Entities in the Pre-Qualification Process, in
form Pre-Qualification Form H1.
A Bidder which has not, by the Bids Submission Date, obtained the
Competition Authority's Pre-Ruling, will not be entitled to submit a Bid, and
if a Bid is submitted by it, it will be disqualified outright, and such Bidder will
not be entitled to continue to participate in the Tender Stage;
(b) The ILA's Pre-Ruling shall be obtained and submitted by the Bidder to the
Tender Committee no later than the Bids Submission Date.
In case where the Bidder has not, by the Bids Submission Date, obtained the
ILA's Pre-Ruling by the Bids Submission Date,, it will be required, and if it
has been announced as the Successful Bidder, it will be required to obtain the
Required Approval from the ILA by the date which isno later than fourteen
(14) days following the its announcement of as the Successful Bidder by the
Tender Committee, and asBidder, as a pre-condition for the signature of the
Sale Contract by IEC. Without derogating from any other prerogative of the
Tender Committee pursuant to this Invitation and the Tender Documents, it is
hereby clarified that the Tender Committee and/or IEC will be entitled, at
their sole discretion, to postpone the final date for the presentation of the
Required Approval from the ILA by the Successful Bidder.
2.19.5 Without derogating from the foregoing and from the Bidder's responsibility to
approach the relevant Competent Authority for the receipt of the Required
Approvals as set out above, it is hereby clarified that IEC will be entitled to
forward the Pre-Qualification Submissions to the following authorities for
examination: (a) the Competition Authority (the Antitrust Commissioner and the
Concentration Committee); (b) the Electricity Authority; and (c) the ILA
(including the Ministry of Defense and the Ministry of Foreign Affairs, which
advise the ILA with respect to the grant of rights to a Foreign Entity). If the IEC
receives any response and/or input from the Competent Authorities with regard to
any Bidder, the IEC will be entitled to inform the Bidder with such a response,
and the Bidders will be required to act according to the instructions of the IEC/
the Competent Authority in this regard.
2.19.6 Without derogating from the foregoing, by submitting the Pre-Qualification
Submission, each Participant confirms that it is aware that the grant of
rights in the Site real estate to a Foreign Entity is subject, inter alia, to
obtaining the approval of the Chairman of the ILA, pursuant to a
recommendation by a subcommittee of the Israel Lands Council and after
consultation with the Minister of Defense and the Foreign Minister, and is
further subject to the provisions of Professional Procedure No. 05.02M.
2.19.7 Without derogating from the foregoing and from any other prerogative of the
Tender Committee, the Tender Committee and/or IEC reserve the right, at any
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point and at their sole discretion, to make changes in the procedure and/or the
requirements for obtaining the Required Approvals and/or the Pre-Rulings,
including cancellation and/or waiver of the requirement, and no Participant and/or
Eligible Participant and/or Bidder and/or person or Entity on their behalf will
have any complaint, claim or demand in connection therewith.
3. GENERAL PROVISIONS RELATING TO PARTICIPANTS
3.1 The Participant
3.1.1 A Participant shall mean: (i) a single Entity; or (ii) up to four Entities, other than
an Entity as specified in Section 3.3.3 below, that have joined together into a
single group (hereinafter: “Group” and "Participant" respectively).
3.1.2 Any Pre-Qualification Submission that is submitted in the name of or by a Group,
and any other document that will be signed or submitted in the name of a Group
as part of the Pre-Qualification Process, will be binding upon each and all of the
Members of such Group, jointly and severally.
3.1.23.1.3 Without derogating from the provisions of Section 3.2.4 below, it is
hereby clarified that in case the Participant is a new established Entity (including
a SPV and a limited partnership), incorporated after July 15, 2018SPV (including
limited partnership), it shall not be considered as a single Entity, for the purpose
of this Pre-Qualification Process, but it shall be considered as a Group, and its
shareholders or partners shall be considered as Members, and all relevant
provisions of the Invitation shall apply.
3.2 Formation of a Single-Purpose Vehicle
3.2.1 Following completion of the Pre-Qualification Process, in order to participate in
the Tender Process and to submit a Bid, each Eligible Participant that is a Group,
and each foreign Eligible Participant, will be required to form a SPV new entity,
incorporated under the laws of Israel, one of the purposes of which shall be the
participation in the Tender Process (the "Special-Purpose Vehicle" or "SPV").
3.2.2 For the avoidance of doubt, an Eligible Participant that consists of one Israeli
Entity shall not be required to establish an SPV, but it will be entitled to do so if it
holds 100% of the SPV.
3.2.3 Without derogating from the provisions of Section 3.10 (Changes in the
Participant and/or in the Eligible Participant), the shares and other interests in
the SPV may be held only by Members who participated, through the Participant,
in the Pre-Qualification Submission, and were approved by the Tender
Committee pursuant to the Pre-Qualification Process.
3.2.4 Nothing shall preclude a Participant from incorporating an SPV as stated, for the
purpose of submitting the Pre-Qualification Submission, and the provisions of
Section 3.1.3 will apply.
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3.3 Members of the Participant
3.3.1 Members of a Participant shall mean each of the Entities committed to hold
shares or other interests in the Participant (the "Member").
3.3.2 Each of the Members must be a corporation, which is lawfully incorporated in its
country of incorporation. For the avoidance of doubt, private individuals cannot
participate in the Pre-Qualification Process and/or in the Sale Process.
3.3.3 A Member cannot be a SPV or an entity which was incorporated after the date
which is three (3) months prior to the Pre-Qualification Submission Date.
3.3.4 A Member may participate in only one Pre-Qualification Submission.
3.3.5 In cases where the Participant is a single Entity, that Entity will also be
considered a “Member” for the purposes of this Invitation, and the provisions that
apply to a “Member” will also apply to it, mutatis mutandis.
3.3.6 The provisions of this Invitation that apply or refer to Members will also apply, to
the extent relevant and mutatis mutandis, to the Controlling Shareholders, the
directors and the Position Holders of a Member, unless otherwise stated.
3.4 Major Subcontractor
3.4.1 “Major Subcontractor” shall mean an Entity with which the Participant engages
in an agreement, in which such Entity undertakes to provide the Participant with
all of the required operation and maintenance services of the Transferred
Facilities, following the Handover (if the Participant is declared to be the
Purchaser).
3.4.2 A Major Subcontractor need not be a Member.
3.5 Compliance With the Provisions of the Transactions With Public Entities Law
Each Participant and each Member which is a corporation that is a “resident of Israel,” as
this term is defined in the Income Tax Ordinance [New Version] is required to comply
with the following requirements pursuant to the Transactions with Public Entities Law:
3.5.1 To hold a valid certificate, issued by a tax assessing officer or an accountant, with
respect to keeping account books as required by Law pursuant to the provisions of
the Income Tax Ordinance [New Version] and the Value Added Tax Law, 1975
(“the VAT Law”).
3.5.2 To hold a valid certificate, issued by an assessing officer or an accountant, with
respect to reporting to the assessing officer on its income and to the Director of
VAT on transactions that are subject to tax under the VAT Law.
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3.5.3 To comply with the requirements of Section 2B of the Transactions with Public
Entities Law, with respect to the payment of minimum wage and employment of
foreign workers.
3.5.4 To comply with the requirements of Section 2B1 of the Transactions with Public
Entities Law, with respect to the Equal Opportunities for Persons with Disabilities
Law, 1998.
3.6 Absence of Connection to Countries With Which Israel Has No Diplomatic
Relationsa State Which Does Not Have Diplomatic Relations With the State of
Israel
3.6.1 A Participant, each Participating Entity and each Controlling Shareholder,
director, and Position Holder of the Participant and/or of any Participating Entity
may not be a citizen or a resident of a Country With Which Israel Has No
Diplomatic Relations, or a corporation that is incorporated in such a country any
Interested Party including the office holders thereof involved in the Pre-
Qualification Process, in the Tender Process or in the Sale Process (including
individuals) are not residents or citizens of a state which does not have diplomatic
relations with the State of Israel.
