REPUBLIC OF PERU · 2014. 2. 21. · CHOQUEQUIRAO CABLE RAILWAY PROJECT COMMITTEE OF PROINVERSIÓN IN PROJECTS OF INFRASTRUCTURE AND SOCIAL PUBLIC SERVICES, MINING, SANITATION, IRRIGATION

REPUBLIC OF PERU

BID OF COMPREHENSIVE PROJECTS FOR THE CONCESSION OF THE CHOQUEQUIRAO CABLE RAILWAY PROJECT

COMMITTEE OF PROINVERSIÓN IN PROJECTS OF INFRASTRUCTURE AND SOCIAL PUBLIC SERVICES, MINING,

SANITATION, IRRIGATION AND AGRARIAN ISSUES - PRO DESARROLLO

January, 2014

Important: This is an unofficial translation. In case of divergence between the English and Spanish

text, the version in Spanish shall prevail.

Bid Terms of Comprehensive Projects for the Concession of the Choquequirao Cable Railway Project

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INDEX

1. PURPOSE AND CHARACTERISTICS OF THE BID 1.1 Introduction …………………………………………………………………. 5 1.2 Call and Purpose of the Bid …………………………………………………. 5 1.3 Definitions ………………………………………………………………… 6 1.4 Background and Legal Framework of the Bid……………………………… 13 1.5 Powers of the Committee …………………………………………………… 14 1.6 Concession Contract ……………………………………………………. 15 1.7 Schedule of the Bid….. ………………………………………………. 15 1.8 Interpretation and references………………………………………………. 16 1.9 Technical Background at the disposal of Stakeholders ………..……. 16

2. AUTHORIZED AGENTS AND LEGAL REPRESENTATIVE 2.1 Authorized Agents ………………………………………………………. 16 2.2 Legal Representative………………………………………………………. 17

3. INQUIRIES AND INFORMATION 3.1 Inquiries to the Bid Terms and Suggestions to the Contract Project … 19 3.2 Access to Information – Data Room… ………………………………. 20 3.3 Request of Interviews …………………………………………………… 20 3.4 Limitations of Liability………. ……………………………………… 21

4. SUBMISSION OF ENVELOPES N° 1, N° 2 AND N° 3 4.1 Submission ……………………………………………………………….. 22 4.2 Language ……………………………………………………………………… 22 4.3 Original Documents and Copies ……………………………………….. 22 4.4 Way of Submission of Envelopes N° 1, N° 2 and N° 3 …………… 23 4.5 Cost of Preparation and Submission ..……………………………….. 23

5. REQUIREMENTS FOR QUALIFICATION 5.1Content of Envelope N° 1 (Credentials) … ………………………….. 23 5.2 Verification of Submitted Information before the Committee…………… 28 5.3 Verification of legal requirements ……………………………………….. 28 5.4 Mechanism of Simplification….. ……………………………………… 28

6. ACT OF SUBMISSION OF THE CONTENT OF ENVELOPE N° 1 AND RESULTS OF QUALIFICATION 6.1 Submission of the content of Envelope N° 1 …………………………… 29 6.2 Announcement of Short-listed Stakeholders………………………………. 29 6.3 Modification of conformation of Short-listed Stakeholder ………………. 29

7. CONTENT OF ENVELOPES N° 2 AND N° 3 7.1 Content of Envelope N° 2 ………………………………………………… 30 7.2 Content of Envelope N° 3: Economic Proposal ….…………………………..33

8. ACTS OF RECEPTION OF ENVELOPES Nº 2 AND Nº 3 AND OPENING OF ENVELOPE N° 2 8.1 Act of submission of Envelopes Nº 2 and 3 and Opening of Envelope N° 2. …………………………………………………………………………….33 8.2 Assessment of content of Envelope N° 2 ………………………………. 34

9. OPENING OF ENVELOPE N° 3 AND AWARD 9.1 Opening of Envelope N° 3 and Award …………………………………… 35 9.2 Challenge………………………………………………………………….. 36 9.3 Not awarded Bid …………………………………………………………. 37 9.4 Suspension or cancellation of Bid……….…………………………….. 37

10. CLOSING PROCEDURE 10.1 Closing Date …………………………………………………………. 37 10.2 Closing Acts.. …………………………………………………………. 38 10.3Execution of Guarantee of Validity, Validity Term and Seriousness of Economic

Proposal …….………………………………………………………….. 39 10.4 Contract Effectiveness…… ………………………………………… 39

Bid Terms of Comprehensive Projects for the Concession of Choquequirao Cable Railway Project

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11. FINAL PROVISIONS

11.1 Applicable Legal Regime ………………………………………………… 39 11.2 Jurisdiction and Competence ………………………………………………. 39 11.3 Expenses of Process………………………………………………………. 40 11.4 Contribution to FONCEPRI ………………………………………………. 40

ANNEX N° 1: CONFIDENTIALITY AGREEMENT …………………………………...41 ANNEX N° 2: Appendix 1, BANKING COMPANIES AUTHORIZED TO ISSUE THE

GUARANTEES ESTABLISHED IN THE BID TERMS………..….. 43 ANNEX N° 2: Appendix N° 2, LIST OF INTERNATIONAL FINANCILA ENTITIES

AUTHORIZED TO ISSUE THE GUARANTEES ESTABLISHED IN THE

BID TERMS …………………………………………………………… 44

ANNEX N° 3: Form 1, AFFIDAVIT ………………….………………………….. 45

ANNEX N° 3: Form 2, AFFIDAVIT –Technical Experience in operation of transportation

infrastructure of public service ………………………………..…. 46

ANNEX N° 3: Form 3, AFFIDAVIT –Technical Experience in operation of transportation

infrastructure by cable …………………………….……………… 47

ANNEX N° 3:Appendix 1, Technical-Operative Experience ……………………… 48

ANNEX N° 4: Form 1, CREDENTIALS FOR QUALIFICATION

(Legal incorporated person) ………………………………….… 49

ANNEX N° 4: Form 2, CREDENTIALS FOR QUALIFICATION

(Only for Consortia) …..……………………………………..… 50

ANNEX N° 4: Form 3, CREDENTIALS FOR QUALIFICATION ……….………… 51

ANNEX N° 4: Form 4, AFFIDAVIT ………………..…………..……………… 52

ANNEX N° 4: Form 5, CREDENTIALS FOR QUALIFICATION ……..………. 53

ANNEX N° 4: Form 6, CREDENTIALS FOR QUALIFICATION ……..………. 54

ANNEX N° 4: Form 7, CREDENTIALS FOR QUALIFICATION …….……….. 55

ANNEX N° 4: Form 8, CREDENTIALS FOR QUALIFICATION …………….. 56

ANNEX N° 4: Form 9, CREDENTIALS FOR QUALIFICATION …….………. 57

ANNEX N° 4: Form 10, CREDENTIALS FOR QUALIFICATION …….……… 58

ANNEX N° 4: Form 11, COMMITMENT OF INCORPORATION ……………. 59

ANNEX N° 4: Form 12, COMMITMENT OF INCORPORATION ……………. 60

ANNEX N° 4: Form 13, CREDENTIALS FOR QUALIFICATION …..……… 62


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ANNEX N° 5: Form 1, FINANCIAL REQUIREMENTS ……………………… 63

ANNEX N° 6: Form 1, INFORMATION EFFECTIVENESS …..……………… 65

ANNEX N° 6: Form 2, ACCEPTANCE OF TERMS AND CONTRACT ……..… 66

ANNEX N° 6: Form 3, MODEL OF LETTER OF GUARANTEE OF VALIDITY, VALIDITY

TERM AND SERIOUSNESS OF PROPOSAL ………………….. 67

ANNEX N° 6:Form 4, TECHNICAL PROPOSAL –AFFIDAVIT

OF FULFILLMENT OF BASIC TECHNICAL

SPECIFICATIONS……………………………….……………………….68

ANNEX N° 6:Form 5, AFFIDAVIT THAT WE SHALL HAVE A SUPPLIER OF

ELECTROMECHANIC EQUIPMENT……………………...…… 69

ANNEX N° 7: Form 1, AFFIDAVIT– Capacity in Provision

of Electro mechanic Equipment …………………………………… 70

ANNEX N° 7: Form 2, Guidelines of the Contract of Provision of Electro mechanic

Equipment …………………………………………..…………… 71

ANNEX N° 8: MODEL OF ECONOMIC PROPOSAL ……………………… 72

ANNEX N° 9: USERS GUIDE TO DATA ROOM …………..……………..…. 73

ANNEX N° 9: Form 1, IDENTIFICATION OF AUTHORIZED PERSONS TO USE DATA

ROOM…………………………………………………………….... 75

ANNEX N° 9:Appendix 1 of Form 1,DATA TABLE AND

PERMANENCE …………………………………….………………… 76

ANNEX N° 9: Appendix 1, List of documents of Data Room ……….. 77

ANNEX Nº 10: MODEL OF BANKING LETTER OF GUARANTEE OF CHALLENGE OF AWARD …………………………………… 78

ANNEX Nº 11: SCHEDULE …………………………………………………… 79

ANNEX N° 12:MODEL OF PERFORMANCE BOND OF THE CONTRACT

…………………………………………………………………..….. 80


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1. PURPOSE AND CHARACTERISTICS OF THE BID

