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REPUBLIC OF THE UNION OF MYANMAR Telecommunications Operator Tender Evaluation and Selection Committee Nay Pyi Taw
Rules for Pre-qualification Applications Regarding Two Nationwide Telecommunications Licences in the Republic of the Union of Myanmar Pre-qualification Questions and Answers
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This document contains the answers to the questions submitted by Applicants, pursuant to Part 7 of the Prequalification rules.
The answers to these questions have been prepared in good faith on the basis of currently available data. However, Applicants are expected and encouraged to conduct their own financial, economic and commercial due diligence and to rely on their own legal and regulatory advice in respect of all matters relating to the Licence Award Process. Neither the Union Government, nor the Committee, nor any of their employees, or any of their representatives, agents, advisors or consultants (including their respective employees) will have any liability whatsoever to any Applicant (or, if the Applicant is a Consortium, to any Member of the Consortium), its owners or Shareholders, or any other person resulting from use of or reliance on any of the information so provided. Nothing herein constitutes a binding legal commitment by the Union Government, the MCIT or the PTD to take (or refrain from taking) any action.
The Committee reserves the right to take any action, including amending the answers to these questions, which it considers necessary to ensure that the Licence Award Process occurs in a fair, open and transparent manner and in accordance with the laws of the Republic of the Union of Myanmar. In any case in which the Committee does so, it will provide simultaneous notification to all Applicants by publishing the information on the MCIT website (unless otherwise specified).
Capitalised words in this document have the same definition as stated in Part 8 of the Pre-qualification Rules.
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An independent regulator is expected to be in place by 2015, potentially 2 years after the issue of the licences. Many of the issues in the sector that regulatory attention are likely to arise in this 2 year period, so the timing on establishment of the regulator appears to be late? The Union Government has adopted a policy framework for the development of the countrys telecommunications market by facilitating competition in this sector. Is a copy of the policy framework for the development of the telecommunications market available? to make telecommunications services available to the public at affordable prices in both urban and rural areas. Could more information be provided on what the Government considers to be affordable prices
The policy framework is not a specific document. It refers to the fundamental decisions that have been taken by the Union Government to guide the transformation of the telecommunications sector. Please refer to the brief description in the EOI and Prequalification Rules. The Union Government is in the process of developing specific policies governing the telecommunications sector, but has not yet developed specific standards to assess affordable prices. As part of the ITT submissions, the Applicants will need to provide a
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The expression of interest requires a commitment to reasonable tariffs and low initial registration charges. Who will determine these levels? (a) Please define what is meant by the term teledensity (b) Is the definition of tele-density the same as that which is used by the International Telecommunications Union, being the number of either fixed lines connections or mobile subscribers per hundred inhabitants in an area, which of them is the highest? Please confirm that the goal of the Union Government is to reach 75-80% fixed line connections or mobile subscribers per hundred inhabitants in Myanmar by 2015-2016, or if not, please provide exact parameters of this goal. Goal to increase overall tele-density of the country to 75 to 80 percent by 2015-2016. Does this mean it is expected that a new licensee will provide 75 to 80 percent of population coverage or geographic coverage?
The Committee confirms that the goal of the Union Government is to achieve total tele-density of 75-80% by 2015-2016. For the definition of total tele-density, please refer to the answer to question 6.
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It is understood that Myanmar target 75-80% teledensity by 2015/2016 (i.e., understood as number of mobile subscriptions per hundred inhabitants). However; (a) Will there be any population coverage targets associated with the awarded licence? (b) Will there be any area coverage targets associated with the awarded licence? One of the critical issues that we foresee is ensuring that the rollout obligations are expressed primarily in terms of population coverage with longer term obligations to infill geographic regions.
Total tele-density, population coverage and geographic coverage are three different elements, although they are related to each other. Please refer to the definition of total tele-density in the answer to question 6. To reach its goal of 75-80% total tele-density by 2015-2016, the Union Government will set minimum coverage requirements for the licensees. Minimum coverage requirements for the licensees will be contained in the ITT. The specific coverage commitments that an Applicant will make in its ITT submission will be taken into account during the evaluation carried out by the Committee during the Licensee Selection Process. Please refer to the answer to question 6 for the definition of total tele-density. (a) Please refer to the answer to question 8. (b) Please refer to the answer to question 8.
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(a) The Nationwide Telecommunications Licensee will be able to access land. However, the MCIT does not have the right to control land use. Purchase and lease of land is subject to relevant laws and regulations applicable in the Republic of the Union of Myanmar. (b) The new Telecommunications Law is expected to provide that, in the event of any dispute regarding access to private property, the MCIT/PTD will seek to facilitate a resolution and will coordinate as needed with relevant local authorities. Licensees must comply with other substantive legal requirements.
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(a) Under the terms of the draft Telecommunications Law, there is no restriction on the storage of customer data outside of the Republic of the Union of Myanmar. (b) The licensee will be required to comply with requirements regarding the protection of customer data and the provision of required information to the PTD.
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(a) The Licences provide the right to offer the full range of telecommunications services (including Fixed Line Services). However, there will be no general obligation on the licensees to provide Fixed Line Service. (b) Not applicable.
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(a) An initial Licence duration of 15 years is common practice in multiple markets and reflects the Union Governments objectives. (b) The Licence is expected to contain a provision, pursuant to
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When the licence expires after 15 years, will the licensee hold the exclusive option for renewal? Has the Union Government considered the process of licence renewal after initial 15 years? (a) Once the Licence expires after the initial term of 15 years, will the Licence be renewed? If so: (b) Will the Licence be renewed on substantially the same terms? If not, on what terms will the Licence be renewed? (c) Will the Licence be renewed for a further term of 15 years? (d) Will the renewal be at the option of the Licensee (i.e., will the Licence contain a right of renewal)? The Licences are stated to have an initial duration of 15 years, subject to renewal. Will the Licences be subject to renewal only after the end of the initial 15 years, or are there elements of the Licences that may be renewed within the initial 15 years? In Section 1.1, the Licences will have an initial duration of 15 years and subject to renewal. As the licence years is one of key conditions to evaluate the investment of the licence, we suggest Committee must make clear what the renewal terms are prior to issuance of the licence. Please provide more details on the renewal process. Will the renewal be for an additional 15 years? Part 1.1 of the Rules provides that a new Telecommunications Law, which will govern the telecommunications sector, is expected to be promulgated in the coming months. (a) Is the Telecommunications Law currently before parliament for review and if not, when will it go before parliament for review? (b) When will the Telecommunications Law be promulgated? (c) Please confirm that the Telecommunications Law will be promulgated no later than the date on which the Licences are granted to the Licensees. (d) Will any delays in the promulgation of the Telecommunications Law result in changes to the
Please refer to the answer to question 16. The licensee may request renewal of the Licence prior to the expiry of the initial term. However, there will be no need to request renewal for any part of the Licence prior to that time. Please refer to the answer to question 16.
Please refer to the answer to question 16. (a) (b) A draft of the Telecommunications Law has been prepared by the Union Government. The draft was sent to the Parliament in February 2013 and has been reviewed by a commission which provided its comments. The draft Law is now expected to be examined during the next session of Parliament currently anticipated in May this year. Subject to lower and upper chamber review, the Law is expected to be promulgated in June/July 2013. The MCIT remains confident that the timeline above will be met and is taking all measures within its power to facilitate this process. However, MCIT cannot make a binding commitment regarding the promulgation of the Law on behalf of the Parliament. (c) The Licences will be granted shortly after the Licensee Selection Process is complete. As noted above, the MCIT expects that the Parliament will adopt the new Telecommunications Law at
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(a) What is the current status of the new Telecommunications Law? (b) Will the new Telecommunications Law be subject to meaningful consultation, including an opportunity to make a submission? (c) What is the best estimate as to when the two new licences will be granted (as opposed to when the two new successful licensees will be announced? (d) Assuming the new Telecommunications Law is not promulgated before the new licensees are determined, can the new licences be granted under the old law as outlined under Section 3.4.2 of the ITU Wireless Broadband Masterplan? If so, how will the possible conflict with the State Economic Enterprise
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Is there any initial information about the Telecommunications Law to be promulgated? As explained in the Rules, a new Telecommunications Law, which will govern the telecommunications sector, has not yet been promulgated, although it is expected to be promulgated in the coming months. Please provide the Committees understanding on any relationship or impact, if any, that the new Telecommunications Law can have on the Licence Award Process In the event the new Telecommunications Law is not promulgated as expected in the coming months, is it expected that the future Licensed Award Process milestones (as set forth in Section 1.1 of the Rules) will accordingly be postponed or delayed? Please provide an overview on the relationship, if any, between the timelines for the new Telecommunications Law and the Licensed Award Process. (a) Would details of the new Telecommunications Law be available before the end of the Tender process? (b) Please comment on how enactment of the Law may affect the issuance of the new licences and corporatisation of MPT. (a) When will the implementing rules (Telecommunications Rules) be issued? (b) Will a draft of the Telecommunications Rules be released publicly before they are issued and if so, when? (c) Will Pre-qualified Applicants be provided with a copy of the then current draft of the Telecommunications Rules on 11 April 2013, i.e., at the same time the Pre-qualified Applicants are provided with the Invitation to Tender and draft Licence? (d) Will the Telecommunications Rules be issued before either 27 June 2013 or the time at which the Licences are granted?
(a) Please refer to the answer to question 23. (b) Please refer to the answer to question 23.
(a) (b) (c) (d) (e) The Committee assumes in this question that Telecommunications Rules refers to regulations currently being developed by MCIT/PTD, such as interconnection and access. Please refer to the answer to question 1. MCIT/PTD has begun work on these rules. MCIT/PTD anticipates that these rules will be consistent with international best practices, as applied to the specific conditions in the Republic of the Union of Myanmar. Once the draft rules have been completed, an opportunity for consultation will be provided. To provide more clarity to potential investors, an Information Memorandum will be released as part of the ITT that will contain a description of the regulatory framework that is expected to be adopted. In addition, the draft Licence will contain provisions regarding the regulatory regime that will be applied.
