Mergers and Acquisitions

This chapter focuses on mergers and acquisitions (M&A), entailing going-private transactions, tender offers, proxy contests, mergers, and similar types of transactions. While the framework established by the SEC and Congress on the federal level is commendable, significant gaps exist. This chapter focuses on these gaps and recommends specified measures that should be implemented. The recommended measures are directed toward elevating the federal government’s role to serve as the principal regulator overseeing the M&A process. Among the measures that should be adopted are that: state anti-takeover statutes should be federally preempted; the legitimacy of tactics undertaken in response to takeover bids should be within the province of federal law; and a necessary condition as to whether an offensive or defensive maneuver is permissible and given effect is whether the requisite shareholder approval has been obtained. Importantly, the recommendations advanced in this chapter do not materially impede M&A transactions, recognize that shareholder voice merits a primary role in this process, and correctly place matters of national policy with the federal government rather than the applicable state of incorporation.

Features of using the electronic system ProZorro in public procurement in Ukraine: problems and ways to overcome them

Summary The purpose of the article is to study the problematic aspects of the functioning of the electronic public procurement system ProZorro in Ukraine and to develop proposals for minimizing abuses in the field of tender procedures. Research methods: The article uses general scientific research methods, in particular: synthesis analysis – in the study of scientific literature and determining the features of the electronic public procurement system ProZorro; economic and statistical analysis and comparison – with indicators of public procurement in Ukraine; generalization – when developing recommendations for minimizing abuses in the field of public procurement within the electronic system ProZorro. Scientific novelty: is to determine the main mechanisms of abuse in the field of public procurement in order to obtain illegal benefits: the fragmentation of contracts and the development of sub-threshold trade procedures and justification of ways to minimize them. In particular, in the article It is substantiated that non-competitive tender offers carry high corruption risks and lead to inflated prices for the supply of goods, services and works. It is proposed to amend the Law of Ukraine «On Public Procurement» in order to prohibit the conclusion of additional agreements after the tender; prohibition to change the conditions of the tender and tender documentation after the announcement of tenders; prohibitions to combine goods into one lot and set maximum payment terms for delivered goods for more than 30 calendar days. Conclusions: The study concludes that the electronic public procurement system ProZorro has a positive impact on the development of public procurement in Ukraine, as it increases the transparency of bidding and tender procedures, expands opportunities for participation in tenders of small and medium-sized businesses and more. However, shortcomings, first of all, in the law enforcement and judicial system of Ukraine are caused by frequent cases of corruption schemes in the public procurement system both within the ProZorro system and outside it. Elimination of corruption schemes in the public procurement system is possible subject to amendments to the Law of Ukraine «On Public Procurement». Keywords: public procurement, ProZorro, tender, tender offer, electronic bidding, competitive and non-competitive procedures.

Discrimination as an Instrument of Corruption Schemes in Public Procurement

The article characterizes the current state of organizational and legal support for the functioning of the public procurement system, taking into account the novelties of legislation; both the inter-sectoral and the protective principles of bidding, which are closely interrelated and form a single system, are analyzed; the role of the principle of «prevention of corruption actions and abuse», which has a comprehensive influence on the entire mechanism of implementation of the norm-setting innovations, is defined; a number of factors that cause corruption risks and distort the effect of basic principles in the sphere of procurement are distinguished (in particular: dishonest behavior of officials; discretion in making legally significant decisions; insufficient professionalization of bidding; imperfect system of internal control over conduct of tenders and execution of contracts); the concept of discrimination is singled out and its role as an instrument for the implementation of corruption schemes in public procurement is defined. Based on the analysis of the effective practice of appealing by the AMCU, a number of ways of using discriminatory elements by customers at the initial and final stages of bidding are systematized, namely: establishing obvious and hidden excessive requirements in the tender documentation; manipulation of technical and qualitative conditions to the subject of procurement; unjustified disparate approach to participants with the similar errors in the preparation of tender offers. Practical measures to counteract discriminatory violations in the sphere of procurement activities are generalized, which involve the use of the capabilities of the digitized systems «ProZorro» and «DoZorro» with active participation in this process by direct procurement participants, non-governmental organizations, and government authorities.