1.1. Introduction The purpose of these Bid Terms is to regulate the procedure of the Bid of Comprehensive Projects for the concession of the Choquequirao Cable Railway Project. The project basically consists in the construction of a cable railway as a service road from Kiuñalla, to the Archaeological Park of Choquequirao; and the construction of output stations in Kiuñalla, Intermedia in the El Pajonal and, of arrival to the North side of Choquequirao. The objective of the Project is focused in providing adequate conditions of accessibility for the population in the high slope area and visitors to the right margin of Apurimac river to the Archaeological Park of Choquequirao. Additionally, taking into account that up to date the access to the Archaeological Park of Choquequirao is limited due to access difficulties, we are not using the tourist resource that may be part of the tourist offer that benefits and maximizes the current circuit, which due to the proximity with other tourist resources such as Salkantay, Machu Picchu and the Sacred Valley, besides the future International Airport of Chinchero and urban service centers; might integrate to the tourist circuit Cusco-Apurímac. The general objectives of the Bid Terms are the following:

To achieve a transparent, simple target procedure, and in equal conditions.

Obtain the concurrence of as many interested with experience in rendering the required services.

Obtain the concurrence of as many investors in capacity to finance the infrastructure and equipment required to render the services.

Define the basic rules on which the stakeholder may prepare its proposal. In this way, we establish the basic aspects referred, mainly, to the rules and terms of the Bid, to the competence factor, to the investments that will be made, to the requirements of interested parties, among others of relevance. As it is usual in this kind of bids, the details will be developed through Circulars and in the different versions of the Concession Contract.

1.2. Call and Purpose of the Bid The State of the Republic of Peru, through the Agency of Promotion of Private Investment– PROINVERSIÓN, calls to the Bid of Comprehensive Projects for the Concession of the Project. The purpose of the bid is the selection of the private investor, that may be a national or foreign legal person or a consortium of them, for the concession of the Project, according to the technical, financial and legal qualifications established in these Bid Terms. The Concessionaire shall be in charge of the design, financing, construction, commissioning, operation and maintenance of the Project. The Short-listed Stakeholder in its Technical Proposal may submit a project with the adjustments and technological updates that it may deem as convenient, as far as said modifications go beyond the minimum requirements for works and at


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the service levels that it should observe according to the provisions made in the Concession Contract. For purposes of the preparation of the Proposal, we put at the disposal of the interested parties, the Pre Investment Studies approved according to the procedure established in the National System of Public Investment (SNIP), and the other existing information, that will be incorporated in Appendix 1 of Annex N° 9. The stakeholder has full freedom to use said information, however, the Proposal delivered by him is of its exclusive responsibility, and he may not in future, as Concessionaire or in any other instance, plead or claim damages, indemnifications neither compensations for eventual mistakes, omissions, inaccuracies or deficiencies of any nature existing in said background and studies. The Concession shall have the following basic referential characteristics, according to these Bid Terms and the Concession Contract:

According to the kind of contract foreseen in the concession scheme, it is a DFBOT type Concession (Design, Finance, Build, Operate and Transfer).

The concession has co financed nature under the modality of Public-Private Association.

The Concessionaire shall have the right and obligation to operate the cable railway service in the granted sections, and to receive complementary income for the services he may render, according to the provisions made in the Concession Contract.

At the end of the Concession term, the works and the assets inherent to the operation shall be transferred to the State, which is free to exploit them directly or award them to a new concessionaire, in order that the continuity of the service is guaranteed.

1.3. Definitions

Any reference made in this document to “Section”, “Form”, “Annex” and “Appendix”, shall be understood to be made to sections, forms, annexes and appendices of the Terms, respectively, unless expressly stated otherwise. The expressions in singular include in their case, the plural and vice versa. All hour references should be understood as made at the local hour of Peru. The terms that appear in uppercase in these Bid Terms and that are not expressly defined in them, shall correspond to the Laws and Applicable Provisions, or to the meaning given to them in the use of the activities of the project development or, failing to this, to the terms that are usually used in uppercase. In these Bid Terms the following terms shall have the meanings indicated below, without prejudice to it, the definition established in the Concession Contract shall prevail, in case of discrepancy:

1.3.1 Non-Disclosure Agreement: Is the agreement of the interested parties, through the Authorized Agent(s) or the Legal Representative(s), that should sign before using the Data Room. The text of the Non-Disclosure Agreement is in Annex N° 1.


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1.3.2 Award: Is the declaration that the Committee shall make determining which Bidders has submitted the best Proposal in the terms and conditions established in the Bid Terms and who is the winner of this Bid.

1.3.3 Awardee: If the successful Bidder of the Bid Award. 1.3.4 Agency of Promotion of Private Investment– PROINVERSIÓN: Is the public

executing organism ascribed to the sector of Economy and Finance, with legal personality, technical autonomy, functional, administrative, economic and financial referred in Law N° 28660 and the Regulation of Organization and Functions of PROINVERSIÓN approved through Ministerial Resolution N° 083-2013-EF/10, empowered, among other functions, to promote private investment in public works of infrastructure and public services, as well as in assets, projects and companies of the State and other governmental activities, according to the corresponding legislation.

1.3.5 Authorized Agents: Are the natural persons appointed as such by the

stakeholder for purposes of this Bid, according to Section 2.1.

1.3.6 Governmental Authority: Is any government or national, regional, departmental, provincial or municipal authority, or any of its dependencies or agencies, regulatory or administrative, or any entity or organism of the State of the Republic of Peru that according to law exercises executive, legislative or judicial powers, or that belongs to any of the aforementioned governments, authorities or institutions, with competence on persons or matters in question.

1.3.7 Bid Terms: Is this document, including its Forms, Annexes, Appendices and Circulars issued by the Committee, that establishes the terms and conditions under which the Concession Bid shall develop.

1.3.8 Circulars: Are all written directives issued by the Committee, whether of specific or general effects, with the purpose to complete, clarify, interpret or modify the content of the Bid Terms, another Circular or to answering inquiries formulated by those who are authorized according to these Bid Terms, or instruct on any aspect during the development of the Bid. Likewise, through Circulars, the Projects of the Contract shall be sent. These Circulars shall be integrant part of these Bid Terms. They are also issued to communicate the interested parties the information related to the Bid, prior approval of the Committee.

1.3.9 Cofinancing: Is the amount of money that the Grantor shall disburse on behalf of the Concessionaire, in the conditions established in the Contract.

1.3.10 Committee: Is the Committee of PROINVERSIÓN in Projects of Infrastructure and Social Public Services, Mining, Sanitation, Irrigation and Agrarian Issues - PRO DESARROLLO, incorporated through Supreme Resolution Nº 010-2012-EF, in charge of the execution and development of this Bid. The appointment of members of the Committee was made by Supreme Resolution Nº 010-2012-EF and Supreme Resolution Nº 021-2013-EF.

1.3.11 Grantor: Is the State of the Republic of Peru, acting through the Ministry of Housing, Construction and Sanitation (MVCS) .

1.3.12 Concession: Is the legal relation of public right established between the Grantor

and the Concessionaire since the Contract subscription, by which the Grantor grants to the Concessionaire the right to the economic use of the concession assets during the effectiveness of the same and the Concessionaire is


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responsible for the design, financing, construction, operation and maintenance of the Project, according to the terms of the Contract and subject to the provisions made in the Laws and Applicable Provisions.

1.3.13 Concessionaire: Is the legal person incorporated in Peru by the Awardee that

enters into the Concession Contract with the Grantor. 1.3.14 Bid of Comprehensive Projects or Bid: Is the process driven by the

Committee and regulated by these Bid Terms to choose the Awardee of the Concession. It begins with the public call and ends on the Closing Date.

1.3.15 Consortium: Is the group of two or more legal persons that lack legal personality independent from their members, which has been conformed with the purpose to participate, as Short-listed Stakeholder or Bidder in the Bid.

1.3.16 Concession Contract or Contract: Is the document, including its annexes, appendices and any other document that is integrated to this, entered into the Grantor and the Concessionaire, that will govern the relations between the parties during the concession term to develop the design, financing, construction, operation and maintenance of the Project.

1.3.17 Contract of Provision of Electro Mechanic Equipment: Is the contract that will be entered between the Concessionaire and the Supplier of the Electro mechanic Equipment according to the provisions set forth in the Concession Contract. The conclusion of this contract shall not limit the responsibilities of the Concessionaire.