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Section 1.1 in page states two Nationwide Telecommunications Licences will then be granted to the Myanmar-registered companies that must be established by the selected Pre-qualified Applicants (a) Please specify the time to establish these Myanmar-registered companies: before or after the announcement of the two selected Pre-qualified Applicants. (b) How long does it usually take to establish this
(a) The selected Pre-qualified Applicants are required to establish a Myanmar-registered company, to which the Licence will be granted. The ownership structure of this Myanmar-registered company must be fully aligned with the proposed ownership structure specified in the Application. If the Applicant is a single entity, the Myanmarregistered company must be fully-owned by the Applicant. If the Applicant is a Consortium, the Myanmar-registered company must have equity interests that are aligned with the equity interests proposed by the Consortium, as stipulated in Part 4.4 (b) of the Rules. (b) Please refer to part (a) of this answer. (c) MCIT expects that a successful Applicant will be able to establish a 100 percent owned Subsidiary (holding company) which, in turn, could hold a 100 percent Ownership Interest in the Myanmarregistered company to which the Licence will be granted. If the successful Applicant is a Consortium, the Members of the Consortium may establish a holding company, provided that their Ownership Interest in the holding company precisely mirrors the equity interests specified in the Application. As an example, the holding company, in turn, would be required to have a 100 percent Ownership Interest in the Myanmar-registered company to which the Licence will be granted. Any alternative arrangements would need prior approval. (d) Please refer to part (c) of this answer. (e) The statement in Part 2.2 defines that a Pre-qualification Applicant may adopt whatever membership structure it chooses: the Applicant may be a single entity or a Consortium. If the Applicant is a Consortium, it may include both entities that are Operators and entities that are not Operators. Similarly, a Consortium may include both foreign and local companies. However, once an Applicant has chosen the membership structure with which it applies for Prequalification, it will need to maintain this membership structure. (a) The Myanmar-registered company may be established before or after the announcement of the two selected Pre-qualified Applicants, but must be established no later than the award of the Licence. Please also refer to the answer to question 30. (b) The laws and practices governing investing and establishing a company in Myanmar are undergoing rapid changes. The incorporation of a foreign Myanmar-registered company and registration of a Myanmar branch of a foreign company in Myanmar are subject to the procedures and requirements set out in the
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two Nationwide Telecommunications Licences will then be granted to the Myanmar-registered companies that must be established by the Prequalified Applicants. (a) Does this mean that Pre-qualified Applicants will be required to set up local incorporated companies in anticipation of obtaining the Licence? (b) Please could also you advise at what point it is envisaged that this company is to be incorporated as we have been advised that registration may take up to a couple of months? (c) Will the proposed Nationwide Telecommunications Licensee be permitted to apply to the Myanmar Investment Commission (MIC) for a permit and incentives under the 2012 Foreign Investment Law and, if so, at what stage should the MIC process be undertaken? (a) Can it be confirmed that the Myanmar-registered company does not need to be incorporated prior to the selection of the two successful Pre-qualified Applicants? (b) Will the Union Government assist each of the two successful Pre-qualified Applicants to incorporate a Myanmar-registered company as quickly as possible, including under the Foreign Investment and Company Registration processes? The Licences will be granted to Myanmar-registered companies that must be established by the selected Pre-qualified Applicants. Can the Myanmar-registered company be registered only after the award of the Licences or must it be established before the submission of the Licences? Questions on the Invitation to Tender and comments on the draft Licence due (a) Will this process allow for submissions and consultation on the draft licence, as well as face-toface meetings? (b) How will the draft licence be affect should the new Telecommunications Law, and the licensing and other
(a) The Myanmar-registered company does not need to be incorporated prior to the selection of the two successful Pre-qualified Applicants. Please also refer to the answers to questions 30 through 32. (b) Please refer to the answers to questions 31 and 32.
(a) Pre-qualified Applicants will have the opportunity to provide comments on the draft Licence by e-mail as part of the Q&A process associated with the issuance of the ITT. However, in the interest of transparency, no face-to-face meetings to discuss the draft Licence (or any other aspect of the Licence Award Process) will take place prior to the completion of the Licensee Selection Process. (b) Please refer to the answer to question 23.
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The deadline for submission of Questions on the Invitation to Tender and comments on the draft Licence has been established in order to allow sufficient time for Pre-qualified Applicants to formulate questions and comments on the draft Licence. Accordingly, the deadline will not be brought forward. The Committee confirms that the provisional timetable of Part 1.1 of the Rules is still valid. The Committee reserves the right to amend the Rules, including the timetable. The Committee is committed to ensuring transparency in the Licence Award Process. In any case in which the Committee amends the Rules, it will provide simultaneous notification to all Applicants by publishing the information on the MCIT website or by sending emails to the Authorised Representatives. (a) There is no requirement for local participation in the telecommunications sector under the Foreign Investment Law and Foreign Investment Rules. (b) There is no maximum shareholding that foreign investors can have in the future Myanmar-registered company that will hold the Licence.
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The new Telecommunications Law that is expected to be promulgated in the coming months envisages that enabling regulations will also have to be passed. When are these enabling regulations expected to be passed? Will this be before the Licences are awarded th on 27 June 2013? New Telecommunications Law Request you to please provide details of the annual licence, spectrum, frequency, and any other regulatory fees that an operator will have to bear. Please confirm that all information published on the website of MCIT that relates in any way to the Prequalification or Licence Selection Process will be
Yes, licensees are expected to be able to build and operate international gateways, subject to promulgation of the draft Telecommunications Law and issuance of appropriate regulation regarding this matter. More information regarding the scope of the Licence will be provided in the draft Licence. The Licence will authorise the provision of a comprehensive range of telecommunications services, including Fixed Line Services. More information regarding the scope of the Licence will be provided in the draft Licence. Please refer to the answers to questions 1 and 29.
Details on the annual Licence, spectrum, frequency, and any other regulatory fees that an Operator will have to bear will be provided in the ITT document and draft Licence. The Committee confirms that all information published on the website of MCIT that relates to the Pre-qualification or Licensee Selection Process will be published in the English language.
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(a) The identity of the members of the Committee and the advisors of the Committee are not public. (b) Not applicable. The evaluation of the ITT submissions will be based on the comparative evaluation methodology. In a comparative evaluation, or beauty contest, the award of the Licence is determined on the basis of a merit-based assessment of competitive Applications. Each Application is evaluated on the basis of a pre-established set of selection criteria. This comparative evaluation will include a scoring of each Applicant based on the different selection criteria. The specific details on the selection criteria and weighting will be provided in the ITT document. An explicit, pre-defined set of selection criteria will be used to assess and score Applicants during the Licensee Selection Process. A provisional set of selection criteria can be found in Annex C of the Rules. A final set of selection criteria and their weighting will be provided in the ITT document. Please also refer to the answer to question 45. All Pre-qualification Applicants that meet the requirements set out in the Rules will become Pre-qualified Applicants. No target number or maximum number of Pre-qualified Applicants has been set by the Committee. Please refer to the answer to question 47.
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Is there an explicit set of criterias that will be used to assess and score applicants?
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Requirements for Prequalification Requirements for Prequalification Requirements for Prequalification Requirements for Prequalification
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How many Pre-qualification Applicants will be shortlisted for the Licensee Selection Process? Is there a target number that the Selection Committee is hoping to achieve? How many Applicants will be invited to participate in the third stage of the process? How many companies are likely to be invited to the third stage of the licence award process? (a) How many applicants will be chosen as prequalified? (b) How many are bidding now to be pre-qualified? Who are they? (c) Is there any information about our competitors?
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Beyond the stated requirements as per Section 2 of the Rules for Pre-qualification Applications (i.e., Primary Experience, Secondary Experience, Financial Experience, Regulatory Compliance, not currently authorised to provide public telecommunications services in Myanmar and no duplicate applications), what other criteria, if any, will Pre-qualification applicants be evaluated against?
(a) Please refer to the answer to question 47. (b) (c) The list of Applicants seeking to become Pre-qualified Applicants will be announced during the opening session of the Prequalification Applications on April 4, 2013, pursuant to Part 3.6 of the Rules. The list will also be posted on the MCIT website within 48 hours after the opening session. At the end of the Pre-qualification stage, by April 11, 2013, a list of Pre-qualified Applicants will also be published on the MCIT website. The substantive requirements for pre-qualification are contained in Part 2 of the Rules. However, Pre-qualification Applications must also comply with the Application procedures in Part 3 of the Rules and must provide the information required in Part 4 of the Rules.
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If the applicant is a consortium and the consortium does not meet the pre-qualification criteria outlined in Section 2 of the Rules for Pre-qualification, can the members of the consortium negotiate (separately or collectively) with other individual applicants that did meet the prequalification requirements and form a new consortium for the third stage of the tender? If so, how does the pre-qualified applicant notify the Committee of these changes? Can two local entities with overlapping ownership submit separate Pre-qualification Applications with different experienced operators?
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Could you please give more detailed description on criteria for applicant to be selected as pre-qualified applicant? Our view is the requirement of Secondary Experience in Section 2.1 is not a necessary indicator for evaluating the ability of a mobile operator. It will narrow the opportunity to attract operators to participate the development of telecom in Myanmar. We have tremendous global experience in launching new telecom operators in a dozen of developing countries. In accordance with the international practice, we strongly suggest to remove the requirement of Secondary Experience or revise it as an optional item. Regarding section 2.1.1, where the Experienced
As stipulated in Part 2.4 of the Rules, an Applicant may only submit a single Pre-qualification Application. If the Applicant is a Consortium, then: (a) no Member of the Consortium may submit a separate Prequalification Application; (b) no Member of the Consortium may be a Member of any other Consortium that submits a Pre-qualification Application; and (c) neither any entity that is a Controlling Interest Holder in a Member of the Consortium, nor any entity in which a Member of the Consortium is a Controlling Interest Holder may submit a Prequalification Application or be a Member of any other Consortium that submits a Pre-qualification Application. Please refer to the answer to question 51.
The Committee has carefully defined all the requirements set out in the Rules. The secondary experience is required so as to demonstrate the ability of the Applicant or the Experienced Operator, in case the Applicant is a Consortium, to operate outside of one country. The Committee will not remove the secondary experience requirement nor make it an optional item.
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The four year ownership requirement is as of the date of submission of the Pre-qualification Application, i.e. April 4, 2013. The four (4) consecutive years applies both to the minimum of 50.1 percent Ownership Interest and Management Control.
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To demonstrate primary and secondary experience, Annex F Telecommunications Operating Licence Details of the Rules must be filled in. The Applicant may provide additional detail as it deems appropriate provided that: a) it is placed in the correct section of the submission in accordance with the specified checklist; and b) the maximum page limitation is respected. Please refer to the answer to question 63.
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Because the Experienced Operator must have the largest Ownership Interest of any Member of the Consortium, only one entity can qualify as the Experienced Operator. The Applicant must certify that, among other elements, the Experienced Operator meets by itself all the Pre-qualification requirements set out in 2.1.1 through 2.1.4. Please refer to the answer to question 65.
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The Committee confirms that the primary and secondary experience requirements set out in Parts 2.1.1 and 2.1.2 of the Rules cannot be satisfied by a Controlling Interest Holder of, or Significant Shareholder in, the Applicant, but must be satisfied by either the Applicant itself or a direct or indirect Subsidiary of the Applicant.
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The Committee confirms that the number of subscribers refers to active subscribers as defined by the ITU.
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The purpose of the secondary experience requirements is to enable an Applicant to demonstrate that it currently has the experience to build and operate a telecommunications network in a second country. Therefore, the Applicant must demonstrate that it currently has at least a thirty (30) percent Ownership Interest and a Significant Management Responsibility (and has had so for no less than 3 consecutive years) in any Operator (or is the Operator itself) that had a minimum of 1,000,000 mobile subscribers as of December 31, 2012. The Rules do not allow an Applicant to satisfy the size of the Operator requirement based on the number of subscribers that the Operator had during a prior point in time.
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As defined in Part 8 of the Rules, an entity has Significant Management Responsibility over another entity when the first entity has the authority to make decision or otherwise engage in practices or activities that determine or significantly influence one or more material aspects of the day-to-day operations of the second entity.
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Please refer to the answer to question 71. Parts 2.1.1 and 2.1.2 require, amongst other things, that the licensee have an Ownership Interest in one Public Telecommunications Operator with 4 million mobile subscribers and in a second Public Telecommunications Operator with 1 million mobile subscribers. The Rules do not permit an Applicant to aggregate multiple smaller operations to satisfy these requirements. After careful consideration, the Committee established these requirements that are consistent with the Union Governments fundamental objectives and appropriate to assess, amongst other elements, whether an Applicant has the experience necessary to deploy a network of sufficient size to serve the population in the Republic of the Union of Myanmar. Consequently, the Committee will not amend the requirements specified in Parts 2.1.1 and 2.1.2 of the Rules.