Structuring architectural competitions as a competitive procurement process

PurposeArchitectural competitions have been in existence for over 2,500 years. Past studies on this have focussed on the architectural aspects, competition formats, design evaluation by jury members and its evolution. However, no comprehensive research has examined the way that architectural competitions can be structured as a competitive procurement process for contractual outcomes. This paper addresses that gap by examining the way in which a two-stage proposal procedure (as defined by ISO 10845) was used to convert the architectural ideas competition for two new universities in South Africa (SPU and UMP) into a public procurement process with contractual outcomes.Design/methodology/approachA case study was designed to examine (1) the procurement and contractual aspects of the two-stage proposal procedure within a public procurement context; (2) the challenges encountered in implementing the procurement procedure adopted; and (3) the outcomes of the procurement process. In total, 16 documents relating to the architectural competition were examined, using document analysis, to obtain insights into the procurement approach and processes. This was followed by in-depth interviews with the competition administrators to identify the key challenges encountered in implementing the procurement procedure. A content analysis method was used to analyse the qualitative data.FindingsOnly 40% of architects who expressed interest made submissions in the first stage. Those admitted to the second stage associated themselves with architectural practices and submitted tender offers which were evaluated on the basis of their financial offer, preference and quality. Most participants experienced difficulty with the procurement procedure due to unfamiliarity with the process and tight timescales. However, necessary clarifications provided by the client's team enabled them to respond appropriately and the procurement procedure proved effective for procuring innovative design ideas from nine talented architects. They were all based in small to medium-sized firms rather than large firms.Originality/valueThis paper fills an important gap in current understanding of how architectural competitions may be alternatively structured into a competitive procurement process, using empirical evidence from two architectural competitions. Architectural competitions have traditionally been used and characterized in the research literature primarily as an ideas competition rather than a competitive procurement process. This paper, therefore, extends current knowledge on the traditional way architectural competitions are generally used in practice and demonstrates through examination of two case studies how architectural competitions may be further extended and utilized as a competitive procurement process rather than just a process for obtaining ideas.

Non-Price Criteria for the Evaluation of the Tender Offers in Public Procurement of Ukraine

Traditionally, public procurement has been associated with the measurement of achieving savings. However, recent research shows that the economic impact of public procurement is not limited only to savings, but by measuring the impact of four capitals—natural, human, social, and economic—on sustainable well-being over time. Ukraine is a country with a very low gross domestic product (GDP) per capita, which exacerbates the problem of the impact of public procurement results on the population’s welfare. Ukrainian public procurement legislation allows customers to apply non-price criteria (the share of non-price criteria cannot be more than 70%), which, together, are taken into account in the formula of the quoted price. The studies show that the effect of the use of non-price criteria depends on the relevance of the method of the evaluation of non-price criteria. The most important non-price criteria for Ukrainian customers by product categories and the methods of their evaluation are analyzed according to the Bi.prozorro.org analytics module. Therefore, it is concluded that the quoted price method, which is used in Ukrainian practice, is not relevant in comparison with the method used in the EU. A survey of the government buyers on the practice of applying non-price criteria was conducted, and the areas of their use were identified.

PELAKSANAAN PENAWARAN TENDER DALAM PASAR MODAL DAN AKIBAT HUKUMNYA DI INDONESIA

The problem of Tender Offer is sticking to the surface, among others, because there have been several cases involving the Takeover of a Public Company by another Party, thus causing losses to other Shareholders, especially the Public Shareholders. This study aims to determine the arrangement of Tender Offers in Indonesia and the impact of the Takeover on a Public Company that was taken over. The form of research in the writing of this journal is normative legal research using the statutory approach. The legal materials used are of two types, namely primary legal materials and secondary legal materials. The results of this research are: First, Mandatory Tender Offer is regulated in POJK No. 9/POJK.04/2018. There is a provision that the Controllers must refloate within two years if the share ownership exceeds 80% as a result of the Mandatory Tender Offer. Then, the Voluntary Tender Offer is regulated in POJK No. 54/POJK.04/2015 concerning Voluntary Tender Offer. In general, the background to the Voluntary Tender Offer is that the Target Company plans to be delisted, as well as changing its status to a Private Company (Go Private). Also, the Voluntary Tender Offer can be made if the Bidder wishes to increase its investment portfolio and assesses that the Target Company has the potential to continue to develop in the future. Second, Takeovers can have legal consequences on the status of the company, company controllers, and employment.

