High Speed Rail: Notarization and Legalization Critical to Foreign Participation
By Wirot Poonsuwan
The e-bidding submission date has been set on Monday, August 26, 2019 for those Thai and foreign contractors who are interested in making construction contracts with the Thai government to build sections of the 253-kilometer northeastern high-speed rail from Bangkok to Nakhon Ratchasima. There is also a deadline a few days before that for you to buy the e-bidding documents and register as an e-bidder on the Electronic Government Procurement or e-GP. There are four civil construction contracts at stake, each worth from 5 billion baht to 12 billion baht, ranging from 12 kilometers to 26 kilometers in the length of the tracks, including a tunnel, totaling more than 38 billion baht or USD 1.2 billion, with a construction period of around 1,080 days or less than three years.
Time-Consuming Notarization and Legalization
If you are a foreign contractor incorporated overseas, the item that is most likely to cause a delay and could prompt you to miss the August 26 submission date is the notarization and legalization in your country of your company’s administrative documents and certificates of past work experiences required by the bidding announcement. The process can be complicated and take several weeks or over a month in some countries.
Such notarization and legalization must also satisfy the regulations of the Ministry of Foreign Affairs (MOFA) in Thailand, to which the bidding announcement refers. It is the same process recognized by Thai courts for foreign documents presented to the courts.
What Documents to be Notarized
The types of documents to be notarized and legalized—legalized means certified—are all documents that are made or signed overseas, including the company secretary’s certificate outlining the company’s registered capital, list of shareholders, directors authorized to sign on behalf the company, registered address and objectives of the company.
The bidding announcement specifically states that if you are a subcontractor for any of your past experiences and wish to cite that experience as one of your previous achievements, you must obtain a certificate of past experiences from the employer in whichever country the employer is located. And that can add to the complications. You should start early.
If the submission is made in the name of a joint venture or consortium, the bidding announcement calls for a copy of the joint venture or consortium agreement to be filed as well. In the case that the agreement is signed overseas, it will be deemed a foreign document, subject to normal notarization and legalization. Be prepared.
We can call all these overseas documents administrative documents.
Ministry of Foreign Affairs Regulations
The regulations of the MOFA can be simplified to signify whatever documents issued from a foreign country and offered to a Thai government agency and state enterprise. They must be notarized first by a notary public in that country. Notarized is the process whereby a notary public, a registered legal professional in that foreign country, certifies the signature of someone who signs a document in his or her presence.
The U.S. is the best example where steps of its notarization and legalization are familiar to Thai officials at the MOFA.
The 7 Steps of Legalization
There are 7 steps involved in the notarization and legalization–both words have the same meaning as certification—of a document originated in the U.S. for use by a Thai government agency and state enterprise. Process in other countries should be similar.
In the U.S., generally, the vice president of the company in charge of legal affairs will be authorized to sign the company’s administrative documents in front of a notary public registered to work in a county.
(1) The first step is for the notary public to certify the VP’s signature.
(2) Then a clerk of the county court certifies or legalizes the notary public’s signature, as they keep a registry of all notaries public in the county.
(3) The Secretary of State of the state, such as New York, where the county court is situated, then certifies the signature of the court clerk.
(4) The U.S. Secretary of State in Washington, D.C. (the equivalent of the Minister of Foreign Affairs in Thailand) then certifies the signature of the Secretary of State of New York.
(5) Senior and high-ranking as the U.S. Secretary of State is, his signature must be certified by an authentication officer of the U.S. Department of State.
(6) Lastly, the document with all the U.S. certifications in the five steps above must be presented to the Thai Embassy in Washington, D.C. for legalization and certification. A counsellor at the Thai embassy, referring to a list of all the U.S. authentication officers and their sample signatures available in his office, will then certify the signature of the authentication officer of the U.S. Department of State, completing the notarization and legalization in the U.S.
(7) The final step is for the document to be couriered urgently to Thailand for the signature of the counsellor at the Thai embassy in Washington, D.C. to be legalized and certified by the MOFA in Bangkok, where the names and sample signatures of all Thai counsellors posted overseas are kept.
That wraps up the notarization and legalization process and the legalized documents are now ready to be submitted and accepted by the state enterprise which issues the bidding announcement.
Thai Translation Needed
Another time-consuming item is Thai translation. Allow lots of time for this. It could take weeks for translating and checking for accuracy, depending on volumes of documents including the joint venture and consortium agreement. For your understanding and protection, you should also have the draft Thai construction contract attached to bidding documents translated into English, commented and revised as you wish—no need to be scared by rumors that it can’t be changed. Hasty work has seen some serious mistakes and overlooks.
All foreign language documents must be translated into Thai, certified by a translator licensed by Thai courts.
Foreign languages other than English can be translated into English first, before converted into Thai as nearly all court-licensed translators only work from English to Thai.
The Thai translation must include the legalization certificates from steps 1-7 above.
Value of past works in foreign currencies must be exchanged into Thai baht using the rate prevailing on the date the take-over certificate was issued.
Foreign Contractor as Leader of Consortium
The bidding announcement expressly permits participation by foreign contractors, provided that they bid in the name of an incorporated or unincorporated joint venture or consortium—the foreign contractor can act as the leader of the group—no problem.
The foreign stake in the joint venture and consortium must not exceed 49%, although each member must undertake to be 100% jointly and severally liable to the project owner. Shareholders of an incorporated joint venture will carry an extra burden of having to provide a separate 100% joint and several shareholders’ guarantee in addition to its limited liability as a shareholder.
Wirot Poonsuwan is Senior Counsel and Head of Special Projects at Bangkok law firm Blumenthal Richter & Sumet and can be contacted at firstname.lastname@example.org.