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The purpose of the financial experience requirement set out in Part 2.1.3 is that only Applicants who have been able to provide funds or obtain financing to support the construction and operation of at least one Public Mobile Telecommunications Network will be prequalified. No statement relating to current financial capability allowing the funding of a future construction and operation is required. In the ITT submission, Pre-qualified Applicants will need to include a financial plan, including financing strategy. At this pre-qualification stage, no third party endorsement to support an Applicants demonstration of availability of funds to support operations is required. Please also refer to the answer to question 76. In the Pre-qualification Rules, Part 2 contains the criteria that an Applicant must meet in order to be pre-qualified. Part 4 contains the information that an Applicant seeking to become pre-qualified needs to submit in order to prove that it meets the criteria stipulated in Part 2. That is why Part 2.1.3 of the Rules contains the financing requirement (i.e., that an Applicant has been able to obtain financing to support the construction and operation of at least one Public Mobile Telecommunications Network), while Part 4.9 contains the required information to be submitted by the Applicant to demonstrate the requirement of Part 2.1.3. Annex G Financing Activity Details contains the form to be used for this purpose. For the definition of unsuccessful financing, please refer to the answer to question 211. (a) Certification must be done using Annex H Regulatory Compliance Details. As stated in Part 4.10, the Applicant must provide confirmation that all telecommunications Licences or Authorisations for the provision of Public Telecommunications Services held by the Applicant, any entity that has a Controlling
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The Applicant must certify that any telecommunications Licences or Authorisations for the provision of Public Telecommunications Services held by the Applicant, any entity that has a Controlling Interest in the Applicant or any entity in which the
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Regulatory compliance
Section 2.1.4 of the Rules requires an Applicant to demonstrate that neither it or any entity that has a Controlling Interest in the Applicant nor any entity in which the Applicant is a Controlling Interest Holder has had a telecommunications licence revoked, suspended or substantially modified, or has entered into a settlement agreements in relation thereto arising out of the licensees alleged failure to comply with any legal or regulatory provision related to the provision of telecommunications services or with the inability to meet pre-established Licence terms. Please clarify the exact scope intended by the phrase in quotation marks above. For instance, does the scope of Section 2.1.4 include revocation, suspension or substantial modification of a telecommunications licence arising out of the licensees alleged activities that do not specifically relate to its failure to comply with the terms and conditions of a licence?
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(a) Yes, the statement means that an Applicant may be either a single entity or a Consortium. (b) Please refer to the answer to question 30.
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The Committee will not make any distinction between foreign and local Applicants, as long as the submission is in accordance with the Pre-qualification Rules.
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If the Applicant is a Consortium, references to the Applicant refer to all Members of the Consortium. In this case, the Application submitted by the Consortium must include a confirmation that the Experienced Operator (a) meets by itself all the Pre-qualification requirements set out in 2.1.1 through 2.1.4; (b) will have the largest Ownership Interest of any Member of the Consortium (which will be at least forty (40) percent) in the Nationwide Telecommunications Licensee; and (c) will have control over the marketing and technical activities of the Nationwide Telecommunications Licensee. Please refer to the answer to question 65.
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Pursuant to Article 2.2, if combination of primary and secondary experience is allowed so the experience operator may meet some of the pre-qualifications under 2.1.1 through 2.1.4, not all of them. Will it be flexible to meet Pre-qualification requirements by the consortium not only by the experience operator itself? For entities who have submitted EOI separately, can they come together to submit as a consortium (single applicant) for Pre-qualification?
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Entities who have submitted an EOI separately can form a Consortium and submit a Pre-qualification Application as a Consortium, provided that the Consortium is able to satisfy the prequalification requirements.
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2.2
After we registered the Myanmar Company to declare our consortium position, we understand that it may take some time to inject funds according to the allocation of the shares of each consortium members. As such, is it possible, to only show the signed MOU between the consortium members with their stipulated shares? Or do we need to show the available funds in the Myanmar bank to reinforce our joint venture/consortium agreement? In the event an Applicant desires to adopt a Consortium structure for submission of the future Tender, must the Applicant for the Pre-qualification Applications be a Consortium? Or, may an Applicant for the Pre-qualification Application who is a qualified Experienced Operator later participate in the future Tender as a Consortium? After the Pre-qualification Applications have been submitted on April 4, 2013 by an applicant who is a Consortium, will the Applicant subsequently (but before the Responses to the Invitation to Tender currently scheduled for June 3, 2013) be permitted to vary the composition of the members of the Consortium, or in the alternative, for the qualifying Experienced Operator comprising the Consortium to submit the Tender by itself? A business partnership between a foreign Applicant and Myanmar enterprises experienced in the industry can provide valuable insight and contributions to the project. In such regard, is inclusion of qualified Myanmar enterprise(s) in the Consortium preferred? Could you confirm that the financing scheme of the consortium/applicant (apart from equity stake owned by each member of the consortium) meaning debt like items (such as vendors financing/shareholder loans/financial institution loans) could be amended over the subsequent phases of the Licence Award
The purpose of the EOI was to provide information regarding entities that might be interested in obtaining a Licence. However, someone who has not submitted an EOI can submit a Pre-qualification Application, provided that it is able to satisfy the pre-qualification requirements. There is no requirement to form a Myanmar-registered company, or demonstrate the availability of funds in a Myanmar bank at this stage. Interested parties can form a Consortium for the purposes of submitting a Pre-qualification Application by entering into an MOU, joint venture agreement or similar agreement that specifies proposed Ownership Interest of the entity that will hold the Licence.
92
2.2
After submission of a Pre-qualification Application, an Applicant cannot alter the membership structure of the Consortium if the Applicant is a Consortium. If an Applicant that is a single entity is pre-qualified, it will be required to submit a response to the ITT as a single entity. If an Applicant that is a Consortium is pre-qualified, it will be required to submit a response to the ITT as a Consortium with the identical ownership structure as stated in the Prequalification Application submitted by the Consortium. Please refer to the answer to question 91.
93
2.2
94
2.2
Applicants are not required to disclose their proposed financing arrangements at this time. If an Applicant chooses to do so, the Applicant can amend its proposal after submission of the Prequalification Application, on condition that the proposed equity interests do not change.
21
95
96
2.2
2.2
(a) Please refer to the answer to question 30. (b) As long as the requirements of the Rules are met, a foreign investor would be allowed to own a majority or 100 percent of the Myanmar-registered company that holds the Licence. Please refer to the answer to question 96.
97
98
2.2
2.2 & 8
(a) A Consortium may include Members from the same corporate group. (b) If the Applicant is a Consortium whose Members are from the same corporate group, the Ownership Interest of the Experienced Operator will be based solely on that entitys direct Ownership Interest in the Consortium and will not include the Ownership Interests of any Affiliates. (c) Please refer to the answer to question 30.
99
2.2
(a) Yes. A Consortium can consist of: (i) an entity that qualifies as an Experienced Operator on the basis of its Controlling Interest in a Public Mobile Telecommunications Operator and (ii) one or more entities that are not Operators. (b) The primary and secondary experience requirements can be fulfilled through a Subsidiary, in line with Parts 2.1.1 and 2.1.2 of the Rules. (c) The Experienced Operator must have a minimum 40% Ownership Interest in the licensee, either directly or indirectly.
22
100
2.2
101
102
103
2.2
2.2
2.2
Special requirements for Consortia Special requirements for Consortia Special requirements for Consortia
An Applicant can form a Consortium with Members that did not submit an EOI or that were not mentioned in the EOI. Likewise, if an Applicant mentioned in the EOI that it would form a Consortium with another Member, it is not required to do so and can form another Consortium or submit as a single entity, if it wishes to do so, provided that it satisfies the Pre-qualification Rules. No. Please refer to the answer to question 91. Once an Applicant that is a Consortium has been pre-qualified, it cannot alter the Ownership Interests in the Consortium. No. Please refer to the answer to question 91.
If the Consortium consists of Members that are not Affiliates, then the Member that is the Experienced Operator must have at least 40% Ownership Interest and have the largest Ownership Interest. For example, the Experienced Operator may have 45% Ownership Interest, another Member B 40% and another Member C 15%. However, if Member B and Member C are Affiliates, then the Committee will aggregate the Ownership Interests of Members B and C (i.e., 40% + 15% = 55%). As Members B and C together would have 55% Ownership Interest and jointly would have the largest Ownership Interest, this Consortium would not be allowed if Members B and C are Affiliates. The Committee confirms that the Experienced Operator must have a minimum Ownership Interest of 40% of the Myanmar-registered company to be established by the selected Pre-qualified Applicants. As stated in Part 8 of the Rules, an entity has an Ownership Interest in another entity if: a) the second entity is a corporation and the first entity is the legal or beneficial owner of a percentage of shares in that entity; or b) the second entity is not a corporation, and the first entity has the right to either: (i) a percentage of the profits of that entity or (ii) in the event of dissolution, a percentage of the assets of that entity. Please refer to the answer to question 104.
104
2.2 (b)
105
106
2.2 (b)
2.2 (b)
Is the figure of 40% set forth in section 2.2 (b) of the rules for Pre-qualification Applications refers to equity only? If there are 2 ore more Experienced Operators in a Consortium, how will the requirement that the
As an Experienced Operator must have the largest Ownership Interest in the Nationwide Telecommunications Licensee, there can
23
107
2.2
108
2.2
109
110
111
2.2
2.2
2.2
Special requirements for Consortia Special requirements for Consortia Special requirements for Consortia
No. The Experienced Operator itself must be a single entity. Please also refer to the answer to question 106.
112
2.2
A 50/50 equity structure is not allowed, because the Experienced Operator must have at least 40% Ownership Interest, and also must have the largest Ownership Interest.
113
2.2
114
2.2
The answer to each question is no. Please refer to the answers to questions 106 and 112.
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115
2.2
The Experienced Operator must have at least a 40% Ownership Interest and have the largest Ownership Interest. The Experienced Operator may establish a wholly-owned Subsidiary that will hold its Ownership Interest in the Myanmar-registered company that will hold the Licence. However, the Ownership Interests in the entity that holds the Licence must precisely mirror the Ownership Interests in the Consortium that is pre-qualified, in case of a Consortium. Thus, no entity that is not a Member of the pre-qualified Consortium can have an Ownership Interest in any special purpose vehicle established by the Experienced Operator. While a Consortium may include more than one Operator, only one Member of a Consortium (meeting all applicable requirements and having the largest Ownership Interest) can be designated as the Experienced Operator. The Experienced Operator must have control over the marketing and technical activities of the Nationwide Telecommunications Licensee. Please refer to the answer to question 116.
116
2.2
117
2. Requirements for Prequalification 2. Requirements for Prequalification 2. Requirements for Prequalification 2. Requirements for Prequalification 2. Requirements for Prequalification
2.2
Special requirements for Consortia Special requirements for Consortia Special requirements for Consortia Special requirements for Consortia Special requirements for Consortia
118
2.2
119
2.2
120
2.2
121
2.2
122
2.2
123
2.2
If there are two Experienced Operators in the consortium does the relevant information only need to be provided by the Experienced Operator that has the Controlling Interest in the Consortium? Does the consortium need to be incorporate either prior to submission of the Pre-qualification Application or prior to the third stage Licence award process? If the consortium has 2 equally experienced operators, can the consortium nominate a lead experienced operator, or do both operators have to provide all information? Can the Applicant nominate an entity in which the Applicant is a Controlling Interest Holder to be a direct shareholder in a Consortium after award of a Licence? Will any consent/approval be required? Can the Applicant nominate an entity in which the Applicant is a Controlling Interest Holder to be a direct shareholder in a Consortium after successful completion of the pre-qualification round but prior to award of a Licence? Will any consent/approval be required? Can the shares in a Consortium holding company be sold/transferred after award of the Licence? Within what timeframe? To what extent? Will any consent/approval be required? Can shares in the licensee (operating company) be sold at a later date? Within what timeframe? Will any
Conditions on ownership change of the licensee will be included in the draft Licence. MCIT anticipates that any changes will require the prior approval of MCIT/PTD. Please refer to the answer to question 122.