3.6.2 In this regard, in the case of a Participant or a Participating Entity that is a Private
Investment Fund, the compliance of the general partner/the managing Entity of
the fund and each of its Principals principals with the condition set forth above
will be examined (without examining the limited partners/the investors in the
fund).
3.6.23.6.3 The attention of the Participants is directed to the applicability of the
provisions of the Trading with the Enemy Act 1939, the Law on the Struggle
Against Iran's Nuclear Program, 2012 and the Prevention of Distribution and
Financing of Weapons of Mass Destruction Law, 2018, to each Participating
Entity.
3.6.4 For the purpose of this Section 3.6 only, "Interested Party" shall mean with
respect to Entity1: (a) any Entity or individual directly holding at least 15% of any
of the Means of Control of Entity1 (in this definition: "Entity2"); (b) any Entity
or individual Holding at least 70% of any of the Means of Control of Entity2; (c)
the CEO of Entity1; or (d) any of the directors of Entity1.
3.7 Absence of a Criminal Record
The Participant, the Participating Entity and each of the Controlling Shareholders, the
Interested Parties, the directors and the Position Holders of the Participant and of each
Participating Entity shall not have been convicted in a criminal case (and, to the best of
its knowledge, no proceedings for the conviction of any thereof shall be under way) of an
Offense.
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3.8 Undertaking to Maintain Confidentiality
3.8.1 Each Participant and each Participating Entity are required to sign an Undertaking
to Maintain Confidentiality, in accordance with Pre-Qualification Form G of
this Invitation, and to submit it as part of the Pre-Qualification Submission.
3.8.2 Without derogating from the provisions of the Undertaking to Maintain
Confidentiality, by submitting the Pre-Qualification Submission, each Participant
undertakes to maintain absolute confidentiality with respect to all of the
information, data and documents pertaining to IEC and/or to the Transferred
Facilities which were provided to it as part of the Pre-Qualification Process and
the Tender Process.
3.9 Participation in One Pre-Qualification Submission
3.9.1 Each Participant may submit only one Pre-Qualification Submission.
3.9.2 Each Participating Entity may participate in only one Pre-Qualification
Submission.
3.9.3 For the purposes of this Section 3.9, the terms "Participant" and “Participating
Entity" shall be deemed to include every Related Entity of each of the foregoing.
3.10 Changes in a Participant and/or in an Eligible Participant
3.10.1 The Tender Committee will be entitled, until the deadline that will be determined
by it within the Tender Documents, to allow changes with respect to a Participant
or an Eligible Participant, as applicable, and with respect to each Participating
Entity, including the replacement, addition, change in or deletion of any such
Entity, or a change in the joint Anticipated Holdings for each such Entity,
pursuant to a request in writing submitted to the Tender Committee by the
Participant and/or the Eligible Participant, as applicable ("Request Regarding
Changes in Group Composition").
3.10.2 For the avoidance of doubt, the Tender Committee will be entitled to accept or to
reject such a Request, at its absolute and exclusive discretion, which will be
exercised, inter alia, in light of the stage of the Sale Process at the time.
3.10.3 Without derogating from the generality of the foregoing, the Tender Committee
will reject a Request Regarding Changes in Group Composition, if, as a result of
the change requested:
3.10.3.1 The Participant/ the Eligible Participant, as applicable, does not
comply with any of the Pre-Qualification Requirements, including
with the requirement set out in Section 3.3.3 above;
Or –
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3.10.3.2 Subject to provisions of Sections 6 (Ranking of the Participants
(Optional)), the new Final Score that the Participant/ the Eligible
Participant receives as a result of such a change is lower in such a
way that the new Final Score is not sufficient for its declaration as
an Eligible Participant.
3.10.4 A Participant/an Eligible Participant will not be entitled to make any change in
the composition of its Members and/or in the identity of a Guarantor (if relevant)
and/or in the Anticipated Holdings unless it has received the approval of the
Tender Committee, in advance and in writing.
3.10.5 The Tender Committee will be entitled to disqualify a Participant's Pre-
Qualification Submission and/or its declaration as an Eligible Participant and/or
its Bid (as applicable) if such Participant, notwithstanding the foregoing, has
made the aforesaid changes without having obtained the approval of the Tender
Committee as required.
3.10.6 In any case where the Tender Committee approves a Request Regarding Changes
in Group Composition, after one or more of the Required Approvals have been
obtained, the Participant/Eligible Participant will be required, at its own expense,
to contact the relevant Competent Authority and to obtain from it, within a period
of time that the Tender Committee will determine, and, in any event, no later than
the Bids Submission Date or no later than 14 days after the announcement of the
Successful Bidder (as this date may be postponed by the Tender Committee
and/or IEC, according to the provisions of Section 2.19.4(b) above) as applicable,
a new approval with respect to the new composition of the Participant/Eligible
Participant, as applicable.
3.10.7 Without derogating from the provisions of this Section 3.10, the Tender
Committee will be entitled, at any time during the Sale Process, at its absolute and
exclusive discretion, including at the request of any Competent Authority, and
without this conferring upon any Participant/Bidder a right to delay the Sale
Process, to allow a Participant/Bidder to join the Sale Process or to add one or
more new or existing Participants/Bidders to another Participant/Bidder, and upon
the granting of approval as stated, the Participant/Bidder that has been added will
be deemed to have been a party to the application as it was filed, for all intents
and purposes. An approval as stated may be made contingent upon conditions.
3.11 Participation of Israeli Government Company
An Israeli Government Company shall not be permitted to participate in the Sale Process,
whether as a Participant or as a Participating Entity.
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3.12 Demonstration of compliance with the requirements
3.12.1 Each Member will specify its share in the applicable Participant, including its
anticipated holdings in the SPV (hereinafter: the “Anticipated Holdings”), in the
Pre-Qualification Submission Letter (Pre-Qualification Form A).
3.12.2 Each Participant will attach to Pre-Qualification Form A, a group chart,
demonstrating the composition of its Pre-Qualification Submission, including
each Participating Entity and its role, and the connection between the Entities, if
any.
3.12.3 In order to demonstrate compliance with the provisions of Section 3.1 (The
Participant), each Participant shall submit Pre-Qualification Form B, duly
completed and signed. In addition, each Participant that is a corporation will
append a certified copy of an updated certification attesting to its existence as a
corporation.
3.12.4 In order to demonstrate compliance with the provisions of Section 3.3 (The
Member), each Member shall submit Pre-Qualification Form C, duly completed
and signed. In addition, each Member will append a certified copy of an updated
certification attesting to its existence as a corporation.
3.12.5 Each Related Entity shall submit Pre-Qualification Form D, duly completed and
signed. The Related Entity shall detail, within this Form, its relation to the
Participant/ Member, and append a structure chart demonstrating this relation. In
addition, each Related Entity will append a certified copy of an updated
certification attesting to its existence as a corporation.
3.12.6 In order to demonstrate compliance with the provisions of Section 3.4 (Major
Subcontractor), the Major Subcontractor shall submit Pre-Qualification Form E,
duly completed and signed. In addition, the Major Subcontractor will append to
this Form a copy of the agreement signed by the Participant and the Major
Subcontractor and a certified copy of an updated certification attesting to its
existence as a corporation.
3.12.7 In order to demonstrate compliance with the provisions of Section 3.5
(Compliance with the Requirements of the Transactions with Public Entities
Law), each Participant that is a single Entity, and each Member of a Participant
that is a Group, shall submit Pre-Qualification Form H, duly completed and
signed, and the relevant certifications, listed on Pre-Qualification Form H.