1.3.18 Effective Control: A natural or legal person has the Effective Control of a legal person or is submitted to the common control of it, when: - It has more than fifty per cent (50%) of the power of vote in the general

shareholders meeting, through direct property of representative titles of social capital or indirectly through usufruct contract, pledge, trust, association and similar or any other legal act; or,

- Directly or indirectly has the power to appoint or remove the majority of members of the board or equivalent body, that allows to control or exercise the majority of votes in the board meetings or equivalent body, or to govern the operative or financial policies under a regulation or contract whatever is its modality; or,

- By any other mechanism or circumstance (contractual or not), effectively controls the decision power in the other company.

In addition to the aforementioned and provided it is applicable, in order to determine the effective control, we shall take into account the provisions made in Resolution CONASEV Nº 090-2005-EF-94.10, modified by Resolution CONASEV N° 005-2006-EF/94.10 or regulation that replaces it or modifies it.

1.3.19 Call: Is the announcement by which the stakeholders are invited to participate in the Bid according to the provisions made in these Bid Terms.

1.3.20 Schedule: Is the temporary sequence of activities that will be developed during

the Bid process and which are indicated in Annex N° 11. 1.3.21 Affidavit: Written statement submitted by the Stakeholder, Short-Listed

Stakeholder or Bidder in which it declares or assumes a commitment that is presumed to be certain for purposes of this Bid without prejudice of later control.


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1.3.22 Right of Participation: Is the right that allows a natural or legal person or Consortium to participate in the Bid. It is acquired when paying the amount of One Thousand and 00/100 Dollars (US$ 1 000,00), including the VAT, and complying the provisions made in Section 2.1. The payment of the right of participation is not refundable.

1.3.23 Days: Are the Business days, that is, those which are not Saturdays, Sunday or non working Holiday in the city of Lima. Holidays are also those days that are not working days for the public sector, by order of the Governmental Authority. If there is no express provision, any hour reference shall be understood as made at the hour of Peru.

1.3.24 Dollar or Dollar of the United States of America or US$: Is the currency or

the monetary sign of legal course in the United States of America. 1.3.25 Affiliated Company: A company shall be considered as affiliated to another

company when the Effective Control of said companies is exercised by a same Parent Company.

1.3.26 Parent Company: Is the company that has the Effective Control of another. In

this definition we also consider that company that possesses the Effective Control of a Parent Company, as it has been defined, and so on.

1.3.27 Subsidiary: Is the company which Effective Control is exercised by another

company. 1.3.28 Related Company: Is any Affiliated Company, Subsidiary or Parent Company. 1.3.29 Banking Company: Is the company defined as such according to Law N°

26702, General Law of Financial System and Insurance System and Organic of the Superintendence of Banking and Insurance, according to the provisions made in Appendix 1 of Annex N° 2.

1.3.30 International Financial Entity: Is a financial entity of first category recognized in Peru, authorized to issue letters of guarantee for purposes of this Bid and which is included in Appendix 2 of Annex N° 2.

1.3.31 Electro Mechanic Equipment: Is composed by all the components, materials, inputs, power, signaling, telecommunications, control of passengers and installations of the system, that it requires to operate in the determined service level.

1.3.32 Basic Technical Specifications: Are the minimum necessary technical

requirements that should be complied by the Concessionaire to reach the standards, regulations and service level determined for the system.

1.3.33 Definitive Study: Is the document prepared by the Concessionaire and

approved by the Grantor that shall contain at detailed level the scope, characteristics, specifications, maps, metering, and budget of Civil Works and Electro Mechanic Equipment, according to the Concession Contract.

1.3.34 Existing Studies: Is the group of studies and reports of technical nature related to the Project, which shall be at the disposal of the Interested Parties in the Data Room, and may be used for the formulation of their Proposal.

1.3.35 Competence Factor: Is the variable that defines the winner of the Bid,


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according to the provisions made in Section.2. 1.3.36 Closing Date: corresponds to the day, that shall be communicated by the

Committee through Circular, in which the Concession Contract shall be subscribed and the other acts shall be carried out which are established in Section.2.

1.3.37 FONCEPRI: Is the Promotion Fund of Private Investment in Public Works of Infrastructure and Public Services, referred in Article 11° of Supreme Decree N° 059-96-PCM, that approves the Consolidated Text of regulations with rank of law that regulate the concession to the private sector of public works of infrastructure and public services. The resources of FONCEPRI shall be determined according to the mechanism established in Supreme Decree Nº 021-98-PCM.

1.3.38 Performance Bond Works: Is the banking letter of guarantee granted on behalf

of the Grantor, that the Concessionaire should submit according to the provisions made in the Concession Contract, to guarantee the correct execution of the Works.

1.3.39 Performance Bond of the Concession Contract: Is the banking letter of guarantee granted on behalf of the Grantor, that the Concessionaire should submit in the Closing Date to guarantee the compliance of all the contractual obligations, with exception of those obligations of the Concessionaire covered with the Performance Bond Works as far as it is in force, and the penalties established in the Concession Contract.

1.3.40 Guarantee of Validity, Validity Term and Seriousness of the Proposal: Is the banking letter of guarantee that the Short-Listed Stakeholder shall submit on behalf of PROINVERSIÓN, to secure the validity, validity term and seriousness of the proposal, according to the enclosed model as Form 3 of Annex N° 6.

1.3.41 VAT: Is the General Sales Tax referred in Supreme Decree N° 055-99-EF, Consolidated Text of the Law of General Sales Tax and Selective Consumption Tax, and its regulations, complementary and amendments, and the Municipal Promotion Tax referred in Supreme Decree N° 156-2004-EF, Consolidated Text of Law of Municipal Taxation, or regulations that replace it.

1.3.42 Stakeholder: Is the natural or legal person or consortium that has acquired the Right of Participation in this Bid and submits to the provisions made in these Bid Terms. For purposes of qualification, the interested should be a legal person or a consortium of them.

1.3.43 Short-listed Stakeholder: Is the stakeholder who has complied the short-listing requirements of the Bid Terms and is enabled to submit Envelopes N° 2 and N° 3.

1.3.44 Mandatory Investments: They include the preparation of the Definitive Studies and the Works execution, in charge of the Concessionaire in the terms foreseen in the Concession Contract.

1.3.45 Laws and Applicable Provisions: Is the group of legal provisions that regulate

and/or affect directly or indirectly the Concession Contract. They include the Political Constitution of Peru, the laws, the regulations with rank of law, the supreme decrees, the rules, directives and resolutions, and any other that according to the legal order of the Republic of Peru is applicable, which shall be of mandatory compliance for this Bid.


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1.3.46 LIBOR: Is the rate London Interbank Offered Rate at six (6) months reported by

Reuters at the closing hour of London.

1.3.47 Nuevo Sol or S/.: Is the currency or sign of legal course in the State of the Republic of Peru.

1.3.48 Works: Are the Civil Works and the installation of Electro Mechanic Equipment,

that shall be executed according to the provisions made in the Contract.

1.3.49 Civil Works: Are the infrastructure construction works, such as stations, Workshops, ancillary facilities, among others foreseen or derived from the Basic Technical Specifications, and all those foreseen in the approved Definitive Study, that is constructed or is implemented for the fulfillment of the obligations of the Concessionaire, according to the Contract.

1.3.50 Economic Proposal: Is composed by the values proposed by the Bidders in the Economic Proposal.

1.3.51 Minimum Participation: Is the percentage of participations or shares not lesser

than twenty five per cent (25%) of the social capital, subscribed and paid, of the Concessionaire, that the Strategic Partner should have and keep as minimum in the Concessionaire, during the effectiveness of the Concession according to the provisions set forth in the Contract. This participation shall necessarily have the right to vote in the General Shareholders Meeting.

1.3.52 Concession Term: Is the period comprised between the Closing Date and the

expiration of the Concession.

1.3.53 Bidder: Is the legal person or a consortium that being Short-listed Stakeholder submits Envelopes N° 2 and N° 3 with technical and economic proposals respectively.

1.3.54 Referential Budget: Is the approximate amount necessary to perform Mandatory Investments, amounting S/. 152 millions without including the VAT, according to the Public Investment Project of SNIP Code 235341.

1.3.55 Proposal: is the documentation that the Short-listed Stakeholders should submit according to the provisions made in these Bid Terms, whether the Economic Proposal and/or the Technical Proposal.

1.3.56 Economic Proposal: Is the document that the Short-listed Stakeholder shall submit in Envelope Nº 3, that will be submitted according to Section 7.2 and Annex N° 8.

1.3.57 Technical Proposal: Is document N° 4 that the Short-listed Stakeholder shall

submit in Envelope Nº 2, according to indications made in Section 7.1.

1.3.58 Supplier of Electro Mechanic Equipment: Is the legal person that shall accompany the Concessionaire in the design, supply and installation of the Electro Mechanic Equipment for the Project, and who credits the requirements and experience established in the Bid Terms. Likewise, he shall provide technical assistance to the Concessionaire in the organization, operation and maintenance during the term established in the Concession Contract. The Supplier of Electro Mechanic Equipment may not be a Short-listed Stakeholder.