25
124
2.2
The Experienced Operator must, amongst other requirements, be a Public Mobile Telecommunications Operator or an entity that has an Ownership Interest, directly or indirectly, of at least 50.1 percent in a Public Mobile Telecommunications Operator. Other Members of the Consortium do not need to meet this requirement.
125
2.2
No. In determining whether the Experienced Operator has the largest Ownership Interest in the Consortium, the Ownership Interest of the Experienced Operators Affiliate will not be aggregated with that of the Experienced Operator.
126
2.2
As stipulated in Part 2.2 of the Rules, an Applicant may adopt whatever Consortium membership structure it chooses. A Consortium of two foreign entities and multiple local entities is permitted provided that the Experienced Operator has the largest Ownership Interest in the Consortium and that its Ownership Interest is at least 40 percent. There is no restriction on the number of Consortium Members. No. Please refer to the answers to questions 65 and 106.
127
2.2
Can a local company still show the majority of shares position, and at the same time, the primary experienced operator will still submit the stronger financials and operator experience? There do not appear to be any clearly stated foreign equity limits. The Experienced Operator is expected to hold at least 40% of a consortium and will be the single largest owner and will have control over marketing and technical activities (p. 8-9 PreQual Rules). Are there any foreign equity limits? Is it mandatory to include local interests with equity shares? In the Rules for Pre-qualification Applications the wording the Applicant must certify that is often used, for example in sections 2.2, 2.3 and 3.1. Please could you explain exactly what you expect the
128
2.2
There are no foreign equity limits. It is not mandatory to include local interests with an equity share.
129
2.2-2.3
Certifications can include notarised statements, certifications by regulatory authorities or letters signed by the Authorised Representative. Forms for the Declaration of Adherence and for the sworn statements have already been provided in the Annexes.
26
131
2. Requirements for Prequalification 2. Requirements for Prequalification 2. Requirements for Prequalification 2. Requirements for Prequalification
2.3
Eligibility
132
2.3
Eligibility
As stated in Part 2.3, if the Applicant is a Consortium, the Applicant must make the certification on behalf of each Member of the Consortium. This can be done by the Applicants Authorised Representative. Please refer to the answer to question 130.
133
2.3
Eligibility
Please refer to the answer to question 122. The ten percent restriction applies to entities that are Telecommunications Equipment Vendors. A Member of the Consortium may have more than a ten percent Ownership Interest in an existing entity that provides telecomrelated services that do not constitute either Public
134
2.3
Eligibility
27
135
2.3
Eligibility
136
137
2.3 (a)
Eligibility
The Pre-qualification Application must be organised in the manner specified in Annex E Pre-qualification Checklist of the Rules. The Committee confirms that if the Applicant is a Consortium whose Members are all Affiliates, the submission of an Application by such a Consortium does not breach the prohibition against duplicate Applications set out in Part 2.4 of the Rules. However, the Member of the Consortium that constitutes the Experienced Operator must have the largest Ownership Interest of any Member of the Consortium. If the other Members of the Consortium are Affiliates, then their Ownership Interests will be aggregated. Thus, if every Member of the Consortium is an Affiliate, the member of the Consortium that constitutes the Experienced Operator must have an Ownership Interest of at least 50.1 percent. The Committee will not provide the list of companies which submitted the EOI. However, even without this information, Applicants should be readily able to determine whether they are in compliance with the requirements contained in Part 2.4. The Committee will release the names of each Applicant that is prequalified by the end of the Pre-qualification Process. At that time, each Pre-qualified Applicant should conduct due diligence in order to determine whether it risks disqualification under Part 6.
2.4
No duplicate applications
138
2.4
No duplicate applications
139
2.4
No duplicate applications
Section 2.4 in page 10 stipulates that An Applicant may only submit a single Pre-qualification Application. And Section 6 in page 24 stipulates that This cross-ownership evaluation process will continue until the two selected Pre-qualified Applicants fulfill the cross-ownership requirement specified above. In fact, many groups/corporations have ownership interests either directly or indirectly through their subsidiaries in many countries and with the minority interest they cant control their subsidiaries from submissions of separate EOIs. Will the Committee provide the list of the companies which submitted EOI to help the Applicants avoid the unpredictable disqualification by these rules? If the Applicant is a Consortium. (a) Please confirm that one of the legal entities which comprise the Consortium may submit the Prequalification Application on behalf of the Consortium? In other words, the Consortium is not obliged to have established a legal entity in advance of the submission of: (i) the Pre-qualification Application due date; or (ii) the Responses to the Invitation to Tender due date (b) Can an applicant that is a single entity and that
(a) The Consortiums Authorised Representative should submit the Application on behalf of the Members of the Consortium. A Consortium is not obliged to have established a legal entity in advance of the submission of the Pre-qualification Application due date or the responses to the ITT due date. (b) (c) (d) (e) (f). No. Please refer to the answer to question 91.
28
140
2.4
No duplicate applications
The EOI did not preclude duplicate submissions. However, the Rules for Pre-qualification Applications clearly do not allow for duplicate Applications and will be strictly enforced.
141
2.4
No duplicate applications
142
3. Application Procedures
Application procedures
143
3. Application Procedures
3.1
If both Applicants have an Ownership Interest of 5 percent or more in the same Operator, the Operator will be considered to be a Subsidiary of both Applicants. However, unless the joint venture has a Controlling Interest in both Applicants, they will not be deemed to be Affiliates. While the Committee will disclose the names of each Applicant, all information contained in the Applications will be treated as confidential and will be shared only with the members of the Committee and its staff and advisors. (a) The Applicant will have to submit the letter of designation of the Authorised Representative at the earliest of the three dates stated, not all three dates. The letter of designation of the Authorised
29
144
3. Application Procedures
3.1
145
3. Application Procedures
3.1
The Authorised Representative must have the authority to make binding representations and commitments on behalf of the Applicant or, if the Applicant is a Consortium, on behalf of every Member of the Consortium. Please refer to the answer to question 143.
146
3. Application Procedures
3.1
147
3. Application Procedures
3.1
(a) Please refer to the answer to question 143. (b) Please refer to the answer to question 144.
30
148
3. Application Procedures
3.1
Designation of authorised representative Designation of authorised representative Format and length of application Format and length of application Format and length of application Language
149
3.1
150
3.2
151
3.2
No. Audited financial statements are to be included in the supplementary volumes, for which there is no maximum number of pages. As stipulated in Part 3.2 of the Rules, the format and length requirements apply only to the primary volume and not the supplementary volumes. The Applicant must follow the organisation requirements in Part 4 of the Rules. Please also refer to the answer to question 150. Yes, if a statutory document is in the Myanmar language, it would need to be translated into English. As stipulated in Part 3.3 of the Rules, the Applicant may submit Annexes in the Applicants customary language of operation, provided that they are accompanied by an English translation which is clearly identified as a translation. Translations do not need to be certified. In the event of a conflict between the English and the original text of items submitted in the Applicants customary language of operation, the English text will prevail. (a) The correspondence bank is UOB in Singapore, as stipulated in Part 3.5 of the Rules. There is no alternate bank. In the event that the transfer is rejected, the Authorised Representative should inform the Committee by email (tender@telecomlicenceMM.com) as soon as possible of the failure to transfer the Pre-qualification Application Fee, so that alternate payment methods can be proposed, if required. (b) The Application Fee must be transferred in US Dollars. Please refer to the answer to question 155.
152
3.2
153
3.3
154
3. Application Procedures
3.3
Language
Do translations need to be certified in any way and if so, what are the requirements for such certification?
155
3. Application Procedures
3.5
(a) Can you please advise on alternative correspondence bank if required? (b) Can the application fee be remitted in a different foreign currency in an amount equal to USD 5,000?
156
3.5
157
3.5
Submission of Pre-qualification Application Fee Submission of Pre-qualification Application Fee Submission of Pre-qualification Application Fee
Can the Application Fee be paid in an alternative currency other than US Dollars (e.g. Pound Sterling)? For the application fee (USD$5000), can the bank transfer party different from the applicant itself?
158
3. Application Procedures
3.5
The bank transfer party can be different from the Applicant itself. However, the transfer must be accompanied by a notation stating: Telecommunications Licensing Application Fee and should indicate the name of the Applicant. As stipulated in Part 4.14 of the Rules, the Pre-qualification Application must be accompanied by a proof of payment (receipt or a printed copy of the electronic receipt provided to an Authorised
31
159
3. Application Procedures
3.6
160
3. Application Procedures
3.6
161
3. Application Procedures
3.6
162
3. Application Procedures
3.6
163
3. Application Procedures
3.6
164
3. Application Procedures
3.6
Deadline and means of submission of Applications Deadline and means of submission of Applications Deadline and means of submission of Applications Deadline and means of submission of Applications
Section 3.6 of the Rules for Pre-qualification Applications states that the envelope in which the Pre-qualification Application is submitted shall be sealed. Does this apply only to the original printed version? Or shall we seal the original version and the eight copies? In that case, can we seal each version separately? The section mentions submission of application document in a sealed envelope. Although the Primary Volume is limited to 75 pages, the Secondary Volume can stretch to longer with Company Registration documents and Annual Reports included. Can the submission be done via individually sealed boxes (1 original + 8 copies)? What are the requirements for sealing the application document?
Please refer to the answer to question 159. The envelope can also be a box or package of some sort, as long as it is properly sealed.
Can the Pre-qualification Application be submitted in a sealed package or box or must it be submitted in an envelope? Can the applicant submit the application before th deadline of 4 April 2013?
The Applicant can submit the Application before the deadline of April 4, 2013, 3 PM local time (Nay Pyi Taw, Republic of the Union of Myanmar). As stipulated in Part 3.6 of the Rules, each Applicant may designate no more than two people to attend the pre-qualification opening meeting. The Applicants Authorised Representative must notify the Committee at the following email address: tender@telecomlicenceMM.com, no later than April 1, 2013, at 3 PM local time (Nay Pyi Taw, Republic of the Union of Myanmar) of the names and titles of the attendees. As long as the above procedure is followed, there is no restriction on the identity of the people designated to attend the opening meeting As stipulated in Part 3.6 of the Rules, all Pre-qualification Applications will be opened in the presence of members of the Committee or their representatives and the Applicants who choose to be present at the Pre-qualification opening meeting. There are no additional activities to be conducted at this meeting. The sole purpose of the meeting is to allow an Applicant to confirm that its Application has been received, and to see which other entities have filed Applications. Attendance is on a voluntary basis.
For the pre-qualification opening meeting, are there any requirements on identify of the people attending the meeting? Will any of them need to be the authorised representative or backup representative?
165
3. Application Procedures
3.6
32
167
168
4.2
4.3
169
4.3
Applicant information
If the Applicant is a Consortium, the Applicant must submit the information specified in Part 4.3 for each Member of the Consortium. However, the Applicant is not required to designate a contact person for each Member of the Consortium. Rather, the Authorised Representative should have the authority to make commitments and representations on behalf of each Member of the Consortium. The Applicant should submit the principal bylaws that address basic corporate governance issues such as: how the Board of Directors and/or officers are elected, how meetings are conducted, and the types and duties of officers.