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4. PROFESSIONAL PRE-QUALIFICATION REQUIREMENTS
Each Participant will be required to demonstrate compliance with the Professional Pre-
Qualification Requirement set out in Section 4.1 (Operation and Maintenance Experience) and
also with at least one of the Professional Pre-Qualification Requirements set out in
Sections 4.2, 4.3 and 4.4 below, as follows:
4.1 Operation and Maintenance Experience
4.1.1 Each Participant is required to demonstrate that in the last 7 (seven) years, an
Experience Provider on its behalf has proven operation and maintenance
experience with respect to the operation and maintenance of Power Plant(s) for
the generation of electricity, provided that they are not Renewable Energy Power
Plant(s) (“Power Plant(s)”), with a cumulative installed power that appears in the
generation license(s) (insofar as such license(s) is required) of at least 200 (two
hundred) megawatts (MW), throughout a continuous period of a least five four
years, between October 1, 2012 and the Pre-Qualification Submission Date
(Hereinafter: "Operation and Maintenance Experience").
4.1.2 Form of Submission: In order to demonstrate compliance with this Section 4.1
(Operation and Maintenance Experience), the Experience Provider shall submit
Pre-Qualification Form I1, duly completed and signed.
4.2 Entrepreneurship Experience
4.2.1 The Participant is required to demonstrate that in the last 10 (ten) years, an
Experience Provider on its behalf has proven entrepreneurship experience in
Entrepreneurship in at least one of the following:
4.2.1.1 Entrepreneurship of Power Plant(s), with a cumulative installed power
that appears in the generation license(s) (insofar as such license(s) is
required) of at least 200 (two hundred) megawatts (MW); or
4.2.1.2 Entrepreneurship of one or more Infrastructure Projects, with a
construction cost for a single Infrastructure Project of at least NIS
1,000,000,000 (one billion New Israeli Shekels) (not including VAT),
or a cumulative construction cost for, at the most, up to 4 (four)
Infrastructure Projects, of at least NIS 2,000,000,000 (two billion
New Israeli Shekels) (not including VAT).
(Hereinafter: "Entrepreneurship Experience")
4.2.2 For the purpose of this Section, "Entrepreneurship" refers to the financial close
of a project, and in the case of self-financing – winning a
tender/procedure/signing an engagement contract/obtaining a license/concession
for the implementation of the project.
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4.2.3 For the purpose of this Section, the Experience Provider shall demonstrate
Entrepreneurship Experience as stated above, during the period between October
1, 2009 and the Pre-Qualification Submission Date.
4.2.4 Form of Submission: In order to demonstrate compliance with this Section 4.2
(Entrepreneurship Experience), the Experience Provider shall submit Pre-
Qualification Form I2, duly completed and signed.
4.2.44.2.5 It is hereby clarified that projects that are presented by the Participant
for the purpose of demonstrating compliance with this 4.2 (Entrepreneurship
Experience) may not be presented by the Participant for the purpose of
demonstrating compliance with Section 4.4 (Experience in Financial Close)
below.
4.3 Ownership Experience
4.3.1 The Participant is required to demonstrate that in the last 7 (seven) years, an
Experience Provider on its behalf has proven ownership experience in at least one
of the following:
4.3.1.1 Ownership of Power Plant(s), with a cumulative installed power that
appears in the generation license(s) (insofar as such license(s) is
required) of at least 200 (two hundred) megawatts (MW), for at least
two continuous years; or
4.3.1.2 Ownership of one Infrastructure Project, including ownership of a
concessionaire under a concession agreement, the construction cost of
which is at least NIS 1,000,000,000 (one billion New Israeli Shekels)
(not including VAT), or with a cumulative construction cost for, at the
most, up to 4 (four) Infrastructure Projects, of at least NIS
2,000,000,000 (two billion New Israeli Shekels) (not including VAT),
for at least two continuous years.
(Hereinafter: "Ownership Experience")
4.3.2 For the purpose of this Section, the Experience Provider shall demonstrate
Ownership Experience as stated above, during the period between October 1,
2012 and the Pre-Qualification Submission Date.
4.3.3 For the purpose of this Section, starting date of ownership will be considered as
the earliest of the following:
4.3.3.1 The date on which the property was recorded in the books of the
Entity with Ownership Experience; or
4.3.3.2 The date of receipt of a permanent generation license for the private
generation of electricity under the Electricity Sector Law; or
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4.3.3.3 The date of creation of a reference document with respect to the start
of commercial operation of the project.
("Starting Date of Ownership")
4.3.4 It is hereby clarified that for the purpose of this Section 4.3 (Ownership
Experience), the Starting Date of Ownership may be recorded prior to October 1,
2012,
4.3.5 Form of Submission: In order to demonstrate compliance with this Section 4.3
(Ownership Experience), the Experience Provider shall submit Pre-Qualification
Form I3, duly completed and signed.
The Experience Provider shall append to this Pre-Qualification Form I3Form,
the relevant document for the demonstration of Starting Date of Ownership, as
follows:
4.3.5.1 An accountant’s certificate; or
4.3.5.2 A permanent generation license for the private generation of
electricity under the Electricity Sector Law; or
4.3.5.3 A reference document with respect to the start of commercial
operation of the project.
4.4 Experience in Financial Close
4.4.1 The Participant is required to demonstrate that in the last 7 (seven) years, an
Experience Provider on its behalf has proven experience inreached a financial
close of an Infrastructure Project, the construction cost of which is at least NIS
1,000,000,000 (one billion New Israeli Shekels) (not including VAT), or with a
cumulative construction cost for, at the most, up to 4 (four) Infrastructure
Projects, of at least NIS 2,000,000,000 (two billions New Israeli Shekels) (not
including VAT), in Israel and/or the United States of America and/or OECD
Countries (Hereinafter: "Experience in Financial Close").
4.4.2 For the purpose of demonstrating compliance with this Section 4.4 (Experience in
Financial Close), the Experience Provider shall prove, inter alia, that it has
reached a financial close, as stated above, during the period between October 1,
2012 and the Pre-Qualification Submission Date.
4.4.3 Form of Submission: In order to demonstrate compliance with this Section 4.4
(Experience in Financial Close), the Experience Provider shall submit Pre-
Qualification Form I4, duly completed and signed.
4.4.34.4.4 It is hereby clarified that projects that are represented by the Participant
for the purpose of demonstrating compliance with this Section 4.4 (Experience in
Financial Close) may not be represented by the Participant for the purpose of
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demonstrating compliance with Section 4.2 (Entrepreneurship Experience)
above.
4.5 General Instructions With Respect to Demonstration of Compliance With the
Professional Pre-Qualification Requirements
4.5.1 A Participant may demonstrate compliance with the Professional Pre-
Qualification Requirements by itself or through a Related Entity thereto.
4.5.2 Notwithstanding the foregoing, in cases where the Participant is a Group, it is also
possible to demonstrate compliance with the Professional Pre-Qualification
Requirements through up to two Members (at the most), whether themselves or
through one Related Entity each, where each such Member demonstrating
compliance will itself hold at least 25% (twenty-five percent) of the Anticipated
Holdings in the Participant.
4.5.3 Without derogating from the foregoing, the Participant’s compliance with the
Professional Pre-Qualification Requirement set forth in Section 4.1 (Operation
and Maintenance Experience) above, and this requirement only, can also be
proved through a Major Subcontractor, with which the Participant shall engage in
an agreement, where the Major Subcontractor possesses the relevant experience.
4.5.34.5.4 In addition to the aforesaid, for the purpose of demonstrating
compliance with the Professional Pre-Qualification Requirements, an Experience
Provider may present and rely on a referenced project which was executed by
another Entity, as follows:
4.5.3.14.5.4.1 In order to demonstrate compliance with Section 4.1 (Operation
and Maintenance Experience), the Experience Provider may present a
project that was held by it, directly or indirectly, as a joint venture or as
a jointly held company, provided that the Experience Provider held, at
least, 50% (fifty percent) of the share capital of the joint venture or the
held company (as is relevant). In such a case, the Experience Provider
will accordingly be credited with the entire amount of the experience
attributed to the joint venture or the held corporation (as is relevant).