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1.3.59 Project or Choquequirao Cable Railway Project: Is the transportation system by cable and its complementary services, implemented in compliance of the Concession Contract, that begins in the location of Kiuñalla and arrives to the Archaeological Complex of Choquequirao. It is based in the Public Investment Project of SNIP code 235341 “Installation of services of access by cable for the transit of the population and visitors to Choquequirao, Kiuñalla location, district of Huanipaca, province of Abancay, department of Apurímac, and location of Yanama, district of Santa Teresa, province of La Convención, department of Cusco”, declared feasible on September 27, 2013 through Technical Report No. 208-2013/VIVIENDA-OGPP-UI.

1.3.60 Draft Contract: Is the non definitive Concession Contract that shall be delivered to the stakeholders in order to receive their suggestions. None of the terms and/or criteria contained in the same shall link in some extent PROINVERSIÓN, the Committee and/or the Grantor.

1.3.61 Legal Representative: Is the natural person with domicile indicated in Lima

(Peru) appointed as such by the Stakeholder according to Section 2.2 for purposes of this Bid.

1.3.62 Data Room: Is the area determined by the Committee that shall have the

documents related to this process of promotion to private investment, and that will be available for stakeholders, Short-listed Stakeholders, its Authorized Agents and Legal Representatives after subscribing the Non-Disclosure Agreement, which model is enclosed as Annex N° 1.

1.3.63 Envelope (s): Makes reference individually or jointly, to Envelopes Nº 1, 2 and 3.

1.3.64 Strategic Partner: Is the Short-listed Stakeholder or one of its integrants, in

case of consortium, that independently credits at least one of the experiences about technical capacity established in Section 5.1.2. and that will have the Minimum Participation of being favored the Short-listed Stakeholder of the Award.

1.3.65 Tariff: This economic consideration, including taxes that result applicable, that the Concessionaire shall collect to users for services, according to the provisions made in the Concession Contract.

1.4. Background and Legal Frameworks of the Bid 1.4.1 Under the provisions of the 95th Final Complementary Provision of Law Nº

29951, Law of Budget of Public Sector for Fiscal Year 2013, the Ministry of Housing, Construction and Sanitation was authorized (hereinafter, the MVCS) among others, to formulate, approve and execute, in the framework of the Program Our Cities, projects of public investment oriented to solve problems of access to the population living in high slope areas or hard geographical access areas through cable railway and other similar means.

1.4.2 Through Interinstitutional Cooperation Agreement subscribe don March 7, 2013, between the Regional Government of Apurímac and the MVCS, it was agreed the formulation and execution of the component called “Suitable routes of access to the Archaeological Park of Choquequirao: Construction of a cable railway as route access of Kiuñalla to the Archaeological Park of Choquequirao North side (crossing road to Yanama)”, integrant of the project of public investment with SNIP Code 235341, formulated by the Regional Government of


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Apurímac, called “Installation of tourist services for improvement of route to the Archaeological Park of Choquequirao, districts of Huanipaca and San Pedro de Cachora, province of Abancay, Apurímac region and district of Santa Teresa, province of La Convención, Cusco region”.

1.4.3 With Official Letter Nº 193-2013/VIVIENDA/VMVU of October 3, 2013, the

MVCS communicated to PROINVERSIÓN about the reformulation of the feasibility study mentioned in the foregoing Section 1.4.2 circumscribing the accessibility component to the construction of the cable railway and infrastructure in the corresponding stations, and the project remained reformulated as an independent public investment project.

1.4.4 On September 27, 2013, the Feasibility Study reformulated of the Project of

Public Investment “Installation of services of access by cable for the transit of the population and visitors to Choquequirao, Kiuñalla location, district of Huanipaca, province of Abancay, department of Apurímac, and Yanama location, district of Santa Teresa, province of La Convención, department of Cusco” SNIP Code 235341, was declared feasible, hereinafter, the Pre Investment Study.

1.4.5 On November 16, 2013, Supreme Resolution Nº 068-2013-EF was published, by which the Agreements adopted by the Steering Council of PROINVERSIÓN were ratified, referred to the incorporation of the Cable Railway Project of Choquequirao to the process of promotion of private investment in charge of PROINVERSIÓN, under the mechanisms of Supreme Decree Nº 059-96-PCM, Legislative Decree Nº 1012 and its statutory regulations, complementary and related; and to the approval of the Promotion Plan of Private Investment of the Cable Railway Project of Choquequirao.

1.4.6 We consider, without proof to the contrary, that all Stakeholder, Short-listed Stakeholder, Bidder or person that, directly or indirectly participates in the Bid knows the content of the Bid Terms and the Laws and Applicable Provisions, which are listed below without limitation:

Political Constitution of Peru.

Law N° 26887, General Corporate Law.

Law N° 27785, Organic Law of the National System of Control and of the Comptroller General of the Republic.

Law N° 28059, Framework Law of Promotion of Decentralized Investment.

Legislative Decree Nº 674, Law of Promotion of Private Investment of the Companies of the State, its statutory regulations, complementary and related.

Supreme Decree Nº 070-92-PCM, Regulation of the Law of Promotion of Private Investment of the Companies of the State.

Supreme Decree Nº 059-96-PCM, Consolidated Text of the regulations with rank of law that regulate the concession to the private sector of public works of infrastructure and public services, its statutory regulations, complementary and related.

Supreme Decree Nº 060-96-PCM, Regulation of the Consolidated Text of regulations with rank of law that regulate the concession to the private sector of public works of infrastructure and public services.

Law Nº 27111 by which the transfer of PROMCEPRI to the COPRI is approved and of decentralized organisms to several ministries.

Supreme Decree Nº 027-2002-PCM, whereby the merger of COPRI, CONITE and PROMPERÚ is available in the FOPRI Executive Direction.

Supreme Decree Nº 095-2003-EF that specifies functions and changes the


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denomination of PROINVERSIÓN to Agency of Promotion of Private Investment.

Law Nº 28660, Law that determines the legal nature of the Agency of Promotion of Private Investment - PROINVERSIÓN.

Law Nº 26885, Law of Incentives to Concessions of Infrastructure Works and Public Services.

Legislative Decree Nº 1012, that approves the Framework law of Public-Private Partnerships for the generation of productive employment and dictates regulations for streamlining processes of Promotion of Private Investment.

Supreme Decree Nº 146-2008-EF, Regulation of Framework Law of Public-Private Partnerships and its amendments.

Supreme Resolution N° 010-2012-EF, by which the incorporation of the Special Committees of PROINVERSIÖN are modified and the Committee of PROINVERSION is created in Projects of Infrastructure and Social Public Services, Mining, Sanitation, Irrigation and Agrarian Issues - PRO DESARROLLO.

Agreement N° 551-1-2013-CPD, dated October 24, 2013, by which the Steering Council of PROINVERSIÓN assigned to the PRO DESARROLLO Committee, the Choquequirao Cable Railway Project .

Ministerial Resolution N° 083-2013-EF/10 by which the Regulation of Organization and Functions of PROINVERSION was approved.

1.5. Powers of the Committee 1.5.1 The Committee’s function is to drive the process of promotion of private

investment that motivates the Bid subject matter of the Bid Terms. Is empowered to promote, program, regulate, direct, supervise, control, dictate all the corresponding provisions or that it may deem as necessary for the execution of this Bid, solve everything not foreseen in the Bid Terms or in the Applicable Laws and, in general, to exercise all other attributions assigned by the Laws and Applicable Provisions.

1.5.2 The Committee may modify the terms indicated in these Bid Terms. This Bid may be suspended or cancelled if the Committee deems appropriate, without the need of expression of cause and without incurring in responsibility as a consequence of it. Any modification made to these Bid Terms shall be communicated through Circulars to the Stakeholders, Short-listed Stakeholders or Bidders, according to the provisions made in Section 3.1.3.

1.5.3 The mere submission of information foreseen in these Bid Terms and/or requested by the Committee for purposes of the qualification by a stakeholder does not oblige the Committee to declare him as Short-listed Stakeholder, neither the submission of a Proposal obliges the Committee to accept it. The mere submission by the Stakeholder of the documents necessary to qualify, implies the full knowledge, acceptance and unconditional submission by the stakeholder, Short-listed Stakeholder, Bidder or the Awardee, as appropriate, to all and each one of the procedures, obligations, conditions and rules –without exception – established in the Bid Terms, which have legally binding character for them, as well as its irrevocable and unconditional waiver to raise, before any court or authority, any action, claim, demand or claim for compensation against the State of the Republic of Peru, PROINVERSIÓN, the Committee, its members, advisors, or any other entity, organism or officer of the government of the State of the Republic of Peru for the exercise of the power foreseen in these Bid Terms.