170
171
4.3
Applicant information
4.3
Applicant information
To the extent that Part 4.3 and Part 4.5.2 require similar information, the Applicant should include the information in Part 4.3, and should include a cross-reference in Part 4.5.2 stating that this information has been provided in Part 4.3. Please refer to the answer to question 170.
172
4.3
Applicant information
(a) The principal executive office means the office in which the Chief Executive Officer and other senior executives typically conduct business. (b) As stipulated in Part 4.3 of the Rules, if the Applicant is a Consortium, the Applicant must submit this information for each Member of the Consortium. (c) If the Applicant is a Consortium, it must provide commercial registration documents or equivalent, articles of incorporation and bylaws for each Member of the Consortium.
33
173
174
4.4
Consortium information
4.4
Consortium information
175
4.4 (e)
Consortium information
A copy of a Memorandum of Understanding or similar agreement is sufficient to provide evidence that each Member of the Consortium has agreed to participate in the Licensee Selection Process.
176
4.4 (e)
Consortium information
177
178
4.4 (f)
Consortium information
Any information submitted to the Committee will be treated as confidential. Therefore, no redactions should be made in the documents submitted. The Committee confirms that a letter of intent would be sufficient. However, the parties will not be able to make any changes regarding these matters during the Licensee Selection Process.
4.4 (f)
Consortium information
179
Consortium information
34
180
181
4.5.1
No. The Applicant must provide the names and the nature of the relationship to the Applicant of any entity that constitutes an Affiliate of the Applicant, as that term is defined in the Rules. As stated in Part 4.5.1 of the Rules, the Applicant must submit each of the four categories of information of Part 4.5.1 for each Member of the Consortium, if the Applicant is a Consortium.
4.5.1
182
4. Organisation of the Prequalification Application 4. Organisation of the Prequalification Application 4. Organisation of the Prequalification Application
4.5.1 (d)
183
4.5.1 (d)
General disclosure requirements Information required for Applicants that are Corporations
The information must be provided for any entity that constitutes a Controlling Interest Holder of the Applicant. If the Applicant is a Consortium, the Applicant must submit this information for any entity that constitutes a Controlling Interest Holder of any Member of the Consortium. The Committee has carefully considered the required information and declines to waive this provision.
184
4.5.2
185
4.5.2
186
187
4.5.2
4.5.2 (a)
Request you to please provide the definition for a Corporation. Can you please specify who you mean as registered
As stipulated in Part 3.3, the Applicant may submit Annexes in the Applicants customary language of operation, provided that they are accompanied by an English translation which is clearly identified as a translation. It does not require a certified translation but in the event of differences between the English translation and the original language, the English text will prevail. As described in the Rules, a Consortium is simply a group of two or more entities that have entered into an agreement (such as an MOU) to submit an Application. Individual Members of the Consortium may be corporations. That is, they may be judicial persons established under the laws of a particular jurisdiction. The successful Applicant (whether an individual entity or a Consortium) will be required to form a Myanmar-registered company, which will hold the Licence. Please refer to the answer to question 185.
35
188
4.5.2 (a)
189
4.5.2 (c)
Any party holding an Ownership Interest of more than five (5) percent is required to be included as part of the information required in Part 4.5.2 (c). This includes nominees or trustees. The same details are expected to be provided for indirect Shareholders.
190
The information required concerns the Ownership Interest in each Member of the Consortium, not the Consortium Members proposed Ownership Interest in the licensee.
191
192
4.5.2 (g)
4.5.3
Information required for Applicants that are Corporations Information required for Applicants that are not Corporations
Section 4.5.3 which indicates the information for Applicants that are not Corporations refers to the case where Applicant is a limited liability corporation. Please confirm that such limited liability corporation is not a corporation and clarify the difference between the limited liability corporation and the corporations mentioned in Section 4.5.2 For the purposes of Section 4.5.3, is it sufficient to provide the information required by Section 4.5.2 where the Applicant is a Consortium and a Corporation? Could you confirm, please, whether subscriber numbers and annual gross revenues are required for the primary and secondary experienced operators only, or are these required for all Subsidiary
193
4.5.3
194
Information required for Applicants that are not Corporations Telecommunications operating experience
Key personnel would include senior-level employees of the Applicant such as the Chief Operating Officer, the Chief Financial Officer, Chief Commercial Officer, Chief Human Resources Officer and the General Counsel. Part 4.5.3 should have read limited liability company. The Committee regrets the typographical error. A limited liability company (LLC) is a hybrid business entity having certain characteristics of both a corporation and a partnership. An LLC is an unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. If the Applicant is a Consortium that includes both entities that are corporations and entities that are not corporations, the Applicant must provide the information required in Part 4.5.2 for each Member that is a corporation and the information required in Part 4.5.3 for each Member that is not a corporation. The information needs to be provided for all providers of Public Telecommunications Services for which the Applicant, the Applicants Subsidiaries or the Applicants Significant Shareholders have an Ownership Interest of ten (10) percent or more.
36
195
4.8
196
4.8
197
4.8
What would constitute as Audited Financial statements would it be just the Auditor certified & published financials or the complete Annual report? If the three sets of annual report combined total 450 pages, will the applicant be permitted to include this many pages? If the applicants financial year end is 31 March 2013, does a trading statement issued as at 30 September 2012 qualify as preliminary statement for submission purposes?
The financial experience requirement is contained in Part 2.1.3 of the Rules. In addition, the Applicant must provide the audited financial statements specified in Part 4.8. In the third stage of the Licence Award Process, the Licensee Selection Process, the Prequalified Applicant will be required to submit a financial plan, which will be evaluated by the Committee. The financial statements need to be audited. Either financial statements reviewed and certified by external auditors or annual reports containing the audited financial statements can be submitted. This information must be included in the supplementary volumes, for which there is no maximum number of pages. A trading statement issued as of 30 September 2012 would not qualify as a preliminary statement for submission purposes. As stated in the Pre-qualification Rules, a preliminary statement must be provided. This could, for instance, be in the form of quarterly statements for the first 3 quarters of calendar year 2012 and a preliminary estimate for 4Q 2012. In such a case, Applicants must also certify that the 4Q estimate is, to the best of their knowledge, an accurate representation of the financial statement and that no material changes are expected This would need to be accompanied by an estimate of the date by which audited financial statements for financial year 2012-2013 will be made available. Compliance with the stated requirements will be sufficient for fulfilment of the information required in Part 4.8.
198
4.8
199
4.8
The Applicant must provide its audited financial statements (or Annual Reports containing the audited financial statements) for the last three calendar years (2012, 2011, 2010) or for its last three years financial years, If audited financial statements are not available for the calendar year 2012, the Applicant must provide a preliminary statement along with an estimate of the date by which its 2012 audited financial statement will be made available. Will this be sufficient? 2012 financials of most companies are not fully released at this time, can we support 2012 revenue by unaudited financial reports?
200
4.8
It is our understanding that financial information of major shareholder in a consortium of multiple members are sufficient for meeting financial criteria, is
If audited financial statements are not available for 2012, an unaudited financial report would be acceptable for this period. This would need to be accompanied by an estimate of the date by which audited financial statements for the financial year 2012-2013 will be made available. In such a case, Applicants must also certify that the estimate is to the best of their knowledge an accurate representation of the financial statement and that no material changes are expected in the audited statements. As stated in Part 4.8, the Applicant need only submit audited financial statements (or Annual Reports containing the audited financial statements) for the Consortium Member that constitutes the
37
201
4.9
Financing activities
202
203
4.9
Financing activities
We apply a threshold of USD 1 million for the purpose of listing financing activities as applicable to this section. Please confirm this is adequate. As regards article 4.9 (Financing Activities), do you confirm that the requirement would be fulfilled with a list of financings which have been material in relation to the assets of the Group (defined as either the Applicant or any entity which is a Controlling Interest Holder in the Applicant or any entity in which the Applicant is a Controlling Interest Holder)? By material we mean financings which exceed a certain percentage of the total consolidated assets of the Group. Does Financing Activities include equity financing as well as debt financing?
4.9
Financing activities
204
205
4.9
Financing activities
Yes. Equity financing and debt financing must be included in the list of financing activities and labelled as such in the column Type of financing. Financings which are internal to the Group, such as current accounts, shareholder loans, equity, must be disclosed if they are an undertaking to support financing of any telecommunications operating companies in which the Applicant or any entity that is a Controlling Interest Holder in the Applicant on in which the Applicant is a Controlling Interest Holder, has a ten (10) percent Ownership Interest. These must be included in the list of financing activities and labelled as such in the column Type of financing. Financings external to the group, but directly granted by equity partners must be disclosed if they are an undertaking to support financing of any telecommunications operating companies in which the Applicant or any entity that is a Controlling Interest Holder in the Applicant or in which the Applicant is a Controlling Interest Holder, has a ten (10) percent Ownership Interest. These must be included in the list of financing activities and labelled as such in the column Type of financing. The name of the entity to which the loan was granted should be mentioned in the column Mobile Operating Company or Fixed Line Operating Company with explanatory notes at the bottom.
4.9
Financing activities
Does Financing Activities incorporate financings which are internal to the Group (current accounts, shareholder loans, equity)?
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Financing activities
Does Financing Activities incorporate financings external to the Group, but directly granted by equity partners (for instance shareholder loans put in place by a majority shareholder in an operating company in which the Group has a ten percent Ownership Interest)?
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4.9
Financing activities
How should the table in Annex G be populated in the circumstances where the Financing by the Borrower is not directly linked to a loan to an operating Subsidiary?
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Financing activities
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Financing activities
Yes. The information regarding unsuccessful financial activities is limited to those that have occurred in the last five (5) years.
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4.10
Regulatory compliance
We assume that this section applies only to legal actions that have been taken against the Applicant and related entities. Please confirm that this is the correct understanding.
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4.10
Regulatory compliance
If the Applicant cannot obtain such written confirmation, it must provide a sworn and notarised statement from an officer or director of the applicant. (a) Who can notarise? (b) Can the documentation be notarised outside of Myanmar? If not, can the Telecommunications Operator Tender Evaluation and Selection Committee (the Committee) provide an accelerated process with the Embassy of the Republic of the Union of Myanmar? Or alternatively, would the Committee be willing to accept a sworn statement and evidence that the notarisation process has begun but has yet to complete by the Pre-qualification Applications due date (and an undertaking to provide the Committee with the notarised and consularised sworn statement as soon as it becomes available)? (c) Please confirm that a single sworn compliance statement of an Officer or Director of any member of the Consortium that provides Public Telecommunications Services or that operates a
Unsuccessful financing activities refer to activities for which financing has been sought but not obtained such as, but not limited to, withdrawal of an IPO, failure to secure requested vendor financing, denial of a requested bank loan, etc. Part 4.10 does not apply only to legal actions that have been taken against the Applicant and related entities. It also applies to actions taken by the regulatory or other administrative authorities having oversight of the telecommunications Licences. The Applicant must disclose any actions by any judicial or administrative body that relate to the operation of a Public Telecommunications Network or the provision of Public Telecommunications Services. This would include, for example, actions related to an alleged violation of general competition or consumer protection regulations. (a) (b) (c) Please refer to the answer to question 79. If the Applicant is a Consortium, the Applicant must provide this information for each Member of the Consortium that operates a Public Telecommunications Network or provides Public Telecommunications Services and that would have an Ownership Interest of ten (10) percent or more in the Nationwide Telecommunications Licensee.
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Regulatory compliance
The Committee has carefully considered the information disclosure requirements, and will not waive the requirements contained in Part 4.10.