4.5.3.24.5.4.2 In order to demonstrate compliance with Section 4.24.1
(Entrepreneurship Experience) and with Section 4.3 (Ownership
Experience) and with Section 4.4 (Experience in Financial Close), the
Experience Provider may present a project that was held by it, directly
or indirectly, as a joint venture or as a jointly held company, provided
that the Experience Provider held, at least, 25% (twenty five percent) of
the share capital of the joint venture or the held company (as is
relevant). In such a case, the Experience Provider will accordingly be
credited with the entire amount of the experience attributed to the joint
venture or the held corporation (as is relevant).
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4.5.44.5.5 In cases where the construction cost of Power Plant(s) and/or
Infrastructure Project(s) being relied upon in connection with the above
requirements is stated in foreign currency under the relevant agreements
regarding such Power Plant(s) and/or Infrastructure Project(s), the amount of such
construction cost in foreign currency will be converted into New Israeli Shekels
according to one of the following rates of exchange:
4.5.4.14.5.5.1 In the entrepreneurship Entrepreneurship of Power Plant(s)
and/or Infrastructure Project(s) (Section 4.2 above) – the rate of
exchange that was published by the Bank of Israel as of the date of
financial close of the project (and in the case of self-financing – the
date of winning a tender/ procedure/ signing an engagement contract/
obtaining a license/ concession for the implementation of the project,
whichever is earlier).
In cases where no rate of exchange as stated was published on the
date of financial close, the construction cost will be converted into
New Israeli Shekels according to the last rate of exchange that was
published by the Bank of Israel before the date of financial close of
such project.
4.5.4.24.5.5.2 In the ownership and/or financial close of Power Plant(s) and/or
Infrastructure Project(s) (Sections 4.3 and 4.4 above) – the rate of
exchange that was published by the Bank of Israel as of the signing
date of the finance documents/ the sale agreement for the project (and
in cases where no rate of exchange as stated was published on that
date, according to the last rate of exchange that was published by the
Bank of Israel before the signing date of the finance documents/ the
sale agreement).
5. FINANCIAL PRE-QUALIFICATION REQUIREMENTS
Each Participant is required to demonstrate its and its Members' compliance (by themselves or
through a Guarantor as described in Section 5.7 below), with all the applicable Financial Pre-
Qualification Requirements:
5.1 Equity
Each Member that is not a Financial Entity is required to demonstrate Equity of not less
than NIS 9,000,000 (nine million New Israeli Shekels) for each 1% (one percent) of
Anticipated Holdings in the Participant, based on one of the following: (a) its most recent
annual Financial Statements (provided these are not earlier than for year 2018); or (b) its
most recent quarterly Financial Statements (provided these are not earlier than for year
2019).
If the Participant is a single Entity, the calculation of the minimum Equity with respect to
it will be performed according to Anticipated Holdings of 100% (one hundred percent).
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5.2 Turnover
Each Participant is required to demonstrate that the Participant's Weighted Turnover (or
attributed to the Participant, if the Participant is a Group, as set forth in Section 5.2.1
below) is not lower than the Minimal Turnover Required (as such term is defined in
Section 5.2.3 below).
5.2.1 Participant's Weighted Turnover
The Participant's Weighted Turnover shall be calculated in the following manner:
Participant’s Weighted Turnover = ∑ 𝑖=𝑛𝑖=1 𝑊𝑇𝑂𝑖 ∗ 𝐻𝑆𝑖
Where:
WTOi = Member(i)'s Average Turnover (as such term is defined in
Section 5.2.2.2)
HSi = the Anticipated Holdings of Member (i) in the Participant.
n= the number of Members in the Participant.
("Participant's Weighted Turnover")
5.2.2 Member's Average Turnover
The weighted turnover of each Member will be calculated as follows:
5.2.2.1 For any Member, the Anticipated Holdings of which are lower than
10% (ten percent), the Member's Average Turnover shall be deemed
as 0 (zero).
5.2.2.2 For any Member, the Anticipated Holdings of which exceed 10% (ten
percent), the Member's Average Turnover shall be calculated as
follows:
ATO = (3*TOt + 2*TOt-1 + 1*TOt-2)/6
Where:
ATO = Member's Average Turnover
TOt = income turnover in year t
t = year 2018
("Member's Average Turnover")
5.2.3 Minimal Turnover Required
The minimal turnover required of the Participant is:
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5.2.3.1 Where all Members of the Participant are not Financial Entities – not
less than NIS 800,000,000 (eight hundred million New Israeli
Shekels).
5.2.3.2 Where one or more of the Members of the Participant is a Financial
Entity – the minimal turnover required of a Participant shall be as
follows:
X = A * 800,000,000
Where: A = the total Anticipated Holdings of the Members that are
not Financial Entities.
("Minimal Turnover Required")
5.3 Operating Cash Flow
Each Member which is not a Financial Entity, and whose Anticipated Holdings exceed
10%, will be required to demonstrate its compliance with either Section 5.3.1 or
Section 5.3.2 below:
5.3.1 The Average Operating Cash Flow of a Member that is not a Financial Entity, in
the last three fiscal years for the three (3) most recent audited Financial
Statements (provided that such are not earlier that for year 2016) is not negative
(either positive or equal to zero).
For the purposes of this section, the Member’s Average Operating Cash Flow will
be calculated as follows:
WCF = (3*CFt + 2*CFt-1 + 1*CFt-2)/6
Where:
WCF = Average Operating Cash Flow of a Member
CFt = The Member's annual operating cash flow from the relevant year, based on
the Member's respective Financial Statement for that year.
t = year 2018
("Average Operating Cash Flow of a Member")
5.3.2 In the event that the Average Operating Cash Flow of a Member that is not a
Financial Entity, is negative, the Member will be required to demonstrate that the
ratio between the absolute value of (a) and (b) below is less than 20% and more
than 0%:
(a) The Average Operating Cash Flow of the Member;
(b) its Equity as at the end of the Last Fiscal Year.
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0% < ABS[(3*CFt + 2*CFt-1 + 1*CFt-2)-6] / Et < 20%
Where:
CFt = the Member's operating cash flow of the relevant year, based on its
Financial Statements for that year
Et = Equity at the end of the year t
t = year 2018
ABS = absolute value
5.4 No “Going Concern Notice”
The most recent audited Financial Statements of each Member (even if relying on a
Guarantor) and each Guarantor shall not contain a “Going Concern Notice”.
5.5 Financial Entity (other than a Private Investment Fund)
Any Member which is a Financial Entity, other than a Private Investment Fund, will be
required to demonstrate its compliance with either Section 5.5.1 or 5.5.2 below:
5.5.1 Its equity (excluding minimal equity required by Law, to the extent relevant) was
not less than NIS 10,000,000 (ten million New Israeli Shekels) for each 1% (one
percent) of its Anticipated Holdings in the Participant, based on the Member's
Financial Statements for the Last Fiscal Year;
Or,
5.5.2 For each 1% (one percent) of its Anticipated Holdings in the Participant, it has
managed assets with a net worth of not less than NIS 100,000,000 (one hundred
million New Israeli Shekels), as at the end of the Last Fiscal Year.
5.6 Private Investment Fund
Any Member which is a Private Investment Fund will be required to demonstrate its
cumulative compliance with both Sections 5.6.1 and 5.6.2 below:
5.6.1 For each 1% (one percent) of its Anticipated Holdings, the amount of Unutilized
Commitments under its management is at least NIS 9,000,000 (nine million New
Israeli Shekels), as of 14 days prior to the Pre-Qualification Submission Date;
And,
5.6.2 For each 1% (one percent) of its Anticipated Holdings, the Fund has Assets Under
Management of not less than NIS 10,000,000 (ten million New Israeli Shekels),
as at the end of the Last Fiscal Year.