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1.5.4 The decisions of the Committee or of PROINVERSIÓN with relation to this Bid

are definitive, shall not give place to any kind of compensation and are not subject to Challenger in the administrative or judicial fields, except for the provisions expressly established in these Bid Terms. Consequently, for the mere participation in the Bid, the persons who are comprised under the scope of these Bid Terms waive to file any appeal against said decisions.

1.6. Concession Contract 1.6.1 The Project of the Contract shall be put at the disposal of the Stakeholders

according to the provisions made in the Schedule of Annex N°11 of the Bid Terms, through Circular.

1.6.2 The Stakeholders may submit suggestions to the Project of the Contract within

the terms indicated in Annex N° 11, with the same formalities foreseen in Sections 3.1.1. and 3.1.2. The Committee shall not be obliged to gather the suggestions formulated to the Project of the Contract.

1.7. Bid Schedule The dates of the activities of the Schedule of the Bid are indicated in Annex N° 11. The Committee may modify the dates of the Schedule at any time, which will be communicated through Circular.

1.8. Interpretation and references 1.8.1 The terms and expressions used in the Bid Terms shall be construed in their

natural and obvious sense, unless they have specifically been assigned another meaning in this document or its annexes, or we may infer from the context of the same; and in any case, according to the regulations in force in the State of the Republic of Peru. We shall consider, without admitting proof to the contrary, that all participants in this process knows the laws and regulations in force in the State of the Republic of Peru and applicable to this case.

1.8.2 The titles of sections, annexes, forms and appendices of the Bid Terms are exclusively used for indicative purposes and shall not affect the interpretation of their content.

1.8.3 In case of contradiction between what is foreseen in the Bid Terms and the

provisions in some of its annexes, the provisions in the Bid Terms shall prevail, unless that in annexes we have expressly clearly and unequivocally that its content modifies the provisions of the Bid Terms. In all cases, the contents of the “amendments” and Circulars referred in the Bid Terms, prevail over the provisions of the Bid Terms although they are not expressly declared.

1.9. Technical Background at the disposal of Stakeholders

Existing Studies shall be put at the disposal of the Stakeholders in the Data Room referred in Section 3.2. The list of these documents is shown in Appendix 1 of Annex N° 9.

The Stakeholder has wide freedom to use said information; however, the


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Proposal delivered by him is of his exclusive responsibility, failing in future, as Concessionaire or in any other instance, to plead or claim damages, indemnifications neither compensations for eventual mistakes, omissions, inaccuracies or deficiencies of any nature existing in said background and studies.

2. AUTHORIZED AGENTS AND LEGAL REPRESENTATIVE

2.1 Authorized Agents

2.1.1 Appointment of Authorized Agents

Each Stakeholder may appoint two (02) natural persons with common domicile in the city of Lima or Callao as its Authorized Agents, for purposes of this Bid.

2.1.2 Appointment Letter

The appointment of Authorized Agents should be made through a simple letter subscribed by the Stakeholder expressly indicating their powers and indicating the information that corresponds, according to indications made in Sections 2.1.3 and 2.1.4.

2.1.3 Powers Granted

Duly appointed Authorized Agents may act indistinctly to each other and not necessarily jointly and shall be the only natural persons empowered by the Stakeholder to: I. Represent the Stakeholder before PROINVERSIÓN, the Committee and the

advisors, on all issues, that are not of exclusive competence of the Legal Representative according to Section.2.1;

II. Reply, in the name of the Stakeholder and with binding effect for its principal, all the questions formulated by the Committee;

III. Receive legal or extrajudicial notices; IV. Subscribe, with binding effect for the Stakeholder, the Non-Disclosure

Agreement referred in Section.2.2. V. Submit Envelope N° 1, without prejudice of the formalities that the same

should comply. 2.1.4 Information

The information that the Stakeholder should provide with relation to each one of the Authorized Agents shall be the following: name, identification document, common domicile in the city of Lima or Callao, telephone numbers and e-mail.

2.1.5 Notifications

All the extrajudicial notifications addressed to the Stakeholder may be made to any of the Authorized Agents through electronic mail, in which case it shall be understood as received on the date of its forwarding; or by letter delivered by courier or notarized, in which case the notification shall be understood as received on the date of its delivery, understanding that any notification is efficiently made in the common domicile indicated by the Authorized Agents referred in Section.1.4.


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2.1.6 Replacement

The Stakeholder, prior written communication addressed to the Committee that complies with the requirements indicated in Section.1.2., may replace any of the Authorized Agents at any time, or vary the domicile, telephone numbers and e-mail indicated for Authorized Agents. The appointment of Authorized Agents or the variation of their domicile, telephone or electronic mail, as appropriate, has effect since the date in which the corresponding communication issued by the Stakeholder is received by the Committee.

2.2 Legal Representative 2.2.1 Appointment and Powers

The documents submitted in Envelopes N° 1, N° 2 and N° 3 and, in general, all the documents that a Stakeholder submits with relation to the Bid, should be signed by the Legal Representative of the person who submits said documents and who is duly empowered for that purpose, according to the provisions made in this Section.

The Stakeholder may only appoint two (2) common Legal Representatives to represent him, according to the provisions made in this Section, in order that jointly or individually it should be necessarily specified in the appointment document. The domicile, telephone number and electronic mail of the Legal Representatives, and their replacement, are submitted to the provisions made in Sections.1.4., 2.1.5. and 2.1.6. The Powers granted to each one of the Legal Representatives should include the Powers indicated in Section.1.3., and should be wide enough in order that jointly or individually they may sign, in the name and representation of their principal, all the documents required by the Bid Terms, specifically including, the power to initiate the challenge procedures foreseen in the Bid Terms, sign the documents of submission of proposals and subscribe the contract.

In case that the Stakeholder is a Consortium, the appointment of the Legal Representative of the Stakeholder, should be made through the legal representatives of the integrants of the Consortium that have the Powers for said purpose. Said powers should be credited through the submission of a legalized notarial or consular copy of the power of attorney or similar document. However, in case that the integrant(s) of the Consortium come from a contracting member country (signatory) of the “Agreement Removing the Requirement of Legalization of Foreign Public Documents” adopted on October 5, 1961 in the city of The Hague, Kingdom of the Netherlands, approved by Legislative Resolution Nº 29445 and ratified by Supreme Decree Nº 086-2009-RE, the referred documents should only comply with the conditions established in the referred agreement, provided the corresponding incorporated country has not observed the adherence of Peru.

It is prohibited the common Legal Representative or Authorized Agent in more than one Stakeholder.

2.2.2 Power Submission

The power by which the Legal Representatives are appointed should include the corresponding representation Powers, as well as the information referred in


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Section 2.1.4. Alternatively, the information mentioned in Section 2.1.4. may be granted through a simple letter, with legalized signature of the Legal Representative of the Stakeholder, which shall be submitted jointly with the credentials in Envelope Nº 1. The appointment of a new Legal Representative or the replacement of those initially appointed, may only be in force since the date in which the Committee receives the documents that credit said appointment.

2.2.3 Place and formality of Power

Powers granted in Peru should be evidenced in public deed or in certified notarized copy of the minutes of the corresponding corporate body by which they are granted, if applicable. Powers granted outside Peru appointing the Legal Representatives should be: I. Duly given or legalized before the consulate of Peru that is competent,

enclosing a simple translation into Spanish in case of issuing it in different language;

II. Endorsed before the Ministry of Foreign Affairs of Peru; In those cases in which the grantor of power proceeds from a contracting member country (signatory) of the “Agreement Removing the Requirement of Legalization of Foreign Public Documents” adopted on October 5, 1961 in the city of The Hague, Kingdom of the Netherlands, approved by Legislative Resolution Nº 29445 and ratified by Supreme Decree Nº 086-2009-RE, the Powers granted outside Peru appointing the Legal Representatives shall not require the extension or legalization referred in the foregoing paragraph, and it shall be enough to comply the conditions established in the referred agreement, provided the corresponding incorporated country has not observed the adherence of Peru.

2.2.4 Entries in the Registry Office In no case it shall be required that, at the time of its submission, the powers of the Legal Representative are registered in the Public Registry Office. However, they should be registered in the corresponding Registry Office before the Closing Date in case its represented is the Awardee. This provision shall also be applied to the legal representative of the Supplier of Electro Mechanic Equipment.

3. INQUIRIES AND INFORMATION

3.1. Inquiries to the Bid Terms and Suggestions to the Contract Project

3.1.1. Term to make inquiries and suggestions

Until the dates indicated in Annex N° 11, the Stakeholders and Short-listed Stakeholders, only through their Authorized Agents and/or Legal Representatives, as appropriate, may make inquiries about the Bid Terms and suggestions to the Contract Project.