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4. Organisation of the Prequalification Application 4. Organisation of the Prequalification Application 4. Organisation of the Prequalification Application
4.10 (a)
Regulatory compliance
Please refer to the answer to question 79. In relation to the disclosure requirements the relevant time period is 5 years.
4.10 (b)
Regulatory compliance
4.10 (b)
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Regulatory compliance
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4.10 (c)
Regulatory compliance
As stated in Part 4.10, it relates to Licences or Authorisations for provision of Public Telecommunications Services held by the Applicant, any entity that has a Controlling Interest in the Applicant or any Subsidiaries of the Applicant in which the Applicant has a Controlling Interest. There is no need for the Committee to waive the provision of Part 4.10. As stated in the Pre-qualification Rules, if the regulator will not provide such a certificate of good standing, then the Applicant must provide a sworn statement attesting to same. Please also refer to the answer to question 79.
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4.11
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4.11
Criminal record, bankruptcy, corporate insolvency and litigation Criminal record, bankruptcy, corporate insolvency and litigation Criminal record, bankruptcy, corporate insolvency and litigation Additional Applicant experience Additional
In 4.11, what is required and what should be submitted? Letter of declaration by Applicant?
A person is an officer or director of the Applicant if that person is an officer or director of the legal entity that submits the Application or, if the Applicant is a Consortium, a person who is an officer or director of any legal entity that is a Member of the Consortium. There is no materiality threshold. However, the Committee will not require disclosure of information regarding individual officers or directors related to events that occurred prior to January 1, 2008. There is no time limit on the disclosure of information regarding the Applicant itself. A signed letter of declaration would suffice.
(a) What is the definition of a criminal offence (for example does it include minor monitoring offences)? (b) Does it include prior employments of Officers and Directors of the Applicant? Request that this provision be waived, as it is very wide in scope. We suggest that is be replaced with a requirement of furnishing details of only such judicial or administrative action which either has or which in the opinion of the applicant is likely to lead to cancellation of a telecom licence In case of a Consortium, shall we provide information required in Section 4.12 for each Member of the Consortium or for the Experienced Operator only? Please clarify what this section is seeking to confirm,
(a) A criminal offence is any offence for which, upon conviction, a natural person may be sentenced to a term of imprisonment. (b) The information must be provided regarding any person employed by the Applicant between January 1, 2008 and the present. Please also refer to the answer to question 222. The Committee will not waive the provision of Part 4.11, but has narrowed the scope of the requirement in the manner specified in response to question 222.
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The information should be provided for each Member of the Consortium. The Applicant should indicate any case in which a Member of the Consortium does not have any relevant experience. Part 4.12 requires additional information, such as the extent to
4.12
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4.12 (b)
Additional Applicant experience Additional Applicant experience Additional Applicant experience Additional Applicant experience
The Committee confirms that marketing includes sales and distribution. Part 4.12 (b)(i) requests information regarding the Applicants current marketing capabilities. Financial capability in terms of what the Applicant intends to budget as part of a marketing plan to be developed for the Myanmar business is not required at this stage. The Applicant must disclose both the substance of any commitments that have been made, and the form in which those commitments have been embodied (such as an MOU). The Committee confirms that, if the OpCo is an Applicant, Part 4.12 (b) can apply to a GroupCo that supports the businesses of its OpCos.
4.12. (b)(i)
Does capabilities include financial capability in terms of what we intend to budget as part of a marketing plan to be developed for the Myanmar business? What is meant by nature of any commitments or other arrangements?
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4.12 (b)(iv)
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4.12 (c)
Considering that our company is a GroupCo that supports the businesses of its OpCos, can these sections apply to represent the commitments/arrangements that our company has in support of its OpCos? Is the selection committee looking for any specific form of binding commitment? Can we state that being an Opco, the Myanmar operations will be fully supported by the expertise and capabilities of the GroupCo? What is meant by any binding commitment the Applicant is prepared to make in this regard? It is unclear if binding commitments are being sought here concerning the Applicants proposed marketing and technical plans in Myanmar, for example level of population coverage within a committed timeframe, proposed commitment to SIM prices and retail tariffs Does Public Telecommunications Network include international interconnection and internet POP gateway?
The Committee confirms that a statement saying that the Myanmar operations will be fully supported by the expertise and capabilities of the GroupCo will suffice during this stage. However, if any legally binding commitments have been made, they should be disclosed. The binding commitments referred to relate to support commitments that the Applicant will be willing to provide to its Myanmar operation should it be successful in obtaining a Licence (e.g., a management contract). The Committee is not seeking at this stage any specifics regarding the technical plan the Pre-qualified Applicant will be required to submit in the Licensee Selection Process. Please refer to the answers to question 39.
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5.2
Part 1.1 of the Rules provides that the Pre-qualified Applicants will be selected using the comparative evaluation method. (a) Please provide full details of the evaluation procedure and selection criteria that the Committee will use in reviewing the Application (b) Will Pre-qualification depend on full compliance with all criteria?
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Will all applicants who do not disqualify as per the requirements, be taken into the third stage Licensee Selection Process? Or will their be shortlisting at second stage between qualifying applicants? If yes, what is the marking scheme based on which the prequalification applications in the current stage 2 be evaluated? In the event an Applicant is a Consortium whose members are all Affiliates, please confirm that the submission of an Application by such a Consortium would not breach the prohibition on cross-ownership set out in Part 6 of the Rules.
(a) The evaluation of the Pre-qualification Application will involve an assessment of whether the Application satisfies all the requirements set out in the Rules. The comparative evaluation method does not apply to the evaluation of Pre-qualification Applications, but to the evaluation of the ITT submissions during the Licensee Selection Process. More information on the selection criteria that the Committee will use for the evaluation of the ITT submissions can be found in Annex C of the Rules. More details will also be provided in the ITT. Please also refer to the answer to question 45. (b) Please refer to the answer to question 51. Please refer to the answer to question 47.
The cross-ownership prohibition contained in Part 6 addresses cross-ownership between two separate Applicants, and will apply only at the completion of the Licensee Selection Process. The submission of an Application by a Consortium whose Members are all Affiliates, would not breach this cross-ownership prohibition.
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In this clause, it has been suggested that in the event of cross-holding, the successful bidder having the second highest score will not be declared as a successful bidder. In the bidding process, there might a situation where a Company X is an applicant company where Y holds direct/indirect ownership interest of more than 10% in X. Here, the company Y is also an applicant company. According to the clause no. 6, if company Y holds the highest score and company X holds the second highest score then company X will be disqualified despite the fact that it is the Company Y, which is an Applicant and is also holding ownership Interest in the Company X. We request that in such an event, the company Y should be disqualified even if they receive the highest score and under no circumstances, the bidding of Company X should be disqualified in the event where they
The procedure is designed to ensure that the most qualified Applicant is selected, while not creating an anti-competitive market structure. The Committee will not amend the procedure stipulated in Part 6 of the Rules.
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(a) The advisors or representatives of the Committee, the MCIT and MNPED will not be published. In the event an Applicant contacts one of the advisors or representatives, the advisor or representative will inform them that the communication is not allowed and will promptly terminate the contact. No adverse action will be taken against an Applicant who initiates such a communication, unless the Applicant has actual knowledge of the identity of the representative or advisor. (b) The Committee confirms that any further communications with the Committee will be only the responses to these questions or to respond to a request from the Committee. The Committee is not obligated to invite any Applicant for a meeting. (c) The Committee confirms that the prohibition does not apply to communications with the MCIT or MNPED on matters not related to the Licence Award Process; however, the Committee not only urges extreme caution in any discussions with other departments of the MCIT or MNPED but notes that at no time should the subject of the Licence Award Process be addressed. (d) The Committee confirms that the Applicant, its Shareholders, Subsidiaries or Affiliates and their advisors or representatives may contact the MCIT or MNPED or other government entities, on topics not related to the Licence Award Process provided that they adhere to the conditions stipulated in part (c) of this answer.
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8. Definitions
Definitions
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Definitions
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Definitions
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Definitions
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Definitions
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Definitions
In the event a participant would be asked a question by the committee or the people working for them, can the committee indicate if responding would be in breach of section 7 Communication with the Committee? Does Controlling Interest Holder relate to direct equity interests only or to indirect equity interests as well? Please confirm that the definition of Controlling Interest also includes indirect Ownership Interest in an entity? I.e. if Company A has a 51% Ownership Interest in Company B, and Company B has a 51% Ownership Interest in Company C, will Company A be deemed to have a Controlling Interest in Company C? Please confirm if the definition of Ownership Interest refers only to direct interests or if it also includes indirect/effective interest. As regards the De Facto definition, can you provide any more details on what is covered by the following terms: critical investment, administrative or management decisions, decisive role in the management decisions, to engage in practices or activities that determine or significantly influence the nature of types of services provided Definition of fixed line services refer to international long distance calling does this mean the licence include an International gateway Licence for the transit of international traffic? Nationwide Telecommunications Licence. Please provide further details on the following: (a) whether additional licences will be made available to parties on a regional or other geographic basis in the Republic of the Union of Myanmar (b) whether a Public Telecommunications network includes domestic optical fibre and microwave transmission networks (c) whether a Public Telecommunications Network includes international optical fibre and microwave transmission networks and associated facilities, including submarine landing stations, satellite earth stations and VSAT facilities (d) whether a Public Telecommunications Service includes the provision of international public telecommunications services to end users in the Republic of the Union of Myanmar (Myanmar) and to
The Committee confirms that, in the event an Applicant is asked a question by the Committee or people working for the Committee, the Applicant would not be in breach of Part 7 when it responds to the questions provided the response is effected in accordance with Part 7 of the Pre-qualification Rules. Controlling Interest Holder relates to both direct and indirect equity interests. Please refer to the answer to question 244.
The Committee believes that these terms are self-explanatory and should be readily understood.
(a) The current Licence Award Process has been set up to award two new Nationwide Telecommunications Licences. Other Licences are outside the scope of this Licence Award Process. (b) (c) (d) (e) (f) The draft Licence will allow for the provision of the full range of telecommunications services and will be technology neutral. The precise scope of the Public Telecommunications Licence will be detailed in the draft Licence that will be made available to Pre-qualified Applicants.
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Definitions
The Committee confirms that the percentage reference in the definition of Subsidiary is five (5) percent.
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Definitions
Yes, the Rules do not prohibit WiMAX service and/or so-called mobile virtual network operators to be considered as Public Mobile Telecommunication Services or Fixed Line Services.
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Annexes
Annex A
Market structure
The Union Government has decided that the telecommunications market will consist of four Operators that will provide nationwide Public Telecommunications Services. Regarding the present Licence Award Process, the initial term of the Licence is 15 years. The process of corporatising MPT is in the very early stage. The decision as to whether the share of MPT will be made available to private investors has not yet been made.
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Annex A
Market structure
Please refer to the answer to question 253. Similarly, no decision has been made regarding the future ownership structure of the second Myanmar Operator. (a) (b) The current Licence Award Process has been set up to award two new Nationwide Telecommunications Licences. Other Licences are outside the scope of this process. However, MCIT expects that the licensing regime and the regulation that are currently being developed will ultimately create a level playing field among all four Operators. Please also refer to the answer to
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Annex A
Market structure
This is correct. The Union Government has decided that the telecommunications market will consist of four Operators that will provide Nationwide Public Telecommunications Services. The four mentioned Operators include (i) MPT; (ii) a Consortium of local market participants; and (iii) the two selected Pre-qualified Applicants of the Licence Award Process.