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5.7 Reliance on a Guarantor
5.7.1 Each Member may demonstrate compliance with the Financial Pre-Qualification
Requirements by relying on one Entity Controlling such Member (hereinafter:
“Guarantor”), provided that the Guarantor itself complies with all the Financial
Pre-Qualification Requirements, and provided that both the Member and its
Guarantor comply with the requirement under Section 5.4 (No "Going Concern
Notice") (in their entirety and cumulatively). A Member relying on a Guarantor
shall submit within the Pre-Qualification Submission, Pre-Qualification Form
L, duly signed and completed by the Guarantor.
5.7.2 In the event that: (a) the Guarantor is also a Member; or (b) the Guarantor is a
Guarantor parent company of more than one another Member of the Participant,
then, for the purpose of determining compliance with all Financial Pre-
Qualification Requirements, the Anticipated Holdings of such Guarantor in the
Participant will be deemed to include also all Anticipated Holdings of the
Member(s) seeking to rely on such Guarantor.
For example:
(a) If the Guarantor is a Member, which holds 15% of the Anticipated Holdings
in the Participant, and it is also a Guarantor of a Member which holds 35% of
the Anticipated Holdings in the Participant, then the Guarantor's Anticipated
Holdings for the purpose of determining compliance with all Financial Pre-
Qualification Requirements shall be 50%;
(a)(b) If the Guarantor is demonstrated as a Guarantor of one Member which
holds 35% of the Anticipated Holdings in the Participant, and of another
Member which holds 25% of the Anticipated Holdings in the Participant, then
the Guarantor's Anticipated Holdings for the purpose of determining
compliance with all Financial Pre-Qualification Requirements shall be 60%.
5.7.3 It is hereby clarified that in any of the cases described in Section 5.7.2 above,
there will be no double counting of equity, turnover and operating cash flow.
5.7.25.7.4 The provisions of this Section 5.7 will also apply, mutatis mutandis, to a
Member that seeks to rely on a Guarantor, where the referenced Guarantor is also
a Member. In such a case, the Anticipated Holdings of the referenced Guarantor
will be deemed also to include the Anticipated Holdings of the Member seeking
to rely on such Guarantor, which will be calculated proportionately (pro rata) to
the relevant Guarantor’s Holdings in that Member.
5.8 Demonstration of Compliance With the Financial Pre-Qualification Requirements
5.8.1 In order to demonstrate compliance with the Financial Pre-Qualification
Requirements, each Member and each Guarantor (as applicable) shall submit Pre-
Qualification Form J1, duly completed and signed.
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5.8.2 With respect to a Member (and/or a Guarantor, as applicable) that is a Financial
Entity (other than a Private Investment Fund), in order to demonstrate compliance
with the requirements of Section 5.5 above, such Member (and/or a Guarantor, as
applicable) shall submit Pre-Qualification Form J2, duly completed and signed.
5.8.3 With respect to a Member (and/or a Guarantor, as applicable) that is a Private
Investment Fund, in order to demonstrate compliance with the requirements of
Section 5.6 above, such Member (and/or a Guarantor, as applicable) shall submit
Pre-Qualification Form J3, duly completed and signed.
5.8.4 In order to demonstrate its compliance with the Financial Pre-Qualification
Requirements, the Member (and a Guarantor, as applicable) shall submit a
certification from its auditor, certifying the Member's (or the Guarantor's, as
applicable) compliance with all of the Financial Pre-Qualification Requirements,
in the form of Pre-Qualification Form K, in accordance with the consolidated (if
relevant) audited Financial Statements of the Member and/ or the Guarantor.
5.8.5 The Financial Statements based upon which the Member (or the Guarantor, as
applicable) demonstrates its compliance with the Pre-Qualification Requirements
shall be duly prepared and presented in accordance with one of the following sets
of accounting rules:
5.8.5.1 The rules of generally accepted accounting principles in Israel as
published by the Israel Accounting Standards Board, including the
guidelines for disclosure of the cash flow statement as published in
Opinion No. 51 – Statement of Cash Flows;
5.8.5.2 The rules of generally accepted accounting principles in the United
States (US GAAP) as published by the Financial Accounting
Standards Board (FASB) in the United States, including the
guidelines for disclosure of the cash flow statement as published in
ASC 230 Statement of Cash Flows;
5.8.5.3 The International Financial Reporting Standards (IFRS) as published
by the International Accounting Standards Board (IASB), including
the guidelines for disclosure of the cash flow statement as published
in IAS 7 – Statement of Cash Flows;
5.8.5.4 The rules of generally accepted accounting principles in one of the
OECD countries.;
5.8.5.5 The Hong Kong Financial Reporting Standards (HKFRS);
5.8.5.45.8.5.6 The Chinese Accounting Standards for Business Enterprises
(ASBEs).
5.8.6 An Entity whose Financial Statements are based on the rules of generally
accepted accounting principles in its country of origin, which are not listed above,
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but are equivalent to the abovementioned sets of accounting rules, will be
required to submit a specific written request to the Tender Committee to approve
reliance and submission of a certification by an auditor in accordance with such
Financial Statements, at least thirty (30) days prior to the Pre-Qualification
Submission Date. The Tender Committee will examine and decide on such a
request at its exclusive discretion. It is hereby clarified that the Tender Committee
will be entitled, but not obligated, at its sole discretion, to approve such reliance
without a submitted request, in case it would be approved within the certification
by an auditor, that the Financial Statements are based on the rules of generally
accepted accounting practice in its country of origin and are equivalent to the
abovementioned sets of accounting rules.
5.8.7 It is hereby clarified that the Participant and/or the Member and/or the Guarantor
need not to submit their Financial Statements within the Pre-Qualification
Submission.
5.8.8 In cases where a Member relies on a Guarantor, the Guarantor shall submit the
Letter of Guarantee (Pre-Qualification Form L).
5.9 Conversion of Currencies
All financial data that is included in the Pre-Qualification Forms will be submitted in
New Israeli Shekels (NIS). In any case where the data in the Financial Statements is not
presented in New Israeli Shekels, the relevant Entity will convert the financial data in
accordance with the following:
5.9.1 The turnover and the operating cash flow will be converted into New Israeli
Shekels according to the average rate of exchange for that year, as it appears in
the following table:
Currency Rate of exchange (NIS) for conversion of financial
data for the year:
Year 2016 2017 2018
1 US dollar (US$) 3.874 3.656 3.608
1 euro (€) 4.145 4.098 4.222
100 Japanese Yen (JPY) 3.264 3.183 3.246
1 Chinese Yuan
renminbi (CNY) 1.736 0.577 1.845 0.542 1.857 0.539
1 Hong Kong dollar
(HKD) 0.499 0.469 0.461
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5.9.2 The Equity equity will be converted into New Israeli Shekels according to the rate
of exchange as at December 31, 2018, as it appears in the following table:
Currency Rate of exchange (NIS) for conversion
1 US dollar (US$) 3.748
1 euro (€) 4.292
100 Japanese Yen (JPY) 3.411
1 Chinese Yuan
renminbi (CNY)
1.835 0.545
1 Hong Kong dollar
(HKD)
0.479
5.9.3 The Unutilized Commitments will be converted into New Israeli Shekels
according to the rate of exchange published by the Bank of Israel (BOI) on the
date which is 14 days prior to the Pre-Qualification Submission Date. If the BOI
does not publish a rate of exchange for a certain currency, then that currency will
be converted into EUR based on the rate published by the European Central Bank
(ECB) on the date which is 14 days prior to the Pre-Qualification Submission
Date, and that amount will be converted from EUR to NIS based on the rate
published by the BOI on such date. If for any reason the BOI or the ECB shall not
have published the relevant rates of exchange on the date which is 14 days prior
to the Pre-Qualification Submission Date, then the rates of exchange that will be
used for conversion shall be the latest rates published by the BOI and/or the ECB,
as applicable, prior to such date.
5.9.35.9.4 An Entity, the financial data of which are presented in currencies other
than US dollars (US$) or euros (€) or Japanese Yen (JPY) or Chinese Yuan
(CNY) or Hong Kong dollar (HKD), will be required to submit a specific written
request to the Tender Committee for the conversion of such other currency to
US$, at least thirty (30) days prior to the Pre-Qualification Submission Date. The
Tender Committee will examine and decide on such a request at its exclusive
discretion. It is hereby clarified that the Tender Committee will be entitled, but
not obligated, at its sole discretion, to approve such reliance without a submitted
request.
