Request for Application

STTA Public-Private Partnership Consultant

Terms of Reference

RFA Date of Issuance:[■] January 31, 2014

Due Date for Applications:[■]Feburary 07, 2014,17:00 Kyiv time

Deadline for Questions: [■] February 05, 2014

1.Program Background

The Ukrainian Public-Private Partnership Development Program (P3DP), implemented by FHI 360, is funded by the United States Agency for International Development (USAID) and focuses on Public Private Partnership (PPP) development in Ukraine by providing assistance to the Government of Ukraine (GOU) at national and municipal levels to create a positive PPP environment, and also supporting private sector firms interested in engaging in PPP activities.

Beginning operations in October 2010, with scheduled activities through September 2015, P3DP has five main programmatic objectives:

Objective 1, Legal Framework Enhancement. P3DP assists the GOU to create a legal environment of national level PPP laws, regulations, and resolutions that support PPP initiatives. P3DP works with GOU ministries, the PPP Interagency Work Group (PPP IWG), the Working Group on PPPs under the Parliament Committee for Industrial and Regulatory Policy and Entrepreneurship, and government bodies with formally assigned PPP functions, roles or responsibilities.

Objective 2, PPP Unit(s) Establishment. P3DP assists the GOU to create its designated regulatory and administrative bodies, defining functions, roles and responsibilities, as well as to develop its National PPP Strategy and Strategy Implementation Plan. Assistance targets capacity building and staff development within responsible GOU bodies, drawing heavily on successes in other countries through study tours, training seminars, conventions and directed technical assistance.

Objective 3, Awareness and Capacity-Development. P3DP builds capacity in high-potential municipalities that want to implement and manage PPPs, utilizing the full range of tools to increase municipal leaders’ capabilities to successfully identify, select, contract, and manage ongoing PPPs. P3DP provides assistance for public awareness programs to educate consumers on the benefits of engaging private sector players in the delivery of infrastructure and communal services.

Objective 4, Pilot Project Transactions. Objective 4 receives the greatest attention and resources and includes assistance with all phases of preparing to take pilot PPPs to the market through competitive tenders, using the experiences gained as valuable feedback to further refine the PPP environment and processes in Ukraine.

Objective 5, Mitigate Global Climate Changeand Support Use of Clean Energy through crosscutting measures imbedded in all P3DP activities. P3DP integrates climate change prevention and mitigation into all programming activities. While working with the GOU, municipalities, the private sector and other stakeholders, P3DP highlights the important consideration of the impact that the introduced policy changes and PPP projects can have on climate change.

2.Purpose of the Assignment

P3DP is working withPPP Unit within Ministry of Economic Development and Trade (MoEDT), other ministries of Ukraine, and several cities supporting potential public private partnership (PPP) projects in sectors such as urban parking management, solid waste management, city park management, health facilities, and etc.Other sectors being evaluated include kindergartens, wastewater, and municipal services. The purpose of the consultancy work is to support the role of P3DP Objectives, as stated above, by the provision of short-term technical assistance and expert advice, in particular areas such as PPP Unit institutional development, PPPs, communal services, infrastructure project development, concessions and/or investment analysis. Further, this STTA is to result in the timely production of deliverables as may be defined from time to time in both scope, output and due dates. Illustrative deliverables are provided below.

For the purpose of this TOR, “Consultant” is a legal entity or physical person who provides expert advice in particular areas (PPPs, infrastructure project development, concessions, and/or investment analysis) and has a broad knowledge of the subject matter.

3.Activities

The selected Consultant will carry out the following activities:

(a)Provide advice to P3DP, including advice and support to specific P3DP staff members in their work,in the following areas[1]:

•legal and regulatory reform;

•institutional development and capacity-building of PPP unit(s) and other public authorities;

•methodologies and procedures relating to PPPs;

•all stages of the preparation of pilot PPP projects;

•appraisal and structuring of sound and bankable PPP projects;

•financial modeling and analysis of PPP projects;

•risk identification, assessment, allocation, and mitigation in PPP projects;

•PPP contract provisions;

•international best practices in competitively tendering PPP projects;

•overseeing the work of other consultants, as requested, who are engaged for PPP process/procedure development or project preparation, including sector-specific technical assistance; and

•related areas

(b)Support the design and conduct of a market-sounding forum.
(c)Accompany and advise, as requested, one or more study tours arranged by P3DP in support of Ukrainian nationals.
(d)Provide recommendations for international best practices, based on examples and experience from other countries.
(e)Meet with key counterparts, stakeholders, private companies, investors and lenders, and international and local consultants.
(f)Present seminars on specific topics of interest to government departments, stakeholders, P3DP staff, or USAID.
(g)Contribute to the adjustment/refinement of the P3DP Work Plan, as needed.
(h)Contribute to the preparation of P3DP reports, notes, terms of reference, etc.

4.Deliverables

As and when appropriate, at the direction or request of the Chief of Party (COP), the Project Director (PD), or their designee, the Consultant will prepare and submit one or more of the following deliverables:
(a)Reports on how to identify municipal projects that are conducive to PPPs, etc
(b)Draft terms of reference for other legal or technical consultants needed:
  1. at various stages of PPP project preparation and procurement;
  2. in connection with legal/regulatory reform; or
  3. in connection with institutional development related to PPP units or PPPs in general.
(c)Research and advise on the interface between PPPs and the regulation of municipal services and associated regulatory risk.
(d)Advise on the investment climate and issues concerning domestic and international investors in relation to PPPs.
(e)Draft PPP “concept papers” or sections of concept papers for various pilot PPP projects.
(f)Report on the appraisal of various pilot PPP projects.