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3.1.2. Formality of inquiries and suggestions The inquiries and suggestions shall be formulated in written and in Spanish language, and should be addressed to the Committee of PROINVERSIÓN in Project of Infrastructure and Social Public Services, Mining, Sanitation, Irrigation and Agrarian Issues - PRO DESARROLLO, with attention to the Project Leader of PROINVERSIÓN, to the following addresses:

Av. Canaval Moreyra N° 150, Piso 8, San Isidro – Lima, Perú

E-mail: [email protected]

3.1.3. Circulars

3.1.3.1. If the Committee, at any time, deems necessary to clarify, modify or complement the Bid Terms, it shall issue a Circular for said purpose. Said Circular shall be sent to the Authorized Agents to the electronic mail indicated in Section 2.1.4. All Circulars shall be published in the web page of PROINVERSIÓN (www.proinversion.gob.pe).

After the expiration term for the submission of Envelope N° 1, the Circulars shall be only notified to the Stakeholders who submitted said envelope; after the date of communication of the short-listing results, to the Short-listed Stakeholders; and after the submission of Envelopes Nº 2 and 3, only to the Bidders; without prejudice of it publication in the web page of PROINVERSIÓN.

3.1.3.2. The replies of the Committee to the inquiries made according to Section 3 shall

be communicated through Circulars, to all the Stakeholders or Short-listed Stakeholders, as appropriate, without indicating the name of the person who made the inquiry.

The Committee is not obliged to answer inquiries to the Bid Terms that have no relation with this Bid.

3.1.3.3. Circulars issued by the Committee shall be integrant part of these Bid Terms,

consequently for all purposes they are legally binding. 3.2. Accesss to Information – Data Room 3.2.1. Access to Data Room 3.2.1.1. The Stakeholders who have subscribed and delivered the Non-Disclosure

Agreement shall have access to the information related to the Project, which shall be available for its consultation in the Data Room, until the date indicated in the Schedule. Said Data Room is located at Av. Canaval Moreyra N° 150, Piso 7, San Isidro – Lima, Peru.

3.2.1.2. The use of the Data Room should be coordinated with the administration of

Data Room according to the rules established for its operation contained in the “Guide of Users of Data Room”, in Annex N° 9.

3.2.1.3. The Stakeholders, through written communication sent to the Committee by

any of its Authorized Agents or Legal Representative, shall indicate the name of the natural persons that shall have access to the Data Room. The administration of the Data Room shall timely coordinate the effective organization of visits to the Data Room.

http://www.proinversion.gob.pe/


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3.2.2. Non-Disclosure Agreement

The duly represented Stakeholder should sign the Non-Disclosure Agreement that is included in Annex N° 1, in order to access the Data Room.

3.2.3. Content of Information of Data Room

The list of documents enclosed in Appendix 1 of Annex N° 9. The incorporation of any document to the Data Room shall be communicated through Circular.

3.3. Request of Interviews

All Stakeholders, through the Authorized Agents and/or Legal Representatives shall have the right to meet with officers of PROINVERSIÓN, until the day prior to the expiration term for the delivery of its Envelope N° 1 and, in the case of Short-listed Stakeholders, they may do it until the previous day to that established for the submission of Envelopes N° 2 and N° 3, prior coordination for the organization of said interviews.

3.4. Limitations of Liability 3.4.1. Independent Decision of Stakeholders

All Stakeholders should base their decision to submit or not their Technical and Economic Proposal in their own research, examinations, inspections, visits, interviews, analysis and conclusions about the available information and that provided particularly at its own and full risk.

3.4.2. Limitation of Liability The State of the Republic of Peru or any dependence, PROINVERSIÓN, the Committee, or its advisors, are not responsible, neither guarantee, neither expressly nor implicitly, the totality, integrity, reliability or accuracy of the information, oral or written, that is provided for purposes of the Bid. Consequently, no person who participates in the Bid may attribute responsibility to any of the aforementioned parties or to its representatives, agents or dependents for the use given to said information or by any inaccuracy, failure, defect, lack of update or by any other cause not expressly indicated in this Section.

3.4.3. Scope of Limitation of Liability

The limitation indicated in Section 3.4.2 includes, as wide as possible, all the information related to the Bid that is effectively known, to the information not known and to the information that at some time should be known, including the possible mistakes or omissions contained in them, by the State of the Republic of Peru or any dependence, organism or officer of it, or by the MVCS, PROINVERSIÓN, the Committee, its members and advisors. In the same way, said limitation of liability reaches all information, whether supplied or prepared, directly or indirectly by any of the aforementioned parties. The limitation of liability also reaches all the information available in the Data Room, and that provided through Circulars or any other form of communication, which is acquired during the visits to the premises regarding the Bid and those


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mentioned in these Bid Terms, including all its Annexes and Forms.

3.4.4. Acceptance by the Short-listed Stakeholder of provisions made in Section 3.4 The mere submission of short-listing documents shall be, without the need of any later act, the acceptance of all the provisions made in Section 3.4 by the Stakeholder and, the Concessionaire, as well as his irrevocable and unconditional waiver of the widest way permitted by laws and Applicable Provisions, to raise any action, counterclaim, exception, claim, demand or compensation request against the State of the Republic of Peru or any dependence, organism or officer of it, or by PROINVERSIÓN, the Committee, its members, advisors, the MVCS or any of its dependencies.

4. SUBMISSION OF ENVELOPES N° 1, N° 2 AND N° 3

4.1. Submission

4.1.1. Submission of general documentation for short-listing (Envelope Nº 1) The submission of the documentation for short-listing contained in Envelope N° 1, shall be held before the Committee or the person it delegates and in presence of a Notary Public, in the offices of PROINVERSIÓN located in the building at Av. Canaval Moreyra N° 150, San Isidro – Lima, Peru, within the term indicated in Annex N° 11.

4.1.2. Submission of Envelopes N° 2 and Nº 3

The Short-listed Stakeholder should submit an Envelope Nº 2 and an Envelope Nº 3 before the Committee or the persons it shall appoint, in presence of a Notary Public, in the place and hour indicated through Circular and on the date indicated in Annex N° 11.

4.1.3. Submission of Envelopes by Authorized Agent or Legal Representative

Envelopes N° 1, N° 2 and N° 3 may be only personally submitted by the Authorized Agents or by the Legal Representative of the Stakeholder according to Section 2.1.3 and 2.2.1, as appropriate. Documents that are sent by mail, fax or any other kind of communication shall not be accepted or received.

4.2. Language

Unless otherwise expressly provided in these Bid Terms, all documents should be submitted in Spanish language or accompanied by a simple translation into Spanish language. In case of any discrepancy between the texts in both languages, the Spanish text shall prevail. In case of enclosing catalogues or brochures in foreign language which are not required in the Bid Terms, for a better understanding of the credentials, the Committee may request its translation into Spanish language.

4.3. Original Documents and Copies

Envelopes Nº 1 and Nº 2 should be submitted in an original copy and two copies, duly marked as “Original”, “Copy 1” and “Copy 2” in the first page.


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The Affidavits that integrate Envelopes N° 1 and Nº 2, as well as the Technical Proposal and Guarantee of Validity, Validity Term and Seriousness of the Proposal should be submitted in original. The Powers of the Legal Representative of the Stakeholder, as well as the Powers of each one of its integrants, in case of Consortium, should be submitted in original or legalized copy and complying the requirements of Section 2.2.3. Other documents integrating Envelopes Nº 1 and N° 2, may be submitted in simple copy.

4.4. Way of Submission of Envelopes N° 1, N° 2 and N° 3

4.4.1. The envelopes should be submitted conveniently closed and clearly marked on

the obverse with the indications “Envelope N° 1” or “Envelope N° 2” or “Envelope N° 3”, respectively; and the name of the Stakeholder.

4.4.2. Any documentation submitted in the Envelopes should be perfectly legible and

should be clearly foliated, correlatively and initialed on each page by the Legal Representative. Likewise, we should include a detailed list of all the documents included in each Envelope, except Envelope N° 3.

4.4.3. In case of any discrepancy between a figure expressed in numbers and in letters, the amount expressed in letters shall prevail.

4.5. Cost of preparation and submission

The Stakeholder or Short-listed Stakeholder, as appropriate, shall bear the costs or expenses, direct or indirect, incurred related to the preparation and submission of Envelopes N° 1, N° 2 and N° 3, as appropriate. The State of the Republic of Peru or any dependence, organism or officer of it, or PROINVERSIÓN, the Committee or its advisors, shall not be responsible in any case for said costs, whatever is the way of performance of the Bid or its result.

5. REQUIREMENTS FOR SHORT-LISTING: In order to submit Envelope N° 1, we should have acquired the Right of Participation in this Bid; and only legal persons or consortia may submit. All the information submitted in Envelope N° 1, shall be an Affidavit. The Stakeholder in the short-listing stage, who decides to do not participate in the Bid, may transfer its right of participation to a Related Company or to a third party, for which this latter should submit in Envelope N° 1, the Form 4 of Annex N° 4, with legalized signature of the grantor. A person, directly or indirectly, individually or through a consortium may not participate in more than one Technical Proposal and Economic Proposal. In order that the Stakeholder may qualify he should provide, through the submission of Envelope N° 1, the information that is detailed in the following Sections.