5.9.45.9.5 An Entity whose fiscal year, according to the Law of its domicile, ends
on a date other than December 31, will be required to submit a specific written
request to the Tender Committee in advance and to obtain its instructions with
respect to the fiscal years relevant to the examination, and for the purpose of
obtaining the conversion rates in accordance with other rates of exchange, at least
30 (thirty) days prior to the Pre-Qualification Submission Date. The request must
specify all of the relevant information, including the tables of exchange rates
upon which that Entity wishes to rely. The Tender Committee will examine and
decide on such a request at its exclusive discretion. It is hereby clarified that the
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Tender Committee will be entitled, but not obligated, at its sole discretion, to
approve such reliance without a submitted request.
6. RANKING OF THE PARTICIPANTS (OPTIONAL)
6.1 In case where more than 7 (seven) Pre-Qualification Submissions will be found to
comply with the Pre-Qualification Requirements as set forth in this Invitation, the Tender
Committee will be entitled, but not obligated, to examine the quality of the Participants
and to rank them in accordance with the criteria set forth in this Section 6 (the "Ranking
Process").
6.2 The criteria for the Ranking Process will be in accordance with the following formula:
TS = 0.6 * FR + 0.4 * PE
Where:
Description Weight
FR Financial financial
robustness
60%
PE Professional professional
experience
40%
TS Participant’s Final Score 100%
6.3 Criteria for Scoring – Financial Robustness
The financial robustness of the Participants will be scored by the Tender Committee
according to the table set out in Appendix 3.
The maximum score that can be cumulatively attained with respect to the above
parameters criteriafinancial robustness, as set out in Appendix 3, is 100 points, even in
the cases where the Participant’s cumulative score in all of the sections is more than 100
points.
6.4 Criteria for Scoring – Professional Experience
The professional experience of the Participants will be scored by the Tender Committee
according to the table set out in Appendix 3.
The maximum score that can be cumulatively attained with respect to the
criteriaprofessional experience, as set out in Appendix 3, is 100 points.
6.5 Ranking Process – General Provisions
6.5.1 Each Participant’s final score will be calculated by multiplying the cumulative
score in the professional experience section by 40%, and by multiplying the
cumulative score in the financial robustness section by 60% and adding the results
together (the "Final Score"). The ranking of the Participants will be determined
in accordance with the Final Score each Participant receives.
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6.5.2 In addition to the criteria set forth in Appendix 3above, the Tender Committee
will also be entitled to consider criteria of:
6.5.2.1 Absence of conflict of interest between the business and the affairs of
the Participant and the Member (if the Participant is a Group) and the
affairs of the State of Israel and of IEC; and
6.5.2.2 Any other consideration that results from the requirements of the
Competent Authorities and/or that is relevant to the Sale Process, at
the exclusive discretion of IEC, including with respect to each
Participant’s chances of obtaining the Required Approvals.
6.6 If the Tender Committee has exercised its powers as set forth in this Section 6, then,
from among the Participants that were found to comply with the Pre-Qualification
Requirements as stated, the 5 (five) Participants that received the highest Final
Score will be selected, and they will be the ones to be declared as Eligible
Participants and entitled to participate in the Tender Stage.
6.7 Notwithstanding the foregoing, the Tender Committee will be entitled, at its
exclusive discretion, to add to the five Participants as stated above, up to 2 (two)
additional Participants, which have received the highest Final Score after the Scores
of the 5 (five) Participants as stated above (that is, to determine that up to 2 (two)
additional Participants from among the Participants that were ranked sixth and
seventh, which will also be entitled to participate in the Tender Stage).
7. METHOD OF SUBMISSION
7.1 Compliance With the Requirements of the Invitation
Participants shall prepare their Pre-Qualification Submissions in strict conformity with
the requirements of this Invitation. Participants shall answer all applicable parts of the
Pre-Qualification Submission in an accurate and detailed manner, disclosing all the
information requested, as well as any additional information or data required to clarify,
substantiate and, in general, support the Pre-Qualification Submission.
7.2 No Unauthorized Modification
7.2.1 Participants shall not modify or supplement the instructions of this Invitation
(including the Pre-Qualification Forms). Unauthorized conditions, amendments,
limitations, modifications, supplements, reservations, disclaimers or provisions
attached to a Pre-Qualification Submission may result in the disqualification of
the Pre-Qualification Submission and the Participant.
7.2.2 Without derogating from the generality of the foregoing, the Tender Committee
will be entitled, at its discretion:
7.2.2.1 To make the review of the Pre-Qualification Submission contingent
upon the cancellation of any amendment, change, omission,
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reservations, stipulation or addendum and/or (as is relevant) the
completion and rectification of any deficiency, lack of clarity or
ambiguity as stated, within a period of time to be determined by the
Tender Committee; and/or
7.2.2.2 To examine the Pre-Qualification Submission while ignoring any
amendment, change, omission, reservations, stipulation or addendum
as stated.
7.3 Language of the Pre-Qualification Submission
All Pre-Qualification Submissions, including Pre-Qualification Forms, statements
contained therein and responses to Requests for Clarifications shall be in English.
Supporting documents and printed literature submitted by the Participants will be in
Hebrew or English only, and if they were originally drawn up in a different language –
they will be submitted in translation into Hebrew or English, certified by a notary.
7.4 Signing of the Pre-Qualification Submission
7.4.1 Each page of the Pre-Qualification Submission, including all Pre-Qualification
Forms and appendices, shall be duly signed by the relevant Entity detailed in such
Pre-Qualification Form, and authorized by an attorney. In case where the
Participant is a Group – all the Members thereof shall sign in the designated place
for the Participant.
7.4.2 Every page of the Pre-Qualification Submission shall be signed by the Participant
in the margins of each page with initials and stamp. In cases where the Participant
is a Group – the Pre-Qualification Submission will be signed by each one of the
Members thereof.
7.5 Table of Contents
All pages of the Pre-Qualification Submission will be numbered, and the Pre-
Qualification Submission will include a detailed table of contents.
7.6 Number of Pre-Qualification Submission Copies
7.6.1 Pre-Qualification Submissions must be submitted in 4 (four) printed copies – an
original copy, marked as such; 2 (two) identical copy; and one copy that includes
marking of the sensitive information, as described in Section 7.7 below
(Identification of Sensitive Information).
7.6.2 In addition, the Pre-Qualification Submission shall be submitted on 2 (two)
mobile storage devices (USB flash drives) – one for each envelope – that will
include: (1) files in a PDF format, both original (without signatures) and scanned
(including signatures), of all of the Pre-Qualification Submission; and (2) files of
the forms attached to this Invitation in Word format (editable), including all of the
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details filled in by the Participant (in accordance with the files that will be
delivered to the Participants by IEC).
7.6.3 In any case of discrepancy between the printed copy and the copy delivered on
mobile storage device, the printed copy will prevail. In any case of discrepancy
between the printed copies, the original copy will prevail.
7.7 Identification of Sensitive Information
7.7.1 Without derogating from the generality of the provisions of Regulation 21(h) of
the Regulations (and the discretion granted thereunder to the Tender Committee),
Participants will detail, within the Pre-Qualification Letter (Pre-Qualification
Form A), in a clear, complete and legible manner, all information contained in
their Pre-Qualification Submission which they consider to be of a commercially
sensitive or secret nature.
7.7.2 It is hereby clarified that, in any event, the decision with respect to the exposure
or commercial sensitivity or secrecy of parts of a Pre-Qualification Submission is
within the authority of the Tender Committee, which is also entitled to disclose
parts in the Pre-Qualification Submission that the Participant has designated as
commercially sensitive or secret. If the Tender Committee decides to do so, the
Participant will be given proper time to evaluate its steps.