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Market structure
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Annex A Annex A
The corporatisation process of MPT is in the very early stage. While the Union Government is seeking to complete this process expeditiously, no detailed timeline with the completion of the corporatisation is available at this stage. Please refer to the answer to question 257. The grant of new Licences or amendment of existing Licences is expected to occur in 2013, but no firm timeline can be made available for now. The relationship among the four Operators will be governed by the regulatory framework and the conditions in the Licences.
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Market structure
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Market structure
The current Licence Award Process has been set up to award two new Nationwide Telecommunications Licences. The licensees (who will be authorised to provide the full range of Public Telecommunications Services) are expected, among other things, to build, own and operate towers and associated facilities. In the future, PTD may issue other additional specific Licences (such as
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Annex A Annex A
264
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Annex B
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Annex B
Please advise combination/pairing of 900 MHz and 2100 MHz bands to be allocated to new licensees. Would successful licensees be allowed to nominate their preferred pair or would spectrum pairing be allocated at MCITs discretion? Please advise if 900 MHz band could be available earlier to facilitate rollout of sufficient network coverage to support the SEA Games to be held in Myanmar
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Would MPT and the new licensee comprising local consortium be subject to the same spectrum allocation and spectrum fee structure as the new licensees?
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Proposed frequency
Please advise rationale for the three year moratorium on additional spectrum allocation in the 2100 MHz and 1800 MHz band. Please also advise basis of additional spectrum allocation in the 2100 MHz and 1800 Mhz band after three years from the effective date of the licence. Please advise if allocation of additional spectrum in the 2100 MHz and 1800 MHz band three years later
No additional spectrum in the 900 MHz, 2100 MHz and the 1800 MHz bands will be released at this time. Upon demonstration of need, the MCIT/PTD will consider the possibility of releasing additional spectrum in the medium term (e.g., within the 1800 and 2100 MHz bands). Detailed spectrum packages with precise bands available for the new licensee will be provided in the ITT and draft Licence documents. It is expected that among the two successful Applicants, the one with the higher spectrum Licence fee offer will be allowed to choose between the two proposed allocations (same allocation in terms of number of MHz). MPT has been requested by the PTD to free up the required amount of spectrum in the 900 MHz band for the two new Nationwide Telecommunications Licences no later than the end of 2013 ( i.e., December 2013). At this stage, it is not expected that there will be spectrum available for the new licensees before that date. MCIT/PTD will set up a process to ensure compliance with MPTs spectrum-clearing obligations. Once the spectrum is cleared, which will take place no later than December 31, 2013, PTD will issue a notice to the licensees that the spectrum is available for use. Given the spectrum currently assigned and used in the Republic of the Union of Myanmar, it is not expected that MPT and the second Nationwide Telecommunications Operator (Consortium of local market participants) will have the same spectrum assignments. Subject to the development of the detailed regulatory framework, it is expected that the same recurring fees will apply to all Operators, including the second Operator and MPT (for the latter, subject to completion of the ongoing corporatisation process). Please refer to the answer to question 264.
In the allocation of the additional 2100 MHz and 1800 MHz band, priority will be given to the four Nationwide Telecommunications
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Annex B
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Annex B
273
Annexes
Annex B
(a) (b) The Committee is committed to ensuring transparency. It will endeavour to publish information on the identity of the Second Operator as soon as there is more clarity on this. However, this may not happen before the date on which the Licences will be granted. (a) (i) The Committee confirms that the decision has been taken to allocate 2x5 MHz in the 900 MHz band and 2x10 MHz in the 2100 MHz band. Applicants cannot apply for a different spectrum through this process. (ii) The Committee has examined various spectrum assignment scenarios and has come to the conclusion that, given the local constraints and the number of Operators, the proposed frequency assignment is the best possible option at this time. MCIT and the Committee are fully aware of the benefits of the 900 MHz band in terms of improved coverage, reduced number of sites and lower investment required. 900 MHz is part of the spectrum package proposed for the two new Operators in the Licence Award Process. In the ITT document, the Committee will invite Applicants to present their strategy for network deployment and will examine, among other factors, the proposed deployment scenario in that particular band. Please also refer to the answer to question 264. (b) (c) As stipulated in Annex B, the second Myanmar Operator is expected to be assigned spectrum in the 800/900 MHz and the 2100 MHz band. Some details have not yet been finalised and are still under discussion. For that reason, no further information on the second Myanmar Operator can be made available at this time. (d) (g) MPT will release 2x10 MHz in the 900 MHz band and will keep the other spectrum which has already been assigned to it. Spectrum that has not been assigned to MPT will be retained by PTD. (e) Spectrum assignment for the second Myanmar Operator has not been finalised at this stage. Reasonable fee can be interpreted in the sense that the same level of fees could apply, provided that the same bandwidth/spectrum assignment would apply.
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Annexes
Annex B
(a) By nature, exceptional circumstances cannot be classified and are subject to interpretation. An unanticipated and exceptional rise of the number of customers in a dense urban area combined with an exceptional growth of the individual mobile data usage leading to a strong degradation of the overall quality of service of Operators could be considered as exceptional circumstances requiring an exceptional decision on spectrum assignment. (b) The MCIT/PTD has the authority to determine spectrum allocation, spectrum assignment and whether circumstances are deemed exceptional. (c) The Union Government has decided that the market will comprise four Operators. Please also refer to the answer to question 264.
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Annex B
(a) Please note that existing mobile networks using various technologies have already been deployed and operated in Myanmar (with spectrum assigned). (b) The proposed spectrum packages provide experienced Operators enough spectrum to deploy, operate and commercialise mobile voice and data services in the Republic of the Union of Myanmar. (c) The proposed packages include 2x5 MHz in the 900 MHz band and 2x10 MHz in the 2100 MHz band. The MCIT/PTD is confident that experienced Operators can operate their network with sufficient quality for customers, as proven in other developed and developing countries. Please also refer to the answer to question 264. (d) The MCIT/PTD intends to avoid unfair competition in the telecommunications market. Please also refer to the answer to
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Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment
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Annex B
The Committee confirms that the licensees will be able to access all parts of the country. (a) (b) Please refer to the answer to question 264. (c) The MCIT will ensure, as far as possible, to assign contiguous spectrum to Operators.
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Additional spectrum assignment information will be included in the ITT document. Please refer to the answer to question 273.
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Annex B
Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment
Please refer to the answer to question 270. The Committee confirms that the Licence will be technology agnostic and that Operators are free to deploy any international mobile technology standard for use in the allocated spectrum. Existing Operators in the Republic of the Union of Myanmar are outside the scope of the present Licence Award Process. More information regarding the current spectrum assignment will be made available in the ITT document.
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(a) Please refer to the answer to question 273. (b) Please refer to the answer to question 272. (c) Please refer to the answer to question 273. (d) More details on the coverage requirements will be provided in the ITT and draft Licence. (e) Please refer to the answer to question 273.
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Annex B
(a) Please refer to the answer to question 273. (b) Please refer to the answer to question 270. (c) Please refer to the answer to question 290.
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Annex B
(a) Please refer to the answer to question 273. (b) Please refer to the answer to question 274. (c) Please refer to the answer to question 274. (d) More details on spectrum assignment will be made available in the ITT document.
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(a) Please refer to the answer to question 265. (b) Please refer to the answer to question 273.
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Annex B
Further details on current spectrum assignment will be included in the ITT document. Please also refer to the answer to question 264.
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Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment Proposed frequency assignment
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The Committee confirms that the licensees will have the exclusive legal right to use the assigned spectrum nationwide, in line with the conditions specified in the draft Licence. Please refer to the answer to question 264.
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Same refers to the two new licensees, not to the second Myanmar Operator.
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Annex C
(a) The selection criteria and their weighting will be included in the ITT. (b) Please refer to the answer to question 317. (c) The ranking of Applicants will be made public. (d) The rules, selection criteria and weighting of these criteria will be made public as part of the ITT. The ranking of Applicants will be published. An internal code of conduct has been established for the purposes of ensuring transparency of the process. (e) The Committee will be responsible for evaluating the Invitation to Tender submissions. It may base its decision on the assessment of the Technical Team established to help the Committee, but is solely responsible for the evaluation. (f) One of the selection criteria will be the proposed Licence fee. More details on the fee structure will be contained in the ITT and draft Licence. However, it is not anticipated that an auction will take place, but the proposed fee will be one of the evaluation criteria taken into account during the Licensee Selection Process. (g) The weighting of the proposed Licence fee will be included in the ITT. (h) The Committee is aware of the legal and regulatory uncertainties affecting the telecommunications market. Please also refer to the answer to question 1.
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Annex C
(a) Please refer to the answer to question 318. (b) Licensees are expected to be subject to additional fees, which would be set in accordance with the provisions of their Licence. Further information on the fee structure will be provided in the ITT
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(a) The draft Licence is expected to contain general provisions regarding access to land and use of rights of way. However, the detailed legal regime governing access to these resources will be contained in the Telecommunications Law, and other existing and future laws applicable in the Republic of the Union of Myanmar. (b) The draft Licence terms will be consistent with the draft Telecommunications Law. The MCIT expects that the Telecommunications Law will be enacted before the Licences are granted. If the Law is not enacted until after the grant of the Licence, any necessary modifications will be made to the Licence to align it with the new Telecommunications Law. The Licence terms are not subject to the approval of the Parliament. Please also refer to the answer to question 23. (a) Please refer to the answer to question 320. Licensees are encouraged to review the relevant legislation. (b) Please refer to the answer to question 320. PTD will make every effort to work with licensees to help resolve issues related to access to resources.
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(a) MCIT intends to facilitate passive infrastructure sharing between all licensees. Infrastructure sharing will be part of the regulatory framework currently being developed by the MCIT/PTD. (b) MCIT is currently developing regulations that will address interconnection and access amongst licensees.
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Licensee
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(a) The draft Licence will be made available only to all Pre-qualified Applicants. This will be done on the announcement of the Prequalified Applicants. (b) Please refer to the answer to question 39. (c) Please refer to the part (b) of this answer. (d) Pre-qualified Applicants will be allowed to submit comments on the draft Licence. (e) The draft Licence will require the licensee to comply with various regulatory obligations. The substantive regulatory obligations will be contained in the detailed regulatory framework that is being developed. MCIT/PTD is working to ensure that the Licence and the regulatory framework are fully consistent. (f) Please refer to the answer to question 29. (g) MCIT is mindful of the need to keep any regulatory fees reasonable. More information on the regulatory fees will be included in the ITT and draft Licence. (h) More information on the regulatory fees will be included in the ITT and draft Licence. (i) The details regarding the tariff regime will be included in the regulatory framework that is currently being developed. (j) The draft Licence will contain general competition provisions, which are expected to be consistent with international best practices. (k) Guidelines regarding interconnection will be provided in the ITT. (l) It is expected that Operators that control bottleneck facilities, or facilities that cannot be replicated economically, will be required to provide access on reasonable prices, terms and conditions. (m) The MCIT does not have the right to control land use and this will need to be addressed by a legal statute. Environmental considerations are expected to be detailed in the regulation that is being developed by MCIT/PTD. (n) It is expected that the two new licensees will be allocated a sufficient block of numbers and additional blocks of numbers will be made available when needed. (o) It is expected that MPT will provide access to its network, subject to capacity availability. The detailed terms and conditions will be made available, once fully developed. (p) Please refer to the answer to question 333. (q) Please refer to the answer to question 261. (r) More information will be available in the ITT document.