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5.1. CONTENT OF ENVELOPE N° 1 (CREDENTIALS)

5.1.1. General Information The Stakeholder should credit his commitment to submit reliable information through the submission of Form 1 of Annex N° 3, that shall be an Affidavit. That form should be submitted to the Committee, duly signed by the Legal Representative of the Stakeholder, which signature should be legalized by Notary Public or by the Consul of Peru in the country where is domiciled and the corresponding endorsement before the Ministry of Foreign Affairs, or with the corresponding Apostille according to the requirements of the “Agreement Removing the Requirements of Legalization of Foreign Public Documents”. The Committee reserves the right of verifying the truthfulness of all the documentation submitted by the Stakeholder during the different stages of the Bid, without entailing a limitation of responsibility of the Stakeholder for the possible insufficiency or lack of truthfulness of data or the submitted information. The lack of truthfulness or insufficiency in data or in the information submitted by the Stakeholder in this Bid detected by the Committee, shall cause the disqualification by the Committee in any of its stages. Any additional document to those indicated of Envelopes N° 1, 2 and 3, will be considered as not submitted, except in the case indicated in the last paragraph of Section 4.2.

5.1.2. Requirements about Technical Capacity

In order to comply with the technical capacity, the Stakeholder should credit at least one of the following experiences:

a. Experience in operation of at least one (1) infrastructure of public service transportation that jointly complies with:

a.1. Movement of …..passengers annually in the last five (05) years, a.2. At least (10) years of experience in operation, counted since the date

of publication of the Bid Terms.

b. Experience in operation in at least one infrastructure of transportation by cable, that transports minimum 90 thousand passengers annually, during the last 05 years, counted since the date of publication of the Bid Terms.

The accreditation of the experience in operation may be made under any of the following options:

i. Through the Stakeholder, or some of the integrants, in case of Consortium,

who has the credited experience..

ii. Through a Subsidiary Company or Parent Company of the Stakeholder or some of its integrants in case of Consortium.

The legal person, who credits the experience in operation, may submit to the Bid only with a Stakeholder. This impediment reaches its Related Companies.

For the accreditation of the requirements in operation indicated in this Section, the following documents should be submitted:


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- If we chose to credit experience in operation in infrastructure in public

service transportation: Form 2 of Annex N° 3, and the certificates or technical declarations should be also submitted according to the requirements of Appendix 1 of Annex N 3.

- If we chose to credit experience in operation of infrastructure of transportation by cable: Form 3 of Annex N° 3, and the certificates or technical declarations should also be submitted according to the requirements of Appendix 1 of Annex N° 3.

5.1.3. Legal Requirements

The Stakeholder should credit the fulfillment of the following legal requirements: 5.1.3.1. That is a legal person or a Consortium, should it credit this requirement through

the submission of the following:

- Simple copy, with simple translation into Spanish if necessary of the constitutive document of the Stakeholder. In case of a Consortium, a simple copy is required, with simple translation into Spanish if necessary, of the constitutive document of each one of its integrants. Alternatively to the constitutive document of the Stakeholder or of the members of the Consortium, we shall accept a simple copy with simple translation into Spanish, if necessary, of the bylaws in force or equivalent instrument issued by the competent authority in its country of origin, whether of the Stakeholder or of the members of the Consortium.

- In case of a Consortium, we shall require simple copy with simple translation

into Spanish, if necessary, of the document by which the Consortium is incorporated.

- An affidavit signed by the Legal Representative of the Stakeholder, in case it

is a legal person, confirming its existence, according to the legal regulations that are applicable pursuant its legislation of origin, written according to the model that appears as Form 1 of Annex N° 4. In case that the Stakeholder is a Consortium, it should submit, instead of the previous form, an affidavit signed by the Legal Representative of the Stakeholder, confirming the existence and solidarity of the integrants regarding the obligations assumed and submitted Affidavits, written according to the model that appears as Form 2 of Annex N° 4. The signature of the Legal Representative in these Affidavits should be legalized by notary in Peru or if the document is given outside Peru, we shall proceed according to the provisions made in Section 2.2.3; and,

- An Affidavit, according to the model that appears as Form 3 of Annex N° 4,

signed by the Legal Representative of the Stakeholder, indicating the percentage of participation in the Stakeholder that corresponds to each one of its shareholders or Partners. In the case of Consortia, said information regarding each one of its integrants shall be also required.

5.1.3.2. That the Stakeholder, or one of its shareholders or integrant Partners, or a

Related Company to the Stakeholder or to one of its shareholders or integrant Partners have been the person who paid or acquired through an assignment of rights, the Right of Participation. To credit this fact, he should submit a copy of the payment voucher issued by PROINVERSIÓN or of the communication by which the transfer is credited on its favor, as appropriate. Additionally, an


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affidavit that explains the link relation between the Stakeholder and said person, according to the Form 4 of Annex N° 4.

5.1.3.3. Have a Legal Representative according to the requirements established in

Section 2.2, crediting him through the submission of the original or legalized copy of the corresponding power, as well as the Powers of each one of its integrants, in case of a Consortium.

5.1.3.4. That the Stakeholder, its shareholders or Partners and, in case that the

Stakeholder is a Consortium, its integrants and the shareholders or Partners of these latter, do not incur in any of the assumptions of unsuitability for the fulfillment of its contractual obligations, through the submission of an affidavit, according to the model that appears as Form 5 of Annex N° 4, signed by the Legal Representative of the Stakeholder.

Once the award is granted, said requirements should be complied by the legal person who subscribes the Contract.

5.1.3.5. That the Stakeholder, its shareholders or Partners and, in case that the

Stakeholder is a Consortium, its integrants and shareholders or Partners of these latter, have waived to invoke or exercise any privilege or diplomatic immunity or other, or any claim by diplomatic via and to any compensation or other with relation to said claim that may be initiated for or against the State of the Republic of Peru, or its dependencies, MVCS, PROINVERSIÓN, the Committee, its integrants, advisors and consultants, under the Peruvian law or under any other legislation with regard to their obligations on these Bid Terms, as well as the Economic Proposal, Technical Proposal and the Contract, through the submission of an affidavit, according to the model that appears as Form 6 of Annex N° 4 or Form 7 of Annex N° 4, signed by the Legal Representative of the Stakeholder.

5.1.3.6. That the advisors of the Stakeholder for this process, have not directly

rendered any kind of services in favor of the MVCS, PROINVERSIÓN or the Committee, within the last year and during the development of this Bid, whether at full time, part time or eventual kind, linked with this process of promotion of private investment, through the submission of an affidavit, according to the model that appears as Form 8 of Annex N° 4, signed by the Legal Representative of the Stakeholder.

5.1.3.7. That the Stakeholder, its shareholders or partners and, in case that the

Stakeholder is a Consortium, its integrants and the shareholders or Partners or these latter, do not have direct or indirect participation in any other Stakeholder, which accreditation shall be made through the submission of an affidavit, according to the model that appears as Form 9 of Annex N° 4, signed by the Legal Representative of the Stakeholder.

For the case of corporations that have their shares in the Stock Exchange, the participation mentioned in the foregoing paragraph, shall be limited to those cases in which it is exercised the control of administration of said Corporation, or of some of its integrants in case of a Consortium, according to the provisions of the Regulation of Indirect Property, Entailment and Economic Group approved by RESOLUTION CONASEV Nº 090-2005-EF-94.10, modified by Resolution CONASEV N° 005-2006-EF/94.10 or regulation that replaces or modifies it. To credit this fact, it shall be enough to submit an affidavit in such sense, written according Form 10 of Annex N° 4 and duly subscribed by the Legal Representative.


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5.1.3.8. Incorporation Commitment

5.1.3.8.1. The Stakeholder should submit an Affidavit expressing its intention to

incorporate a legal person in the State of the Republic of Peru (concessionaire Corporation), which may adopt any of the corporate modalities regulated by the General Corporate Law. In case of Consortium, the legal person should be incorporated with the same integrants of the Stakeholder on the date of submission of Envelope Nº 2.

5.1.3.8.2. The Affidavit format that should be used is in Form 11 of Annex N° 4, or in

Form 12 of Annex N° 4, as appropriate. 5.1.4. Financial Requirement

The Stakeholder should credit in written the strict fulfillment of the following financial requirement:

5.1.4.1. A minimum net equity of fifty five million with 00/100 Dollars (US$ 55 000 000,00) at the closure of the last annual exercise immediately prior to the date in which Envelope N° 1 is submitted.