7.8 Sealing and Marking of the Pre-Qualification Submissions
7.8.1 Participants shall submit each of the copies of their Pre-Qualification Submission
in two separate envelopes, as set forth below:
7.8.1.1 Envelope No. 1 – an envelope that contains all the General
Information – and will be marked as: “Envelope 1 – The Pre-
Qualification Submission (Without Financial Data).”
A mobile storage device containing all only the General
Information will be attached to Envelope No. 1.
7.8.1.2 Envelope No. 2 – a sealed envelope that contains the Financial Forms
– and will be marked as: “Envelope 1 2 – Financial Data.”
A mobile storage device containing only the Financial Forms will
be attached to Envelope No. 2.
7.8.2 All of the envelopes containing the four copies of the Pre-Qualification
Submission will be inserted into an additional envelope or into a box, which will
also be sealed, and the following will be written on it: “Pre-Qualification
Submission – Invitation for Pre-Qualification to Participate in a Tender for
the Submission of Bids to Purchase the Ramat Hovav Transferred
Facilities”. No other details shall be indicated on the outer envelope or box.
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7.9 Contents of Submission
For Participant's convenience and without derogating from the generality of the
provisions of this Section 7, Annex 2 includes a detailed list of the contents of the Pre-
Qualification Submissions and the documentation to be included therein. The
Participants shall duly fill and submit Annex 2, as part of their Pre-Qualification
Submission.
7.10 Pre-Qualification Submission Date
7.10.1 Pre-Qualification Submissions must be submitted at the address provided in
Section 7.10.2, on the date designated for such submission in Section 1.5
(Anticipated Schedule), no later than 15:00 Israel time (hereinafter: the “Pre-
Qualification Submission Date”).
7.10.2 Pre-Qualification Submissions must be delivered, no later than the Pre-
Qualification Submission Date, by way of delivery by hand, to Tender Box no.
12, in room no. 9 in the lobby, at the following address: IEC, 1 Netiv Ha-Or
Street, Haifa.
7.10.3 Pre-Qualification Submissions are not to be sent by mail, by facsimile or by
email.
7.10.4 The Tender Committee will be entitled immediately to disqualify Pre-
Qualification Submissions that are submitted after the Pre-Qualification
Submission Date.
7.10.5 The Tender Committee, and/or any person authorized by it, is entitled, at its
exclusive discretion, to postpone or to advance the Pre-Qualification Submission
Date, pursuant to Section 1.5 (Anticipated Schedule) above, and neither the
Participants nor any other Entity on their behalves will have any complaint or
claim against the Tender Committee in this regard.
7.11 Validity of Pre-Qualification Submissions
Unless extended by the Tender Committee, the Pre-Qualification Submissions shall be
valid until 12 (twelve) months after the Pre-Qualification Submission Date.
8. EVALUATION OF THE PRE-QUALIFICATION SUBMISSIONS
8.1 Examination of the Pre-Qualification Submissions by the Tender Committee
8.1.1 The Tender Committee, with the assistance of any of its Advisors, shall review
and evaluate the Pre-Qualification Submissions in order to determine whether
each of the Participants meets the Pre-Qualification Requirements, including all
Professional and Financial Pre-Qualification Requirements and all other
applicable provisions and requirements of this Invitation (the "Evaluation
Process").
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8.1.2 It is hereby clarified that, in order that the Tender Committee and/or the IEC
and/or any of its managers and/or its employees should not be exposed to
information on private electricity producers and suppliers, the Financial Forms
will be examined on behalf of the Tender Committee by consultants external to
IEC, and not by IEC employees.
8.1.3 During the examination of the Participants’ compliance with the Pre-Qualification
RequirementsEvaluation Process, the Tender Committee will not score or rank
the Participants; rather, it will merely give them a grade of “Pass” or “Fail.”
8.1.4 Notwithstanding the above, the Tender Committee will be entitled to rank and
score the Participants in accordance with the conditions set forth in Section 6
(Ranking of the Participants (Optional)).
8.1.5 Any Final Score resulting from the exercise by the Tender Committee of its
powers pursuant to Section 6 (Ranking of the Participants (Optional)) will not be
carried over to the Tender Stage and, in any event, will not affect and will not
have implications on the Tender Stage.
8.2 General Provisions Regarding the Evaluation Process
With respect to the manner of examining compliance with the Pre-Qualification
Requirements:
8.2.1 The Tender Committee will distinguish between a substantive requirement, the
deadline for the fulfillment of which is up to the Pre-Qualification Submission
Date (or up to an earlier or later date, if so stated in the requirement and pursuant
to the terms thereof), and the manner of proof of compliance with such
requirement.
8.2.2 Without derogating from the generality of the foregoing, the Tender Committee
will be entitled also to allow proof of compliance with any Pre-Qualification
Requirement in a different way from that whichthe way that was defined in the
Invitation or in the Pre-Qualification Submission, at its discretion. In addition,
proof of compliance with any Pre-Qualification Requirement can be
implemented, inter alia, in the following ways:
8.2.2.1 Presenting data or documents, including after the Pre-Qualification
Submission Date, including information and documents that were
generated or prepared after that date.
8.2.2.2 Presenting different data from that whichthe data that was originally
presented to the Tender Committee, such as Power Plants or
Infrastructure Projects other than those that were originally presented
in the Pre-Qualification Submission.
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8.2.2.3 All of the data that has been placed before the Tender Committee,
including data that was presented to it with respect to other Pre-
Qualification Requirement.
8.2.2.4 All of the data that has been placed before the Tender Committee,
including data that is in its possession or that came into its hands other
than within the Pre-Qualification Process or the Pre-Qualification
Submission.
8.2.2.5 Presenting data that refers to any of the Participating Entity, even if
the Participant did not initially seek to rely on such data.
8.2.3 In cases where the manner of proof of compliance with a Pre-Qualification
Requirement was not specified, Participants will be entitled to provide such proof
as they see fit. The Tender Committee will consider whether compliance with
such Pre-Qualification Requirement was proved to its satisfaction, without
derogating from its right to demand additional details and reference documents
for the purpose of examining compliance (or otherwise) with the Pre-
Qualification Requirement.
8.2.4 The Tender Committee will be entitled to exchange a Pre-Qualification
Requirement for another equivalent Pre-Qualification Requirement that fulfills
the purpose of the original Pre-Qualification Requirement, or to waive and to
forgive minor Deviations or immaterial Deviations from the Pre-Qualification
Requirements, if they have no substantive effect on the Participant’s ability to
purchase the Ramat Hovav Transferred Facilities; all without derogating from the
powers of the Tender Committee as set forth in the Pre-Qualification Documents.
8.3 Requests For Clarifications
8.3.1 The Tender Committee may request the Participant to clarify any detail or item
contained in its Pre-Qualification Submission and to provide any additional
information and documents necessary, at the opinion of the Tender Committee,
for the evaluation of its Pre-Qualification Submission.
8.3.2 Participants will comply with the requests of the Tender Committee and will
submit all clarifications and additional information requested within the time
period stipulated in the request.
8.3.3 A Participant's response to such a request will be considered as an integral part of
its Pre-Qualification Submission and will bind the Participant for all intents and
purposes. The response to the request for clarifications will be considered to
prevail over any contradictory parts of the original Pre-Qualification Submission,
all subject to any Applicable Law.
8.3.4 The Tender Committee may exercise its right under this Section 8.3 as many
times as it sees fit during the Evaluation Process.
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8.4 Announcement of Eligible Participants
8.4.1 Upon the completion of the Evaluation Process, the Tender Committee will
announce those Participants which the Tender Committee deems to have
successfully complied with the requirements of this Invitation (“Eligible
Participants”).
8.4.2 Without derogating from the generality of the provisions of Section 2.18
(Reservation of Rights), following the publication of the Tender Documents, the
Eligible Participants will be invited to submit Bids in accordance with the
provisions of the Tender Process.