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Licensee Selection
The Committee does not publish the criteria for selection decision in License Selection Process as
Tariff regulation refers to the process by which a regulator requires an Operator to submit a document (tariff) that specifies the price, terms and conditions on which the Operator seeks to provide a service. The regulatory authority either accepts, rejects or modifies the tariff; and the Operator is thereafter required to provide service based on the prices, terms and conditions approved by the regulator. The Committee will publish the specific selection criteria and their weighting in the ITT. At the same time, the Committee will publish
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327
Annexes
Annex D
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Annexes
329
Annexes
Annex F
Cover letter for Pre-qualification submissions Cover letter for Pre-qualification submissions and declaration of regulatory compliance Telecommunicat ions operating Licence details
Are the Applicants allowed to make minor changes to Annexes D and I or do they have to copy paste the content without making any change?
No changes can be made to Annexes D and I, except for filling in the missing information.
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Annexes
Annex G
Please confirm that the final column (Number of Years since Ownership Control has exceeded 50.1%. is required to be completed in the cases of the primary and secondary experience only. Please confirm that both the Date of Licence Award and the Date of Commercial Launch must be specified. Are the financing activities to be documented other than as set out in Annex G? What supporting documentation is required to be filed as part of the Application? Could you confirm that the information listed within Annex C the Licence Selection process Documentation is supposed to be provided after the pre-qualifications, meaning, for the sake of clarity, that the list of information is expected for the submission of June 3, 2013? Can AR sign on Annex I instead of officer/director?
The Committee confirms that the final column is required to be completed in the case of primary and secondary experience only. Both the Date of the Licence Award and the Date of Commercial Launch must be specified for all entries.
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Annexes
Annex G
There are no financing activities to be documented other than the ones set out in Annex G. No supporting documentation for financing activities is required unless the Applicant considers it necessary by way of explanatory material, in which case such information would need to be inserted in the supplementary volumes. The information listed within Annex C must be provided with the ITT submission, not the Pre-qualification Application submission. The information required for the ITT is subject to change.
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Annexes
Annex I
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Other
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Infrastructure
Please comment on the availability of common transmission infrastructure for sharing/lease by new licensees (for example, microwave or backbone) by new mobile licensees and the corresponding lessor and leasing scheme. Are there any policies on promoting the co-
The Authorised Representative can sign only if he/she meets the requirements as specified in Annex I which clearly states that the letter must be signed by an officer or director of the Applicant. MCIT intends to facilitate passive infrastructure sharing between all licensees. Infrastructure sharing will be part of the regulatory framework currently being developed by the MCIT/PTD.
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335
Other
Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network sharing
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Other
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338
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339
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340
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341
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Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network sharing Infrastructure and network
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Other
Will MPT allow for the lease of Dark Fibre? What will the rates be? Will MPT allow for the lease of their available MW transmission capacity? How much will the rate be? Will the Union Government allow for the co-use of poles for the fibre optic cable (FOC)?
Wholesale access to network capacity will be facilitated, when appropriate. The terms and conditions have not yet been detailed and are part of the regulatory framework currently being developed by MCIT/PTD. Please refer to the answer to question 341.
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345
Other
Will the two (2) new licensees be allowed to co-locate with existing MPT towers? If the two (2) new licensees will be allowed to colocate with existing MPT towers, what will be the cost arrange on the following: (a) Retrofitting, if required (b) Rental Does the Union Government have a plan for a third party tower/infrastructure provider? Is there an existing transmission network? Are there lease lines available?
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Infrastructure and network sharing Existing infrastructure Existing infrastructure Existing infrastructure Existing infrastructure Infrastructure development
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Infrastructure development
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Infrastructure development
How many (fixed) central offices are there today and where are they located? How many mobile sites exist today and where are they located What is the formal/legal process to get all the permissions needed to erect and run a base station (a) What approvals are required? (E.g. building, microwave, permits to dig fibre, environment or civil aviation authority permits?): (i) On an existing building (rooftop) and (ii) erect a large mast and equipment compound (b) What, if any, land access rights will the successful licensee be granted? How long does it take and what is the approximate cost to get the required permits, for example: (a) In practice what is average time to get all permits needed for an application (b) Are there Service Level Agreements (SLAs) in terms of turn around? (c) Is there sufficient resources and infrastructure support to meet the massive new demand caused by the winners? (d) Will there be mechanisms put in place to get blanket approvals for licensees rather than site by site to speed up rollout? (For example on Government buildings/land or more generally). Are there any areas where travel or the movement of equipment and tools needed to build a telecommunications network prohibited e.g. military
Information on the existing transmission network will be included in the ITT. New entrants will be invited to enter into discussion with existing Operators. In the event they are unable to reach agreement, they may seek dispute resolution from the PTD. Further information will be provided in the ITT. Information on the current mobile sites will be included in the ITT. (a) Applicants are expected to conduct their own due diligence, including aspects related to local laws applicable in the Republic of the Union of Myanmar. (b) Please refer to the answer to question 320.
The Committee cannot provide specific information at this time. However, the Union Government will work to assist the new licensees to obtain approvals necessary to meet their roll-out obligations.
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355
Other
New licensees will be allowed to establish their own facilities in compliance with the terms of their licences. This information is not available at this stage. Applicants are requested to conduct their own due diligence. No specific decision has been made. However, the Union Government will work to assist the new licensees to obtain the approvals necessary to meet their roll-out obligations. Please refer to the answer to question 290.
356 357
Other Other
358
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359 360
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Please refer to the answer to question 290. Please refer to the answer to question 39.
International gateways International gateways National roaming, MVNO and spectrum sharing
Please refer to the answer to question 39. Please refer to the answer to question 39. The answers to these questions are part of the regulatory framework currently being developed by MCIT/PTD. National roaming may be allowed, although the regulatory framework is not expected to require or encourage it. MVNOs are expected to be allowed in the market at some point. Spectrum sharing is not expected to be allowed at this time. Detailed answers will be made available when the regulatory framework is completed. Please refer to the answer to question 363.
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365
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National roaming, MVNO and spectrum sharing National roaming, MVNO and spectrum sharing National roaming, MVNO and spectrum sharing
Will national roaming agreements be allowed? Will MVNO arrangements be permitted? Will spectrum sharing be permitted? Will national roaming be allowed?
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368
Other
369
Other
(a) Please refer to the answer to question 270. (b) Please refer to the answer to question 270. (c) (d) Please refer to the answer to question 368. (e) Spectrum trading/swaps is not expected to be allowed. Any change in spectrum assignments will require the approval of the Department.
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The Licence will be technology neutral. Fixed wireless technologies are allowed. The frequencies allocated through the Licence Award Process are the ones mentioned in the Pre-qualification Rules. Please refer to the answer to question 320.
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The licensee will include the right to provide Network Facilities. More details will be provided in the ITT. Please also refer to the answer to question 39.
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374 375
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Will the new licensee be allowed to own IRU capacity? Will the new licensee be allowed to set up its own
The Licence will allow for the provision of the full range of Telecommunications Services, including application services, such as Internet services. More details will be provided in the ITT and draft Licence More details will be provided in the ITT and draft Licence
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376 377
Other Other
More details will be provided in the ITT and draft Licence Number portability is expected to be assessed as part of the regulatory framework that is currently being developed by MCIT/PTD. Please refer to the answer to question 377. Local interconnection conditions are part of the regulatory framework that is currently being developed by MCIT/PTD. More details will be provided in the ITT.
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Other
The Committee is not able to provide this information. The Committee is not able to provide this information. More details will be provided in the ITT.
386 387
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More details will be provided in the ITT. More details will be provided in the ITT.
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The details of Mobile Money services do not need to be provided in the Pre-qualification application. The ITT will invite Applicants to indicate the type of e-services that they plan to provide. However, it is expected that such services will need to comply with applicable banking laws.
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390
Other
The Committee cannot provide any information on this at the moment. It is up to each Applicant to conduct its own due diligence.
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No policy regarding common mobile banking platforms has been defined at this stage.
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Other
The Committee confirms that the capitalised terms used in the Annexes to the Rules but not defined therein shall have the meaning ascribed to them in the Rules.
Wi-Fi subscribers cannot be considered to be mobile subscribers. Please refer to the answer to question 320. The Expression of Interest did not have any legally binding rules. Its purpose was to announce the start of the licensing process, provide interested parties with information on the licensing process and to provide the Committee with contact details of interested entities. The Committee cannot provide any information on this at this stage. It is up to each Applicant to conduct its own due diligence.
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Other
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Other
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Other
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Other
Please can you clarify how a customer can register a SIM? Is there any specific documentation required e.g. National Identity Document card, proof of address? Please outline the current and future approach to coordinating and resolving cross-border interference issues. The Committee invites interested entities to submit an Expression of Interest (EOI) in first stage and promise to provide information for those applicants wishing to form a consortium. However, there are gaps in the process. The Rules for Pre-qualification Applications in second stage does not spell out the role for those Applicants whose registration was accepted through Express of Interest in first stage as promised. Additionally, the rules for forming a Consortium with new members are not clearly defined either. Are there any import restrictions or duties on any categories or manufacturers of telecommunications equipment? What are the requirements on certify or certification as required in this application?
Coordinating and resolving cross-border interference issues will be based on relevant international treaty obligations and international best practices in spectrum management. The Expression of Interest stage did not result in th e acceptance of any registration. It simply provided an opportunity for the Committee to obtain information on parties that may be interested in obtaining a licence. Any interested party is free to participate in the pre-qualification phase.
Importation and duties are subject to the current trade laws and agreements applicable in the Republic of the Union of Myanmar. Please refer to the answer to question 129.
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402
Other
Other
403
Other
Other
404 405
Other Other
Other Other
The Committee confirms that all information submitted by Applicants will remain confidential, but may be shared with the committees advisors and staff, who are under a duty of confidentiality. The Committee confirms that participation in the Pre-qualification Process does not put any obligation on the Applicant regarding further participation in the Licence Award Process or any other additional obligations. Myanmar laws regarding dividends apply. More details will be provided in the ITT and draft Licence.
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Other
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Other
In relation to Customer Care, will there be a minimum number of business offices expected from the operator? As a new entrant, we would like to know explicitly the obligation of incumbent telecom operator in Myanmar to support mobile backhaul and to share BTS tower. These are essential in assessing the investment. Bidders are being asked to commit that we will participate in the License Selection prior to see the obligation of the Licence. We suggest Committee shall provide explicit obligation of Licence prior to submission of proposal of second stage. For the benefit of all EOI participants, after the prequalification companies have been announced to be invited/advanced for bidding stage, is there a time given by the selection committee for those companies who are not considered, but believe that they do qualify. Any due process to refute, debate, and clarify
No specific software and hardware restrictions pursuant to the Licence Award Process have been established except for the ownership structure for a Consortium pursuant the Pre-qualification Rules. This information is not available at this stage. Any minimum requirement, if applicable, will be stipulated in the ITT and draft Licence. The terms and conditions have not yet been finalised and will be part of the regulation framework currently being developed by MCIT/PTD.
The requirements for pre-qualification are clear and objective. Therefore, there is no need for a process to permit an Applicant to refute, debate or clarify the decisions of the Committee regarding which Applicants are pre-qualified. However, in the interest of transparency, the Committee will publish a list of all Applicants that seek to be pre-qualified, and those Applicants that are pre-qualified.
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Other
Roll-out requirements will be detailed in the ITT. These requirements are expected to be technology neutral. The Licence will contain certain licensee-specific conditions. However, these will be based on commitments that the licensee makes in its ITT submission. The Committee does not anticipate that any information submitted at this stage will be included in the Licence other than the shareholder composition.
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Other
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