The level of minimum net assets required may be credited under any of the

following options:

i. Directly by the Stakeholder or by any of its integrants in case of Consortium,

ii. Through the Parent Company or Subsidiary Companies, in case these latter exist, of the Stakeholder or of any of its integrants in case of Consortium,

iii. Through the sum of net assets of each one of the integrants, in case that the Stakeholder is a Consortium, or of the Parent Company or Subsidiary Companies of any of its integrants.

5.1.4.2. The accreditation required in the foregoing Section, should be submitted

according to Form 1 of Annex N° 5, which should be signed in original by the Legal Representative of the Stakeholder.

5.1.4.3. Additionally, we should submit a simple copy of the audited financial statements of the two (2) last years available or similar documents, of the Stakeholder and of its integrants, in case of submitting in Consortium or of the corresponding Related Companies of the integrant Stakeholder, who credit the equity indicated in Form 1 of Annex N° 5.

We shall understand as similar document the Declaration of Income Tax submitted to the National Superintendence of Tax Administration (SUNAT). In case that the Stakeholder, the integrant of the Consortium or its Parent Company or Subsidiary, makes transactions abroad, we shall require the documents similar to those indicated above that are issued in the countries of origin. Said documents should be submitted in Spanish language or other language, requiring a simple translation into Spanish for this latter case.

5.2. Verification of the information submitted before the Committee

Since the submission of the documentation referred in Section 5 and until the


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Closing Date, the Stakeholder is committed to put at the disposal of the Committee all the documents that are requested by it, in order to verify the truthfulness of the submitted documentation, according to said Section. If there is falsehood in the supplied information, the Award of the Bid shall be revoked, proceeding according to the provisions made in Section 10.3.

5.3. Verification of legal Requirements

On the Closing Date, the Awardee and each one of its integrants, in the case of Consortium, should submit to the Committee, the Informative Certificate of not being disqualified for participating in the selection processes neither to contract with the State of the Republic of Peru that issues the Supervisor Organism of Contracting with the State (OSCE).

5.4. Simplification Mechanism

Is the mechanism by which the Stakeholders that would have pre qualified in some process carried by PROINVERSIÓN, may request to the Committee, prior submission of its Envelope N° 1, the issuance of a “Certificate of Good Standing of Short-listing Documents/Credentials” indicating the documentation that they would have submitted in another process for Short-listing purposes or submission of Credentials, and the date of submission of said documentation. This certificate shall not be issued regarding that documentation that is held by PROINVERSIÓN with more than two (2) years of seniority. The Stakeholder who submitted Short-listing documents or Credentials in a certain process, may be only in the obligation of submitting the following, for purposes to request its qualification or submit the credentials to this Bid:

- The Certificate of Good Standing of Short-listing Documents / Credentials, - An affidavit indicating that the documentation referred in the “Certificate of

Good Standing is in force, according to Form13 of Annex N° 4. - New or additional documentation required for short-listing purposes in these

Bid Terms; - Effectiveness of power of the Legal Representative of the Stakeholder and

of each one of its integrants in case of Consortium. - Copy of the payment voucher of the Right of Participation in the Bid. The Committee shall verify the validity of the affidavit, as well as its applicability to the short-listing process to which it is submitted, and shall proceed to make the corresponding assessment according to the provisions made in the Bid Terms.

6. ACT OF SUBMISSION OF THE CONTENT OF ENVELOPE N° 1 AND SHORT-LISTING RESULTS

6.1. Submission of the content of Envelope N° 1 The Stakeholder shall submit its Envelope N° 1 prior appointment, in the place and term indicated for each one. Envelope Nº 1 shall be received by the Committee or by the person it shall delegate and will be opened in presence of a Notary Public; a minutes will be prepared where it is recorded the submission of Envelope Nº 1 of the


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corresponding Stakeholder, and of the quantity of pages of the documentation included in said envelope. In the minutes referred in the previous paragraph, we shall leave evidence of the reception of documents contained in Envelope Nº 1. In case of missing any document requested in Envelope Nº 1, this shall be returned and may be submitted again prior appointment according to the indications made in the foregoing paragraphs and within the term established in the Schedule, leaving evidence in the minutes indicated in the previous paragraph. Likewise and, if applicable, in said minutes we shall leave evidence of the objections formulated by the Stakeholder. In the assessment made after the reception of Envelope Nº 1, in order to facilitate the examination, verification and comparison of data and requirements, or in case of verifying the existence of mistakes or defects in Envelope Nº 1, upon judgment of the Committee or its delegate, the Stakeholder will be encouraged by written communication to correct, specify, clarify or comply the requirement until the term indicated in Annex N° 11, under penalty of being excluded of the qualification. The corresponding replies shall be made in written, according to the provisions made in the previous paragraph, according to the formalities set forth in Section 4.3, through the court registry office of PROINVERSIÓN.

Within the maximum term indicated in the Schedule, the Committee shall issue its pronouncement, determining the Short-listed Stakeholders to participate in the following stages of the Bid.

6.2. Announcement of Short-listed Stakeholders The Committee shall inform the result of the short-listing process until the date indicated in Annex N° 11, for which it shall send a special communication to each one of the Stakeholders that have submitted Envelope N° 1.

6.3. Modification in the conformation of the Short-listed Stakeholder Any Short-listed Stakeholder may conform a Consortium until fifteen (15) calendar days before the submission of Envelopes Nº 2 and N° 3. Likewise, in said term the Short-listed Stakeholders, in case of Consortia, can make changes in their conformation. In both cases they may not be associated with other Short-listed Stakeholders. The new integrant and the Consortium should meet all the corresponding short-listing requirements. If any integrant of the Short-listed Consortium withdraws, he should submit a new Form 3 of Annex N° 4 with the new percentages of participation in the Bid. In no case, the changes may reduce the participation of the Strategic Partner. All documents submitted by virtue of this Section, shall be part of Envelope Nº 1 for all purposes considered in the Bid Terms and the Contract. The changes should be put at the consideration of the Committee within the term previously indicated. The Committee reserves the right to accept these changes;


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without prejudice of which we may only reject the changes in case that the new conformation does not comply the short-listing requirements established in the Bid Terms. The decision of the Committee regarding the qualification shall be final and shall not be open to challenge. For purposes of the provisions made in this Section, the Short-listed Stakeholders should request in written an appointment to the Committee in order to submit the new documentation. The submission shall be made before a Notary Public, with the corresponding issuing of record. The Committee or the person delegated by it, shall be in charge of receiving and assessing the new documentation submitted by the Short-listed Stakeholder which shall modify the conformation. The decision of the Committee shall be communicated in written and individually to the Short-listed Stakeholder who requested the modification.

7. CONTENT OF ENVELOPES N° 2 AND N° 3 7.1. Content of Envelope N° 2

Envelope N° 2 will consist of five (5) documents, according to indications made as follows:

Document N° 1: Affidavit

The Short-listed Stakeholder should submit an affidavit, according to the model that appears in Form 1of Annex N° 6, in which he should indicate the following: That the information, declarations, certification and, in general, all the information submitted in Envelope N° 1 remains in force up to date and shall remain as such until the Closing Date. In case of any discrepancy, at any time of the Bid, between the information submitted in Envelope N° 1 and the reality, said discrepancy should be immediately communicated to the Committee by the Short-listed Stakeholder for its assessment. Document N° 2: Acceptance of Bid Terms and Contract

The Short-listed Stakeholder should submit an affidavit where it is evidenced that he knows the Bid Terms and accepts the final version of the Contract that shall be delivered on the date indicated in Annex N° 11 and is committed that in the eventuality of been declared as Awardee, the Concession Contract shall be signed by the Concessionaire incorporated according to the indications made in Section 5.1.3.8.1. This document should be delivered according to the model included as Form 2 of Annex N° 6. Document N° 3: Guarantee of Validity, Validity Term and Seriousness of the Proposal The Short-listed Stakeholder should guarantee the validity, validity term and seriousness of its Proposal, and should submit a guarantee according to the model indicated in Form 3 of Annex N° 6; the amount shall be communicated through Circular.


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The Guarantee of Validity, Validity Term and Seriousness of the Proposal should be issued by a Banking Company or by an International Financial Entity, according to details in Annex N° 2, which shall be Joint and several, unconditional, irrevocable, without the benefit of excussio, indivisible and automatically enforceable. Said guarantee shall have an effectiveness term of one hundred and twenty (120) calendar days counted since the date of submission of Envelopes N° 2 and 3. The Committee may dispose the compulsory extension of the referred guarantee, and the Short-listed Stakeholder should renew it for the required term. In case it is a letter of guarantee issued by an International financial entity, it may reverse the formality used by the bank to make the transaction, provided it complies with the characteristics indicated in the foregoing second paragraph and it shall be required that the same is confirmed by a Banking Company of Appendix 1 of Annex N° 2. Once it is confirmed, the Banking Company shall be the receiving of the letter of execution and the responsible to make the requested payment. Document N° 4: Technical Proposal The T