The Delisting of a Company from the Warsaw Stock Exchange as a Result of the Cancellation of the Dematerialisation of Shares – Tender Offer Price vs. IPO Price

<p>Theoretical background: The growth in the number of companies delisted from the Warsaw Stock Exchange (WSE), as a result of the cancellation of the dematerialisation of shares, has become a reason for considerations regarding the share price in tender offers addressed to shareholders who have held company securities since the Initial Public Offering (IPO).</p><p>Purpose of the article: The goal of this study was to evaluate whether the price in tender offers of the shares of companies which had finally been excluded from trading on the WSE as a result of the cancellation of the dematerialisation of shares would ensure a positive rate of return for shareholders who have held the shares since this company’s debut on the regulated market of the WSE.</p><p>Research methods: Public tender offers, announced between 2012 and 2018 on the regulated market of the WSE have been analysed. The analysis covered prices of shares of new listings on the WSE and share prices in the tender offers of 213 companies, out of which 55 companies have been excluded from trading on the regulated market of the WSE as a result of the cancellation of the dematerialisation of shares.</p><p>Main findings: The results of the research indicate that more than a half of the shareholders who have held the securities of companies in their portfolio since their debut, have suffered losses after companies have been excluded from trading on the WSE as a result of the cancellation of the dematerialisation of shares. Only 11% of the examined companies have generated more than double profit for investors compared with the issue price during their IPO. This research is one of the few studies on the Polish stock market to the best of the author’s knowledge.</p>

The Effect of Institutional Investors’ Voice on the Terms and Outcome of Freeze-out Tender Offers

We study the impact of institutional investors’ “voice” on 201 going private tender offers by controlling shareholders (“freeze-out” offers) in Israel. Israeli regulatory intervention in freeze-out tender offers is relatively mild; thus, institutional investors’ activism becomes crucial. We find that institutional voice has dual effects. On one hand, when there are pre-negotiations with institutional investors’ (their voice is heard), accepted offers’ premiums increase. On the other hand, when institutional investors express their voice, yet reject the offer, these rejections appear to hurt shareholders’ value. We also document significant institutional investor exit after rejected offers, especially after offers preceded by voice (pre-negotiations with institutional investors).

A method to encourage and assess innovations in public tenders for infrastructure and construction projects

Purpose Stimulating innovation in projects can contribute to achieving policy goals, addressing societal challenges and meeting objectives within programs and projects. Despite their potential, innovations are rarely included in tender assignments and evaluated in the award of civil engineering projects. One explanation for this is the perceived difficulty in triggering and objectively assessing innovations in the awarding of projects. The aim of this paper is to develop, implement and evaluated a method to encourage and assess innovations in the awarding of bridge construction projects to address this problem. Design/methodology/approach A design science research (DSR) approach is used to develop, implement and evaluate a method to trigger and assess innovations in tenders for bridge projects. DSR approaches are used to develop “well-tested, well-understood and well documented innovative generic designs, dealing with authentic field problems or opportunities” (van Aken et al., 2016). Findings The findings show that the application of the developed method in a bridge project led to the inclusion of a broad range of innovations in the tender offers. Despite the broad support for the defined criteria, there were some differences in the way the criteria were interpreted by the public procurement team and by the tenderers. Despite these differences, no legal claims were filed in court. Practical implications Further development and wider adoption of the method is likely to have a positive impact on the application of innovations in bridge projects. With some adjustments, the method would also be appropriate for other civil engineering and construction projects. Originality/value This paper contributes to the discussion on how the terms innovation and innovativeness can be operationalized and used in the literature and practice. The developed method provides definitions for assessing the degree as well as the level of innovations in tenders for bridge projects. Further, it provides a way to rank innovations and determine the additional value of the offered innovations in terms of a notional reduction in tender price. Finally, it provides insights into how to encourage innovations through public procurement in civil engineering projects.