8.4.3 Participants who will be deemed by the Tender Committee to have failed to meet
any one of the Pre-Qualification Requirements will not be announced as Eligible
Participants.
8.4.4 The Tender Committee will be entitled to determine conditional compliance with
the conditions of the Pre-Qualification ProcedureProcess, and to specify the
conditions for compliance therewith and the deadline for fulfilling them.
8.5 Issuance of the Tender Documents
IEC intends to issue the Tender Documents to Participants which will be declared as
Eligible Participants.
The Pre-Qualification Submissions will be considered as an integral part of an the
Eligible Participant’s Bid, if such a Bid is submitted by it.
8.6 Updates Statement
8.6.1 Without derogating from the remaining provisions of this Invitation, each of the
Participants in the Pre-Qualification Process will provide the Tender Committee
with a notice in writing of any change that occurs in information that it submitted
to the Tender Committee. Such notice shall be provided without delay and no
later than seven (7) days after first having been apprised thereof, and, in any
event, no later than the Bids Submission Date.
8.6.2 The Tender Committee will be entitled, on the basis of the change in the
information as stated, or on the basis of any new information concerning the
Participant that reaches the Tender Committee in any way whatsoever, or if the
Tender Committee believes, at its absolute and exclusive discretion, that an act or
an omission by a Participant in the Sale Process may be detrimental to the Sale
and/or to its outcome, to notify such Participant of the termination of its
participation in the Sale Process, and such a Participant and/or anyone on its
behalf will have no complaint nor right of claim against the Tender Committee
and/or anyone on its behalf in this regard.
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8.7 Disclosure of Documents
8.7.1 Subject to the provisions of the Mandatory Tenders Regulations, 1993, any
Participant will be entitled, within 30 (thirty) days of the date of publication of the
results of the Pre-Qualification Stage, to review the minutes of the Tender
Committee, its correspondence with the Participants, the professional expert
opinions that were prepared at its request, the opinions of the legal advisors to the
Tender Committee, and the other Pre-Qualification Submissions submitted by
other Eligible Participants, and to receive copies of those documents, with the
following exceptions:
8.7.1.1 The parts of the decision or of the Pre-Qualification Submission that
were filed by a Participant, review of which, in the opinion of Tender
Committee, might expose a trade secret or a professional secret, or
might be harmful to the security of the State, its foreign relations, its
economy or public security;
8.7.1.2 Any legal opinion that was prepared as part of a legal advice to the
Tender Committee, including an examination of various possible
alternatives to an action or to a decision by the Tender Committee, or
an evaluation of opportunities and risks that result from making such
decisions in future legal proceedings.
8.7.2 In light of the right of review that is conferred upon the Participants in the Sale
Process by any Applicable Law, a Participant that objects to granting a right of
review of its Pre-Qualification Submission, in whole or in part, to other
Participants, due to a trade secret or professional secret that it claims is included
in the Pre-Qualification Submission, is required to act according to the provisions
of Section 7.7 (Identification of Sensitive Information). A Participant will be
precluded and estopped from arguing that it is entitled to review those parts of the
Pre-Qualification Submissions of another Participant that are parallel to the parts
that were marked as confidential in its Pre-Qualification Submission.
8.7.3 The marking of parts of a Pre-Qualification Submission by the Participant as
privileged will not derogate from the Tender Committee’s right, at its exclusive
discretion, to transfer the Pre-Qualification Submissions, in their entirety,
including parts of a Pre-Qualification Submission that were marked as privileged,
to any Competent Authority.
8.7.4 The Tender Committee will not be obligated to contact a Participant in order to
clarify whether parts of its Pre-Qualification Submission are privileged and/or the
justifications for privilege, if this was not stated in its Pre-Qualification
Submission.
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8.8 Additional Prerogatives of the Tender Committee
Without derogating from the generality of the foregoing and the powers of the Tender
Committee under any Law and/or pursuant to that which has been set forth in the Pre-
Qualification Documents, the Tender Committee will be entitled to act as follows:
8.8.1 To contact a Participant or a Member that did not produce, along with its Pre-
Qualification Submission, a document, permit, approval, license or any other
document that constitutes a prerequisite pursuant to this Invitation, inter alia, for
the purpose of providing clarifications and/or supplements, with a request to
receive clarifications with respect to its Pre-Qualification Submission or with a
request to receive additional data and documents for the purpose of examining its
Pre-Qualification Submission, all as it sees fit.
8.8.2 To contact any third party (including recommending entities and/or other any
third parties that a Participant has mentioned in its Pre-Qualification Submission),
as it sees fit, for the purpose of clarifying and verifying details in connection with
information provided by such Participant.
8.8.3 To use its existing information with respect to a Participant and with respect to its
Members, whether that information was created before or after the submission of
its Pre-Qualification Submission, for the purpose of examining such Participant’s
Pre-Qualification Submission.
8.8.4 To cancel the Sale Process and/or to initiate any other procedure for the receipt of
Bids, the purpose of which is to engage in an agreement that constitutes the object
of the Sale Process, inter alia, in light of the absence of an approval or another
permit that is required under any Applicable Law for the performance of the Sale
Process, or in light of considerations of efficiency or other public interests.
8.8.5 To reject or to disqualify a Pre-Qualification Submission, including in cases
where it transpires that the applicable Participant does not actually have the
financial robustness and/or the financial capacity to purchase the Ramat Hovav
Transferred Facilities, including under circumstances in which liquidation
proceedings, bankruptcy proceedings or a stay of proceedings was/were initiated
against the Participant; a receivership order was issued with respect to it; a
temporary or permanent receiver was appointed for it; any insolvency proceeding,
of any type and kind whatsoever, was initiated against it, and the like.
8.8.6 To reject or to disqualify a Pre-Qualification Submission, including in cases
where criminal proceedings or investigations are being conducted against the
applicable Participant, or against a Principal principal or an officer of the
Participant, in connection with an offense that significantly pertains to the Sale
Process, and/or in any case where a Participant, or a Principal principal or an
officer of the Participant, has been convicted in the past of an offense as stated.
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8.8.7 To reject or to disqualify a Pre-Qualification Submission, including in cases
involving the occurrence of an exceptional event, which, in the opinion of the
Tender Committee, is capable of having a significantly negative impact on the
applicable Participant’s ability to participate in the Sale Process and to fulfill its
undertakings therein, and to reject its Pre-Qualification Submission in any case
where the Participant has submitted mendacious, deceptive or erroneous
information to the Tender Committee, or in any case involving the discovery of
an event or information that, had it been discovered at an earlier time, would have
affected the approval of the Participant.
8.8.8 To reject or to disqualify a Pre-Qualification Submission for any other reason,
including in cases of any other impediment under any Applicable Law.
8.9 No Assignment
A Participant is not entitled to assign to another any right or duty that results from the
Pre-Qualification Documents and/or from the Sale Process, unless IEC has given its
explicit consent thereto, in advance and in writing, subject to the exclusive discretion of
IEC. If IEC’s consent has been given as stated, this will not release the Participant from
any undertaking, liability and/or duty that is binding upon it pursuant to the Pre-
Qualification Documents and/or as a result of the Sale Process or under any Applicable
Law.
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Certification by the Participant
We hereby certify that we have read the Invitation for Pre-Qualification, including the appendices
thereto. We consent to its provisions and I will act in accordance therewith.
The signatories of the Invitation for Pre-Qualification on behalf of the Participant certify, by their
signature, that they are competent to act on behalf of the Participant.
Date ___________ Participant’s signature __________________
Participant’s name ____________________
Identity/Company No. ______________
By ___________ Position ___________
By ___________ Position ___________
Certification
I the undersigned, Adv. ___________, License No. ___________, of [address] _________________,
do hereby certify that the above signatures are those of Messrs. ___________ and ___________, who
identified themselves by means of Identity No. ___________ / who are known to me personally, and
their signatures are binding upon the Entity on behalf of which they signed, for all intents and
purposes.
__________________________
Attorney’s signature and stamp