(g)Provide legal advice to P3DP and partner organizations on both domestic and international legal developments in the PPP field.

(h)Assist in developing a market sounding forum for the purpose of gauging the level of interest among the domestic and international investment community in investing in Ukraine. Provide follow up advice and draft a report on the results of the market sounding forum.

(i)Provide advice and input on the commercial terms of the draft PPP contracts for various pilot PPP projects.

(j)Develop and assisting in developing model documents, such as evaluations, contracts, tender documents, etc.

(k)Create internal reports on important issues arising from meetings and discussions during technical visits to Kyiv.

(l)Assist in designing workshops, study tours, etc. Create PowerPoint slides for seminars and presentations and lead workshops, etc.

(m)Other tasks as directed.

5.Qualifications and Experience

The Consultant shall have the following qualifications and experience: (i) have a proven track record of competence in infrastructure and the PPP field, (ii) observe the highest standards of professionalism and ethical conduct, (iii) possess relevant technical skills and knowledge accompanied by extensive work experience in the respective field, (iv) posses knowledge in PPP law and legal reforms, (v) offer verifiable experience in providing consultancy services related to PPPs, preferably having experience with donor-funded projects, and, (vi) excellent English speaking and writing abilities. Preference will be given to Consultants who are familiar with the PPP field in Europe. The Consultant must be able to routinely travel to and within Ukraine, as well as physically contend with all work conditions as might be reasonably inferred from this TOR.

6.Durationand Location

The work will be primarily carried out in Ukraine with intermittent trips over the duration of this contract, as coordinated with P3DP Management. The total duration of the assignment is expected to be approximately 10months, beginning on or about March 01, 2014 until February 28, 2015. The consultant is expected to make approximately monthly trips to Ukraine over the course of this Consultancy. The durations of these trips are estimated to be from 5-20 days, as needed. When in Ukraine, the Consultant will use P3DPfacilities; however, approximately 10% of the billable work/travel days may not be in Ukraine, e.g. attending study tours, preparing documents for previous or pending work in Ukraine, responding to communications, performing research, etc.

7.Level of Effort and Remuneration

The Consultancy will consist of a maximum of up to 90 working/billing days over a 12 month period. Assignment will not exceed: 90 days

The Consultant will be paid the agreed daily fee rate for every day worked, up to but not to exceed the number of days in the budget.

8.Application Process

8.1Submissions

Submissions must be prepared in English and delivered electronically by “Due Date of Application”, to the following address:

P3DP Program, Attn: Olga Petrenko

44 Khreschatyk, Str., Kyiv, Ukraine

All submissions should include:

1)A summary (max. 3 pages) of the applicant’s expertise and experience (see section 5, above).

2)Applicant’s CV (10 pages maximum).

3)Three relevant references.

4)Proposed daily fee rate (in US$) (supported by information contained in FHI360’s Biodataform that must be prepared.

FHI 360/P3DP will accept questions from interested applicants through the “Deadline for Questions” date. Questions will only be accepted in writing at the following email address: . All emailed questions must contain the subject line “FHI 360/P3DP – PPP Specialist”. FHI 360 reserves the right to not answer any or all questions. Any information that substantially changes the requirements of the solicitation shall be released through the issuance of an amendment to the solicitation, posted on FHI 360’s website for procurements.

8.2Evaluation Criteria

All applications received by the stated closing date will be evaluated and ranked according to the selection criteria below:

Criterion / Weight
Past performance and related experience / 40%
Qualifications of the expert / 40%
Reasonableness of price / 20%
Total / 100%

Following completion of the technical review, a Selection Committee of3-5 FHI 360 employeeswill evaluate the applications.

8.3Timing

Applications must be received no later than the “Due Date for Applications”. It is not anticipated that late applications will be reviewed; however, FHI 360 reserves the right to consider any late applications for review, at its sole discretion. It is anticipated that the successful applicant will be contacted on or about two weeks after the “Due Date for Applications”.

9.Disclaimers and FHI 360 Protection Clauses

a)FHI 360 may cancel solicitation and not award

b)FHI 360 may reject any or all responses received

c)Issuance of solicitation does not constitute award commitment by FHI 360

d)FHI 360 reserves the right to disqualify any offer based on offeror failure to follow solicitation instructions

e)FHI 360 will not compensate offerors for response to solicitation

f)FHI 360 reserves the right to issue award based on initial evaluation of offers without further discussion

g)FHI 360 may choose to award only part of the activities in the solicitation, or issue multiple awards based on the solicitation activities.

h)FHI 360 reserves the right to waive minor proposal deficiencies that can be corrected prior to award determination to promote competition

i)FHI 360 will be contacting offerors to confirm contact person, address and that bid was submitted for this solicitation.

CONSULTANT WORK ORDER TERMS AND CONDITIONS

I. PERSONAL SERVICES: It is agreed by both FHI 360 and Consultant that this Work Order relies upon the particular skills possessed by Consultant and that the work assigned to Consultant relies upon those specific skills possessed by Consultant. Therefore, unless otherwise approved by FHI 360, any attempt by Consultant to sell, assign or otherwise transfer to a third party any of Consultant’s obligations under this Work Order shall be deemed a termination by Consultant under Section IV of this Work Order, below.

II. RELATIONSHIP OF THE PARTIES

a)Independent Contractor. The relationship of FHI 360 and Consultant established by this Work Order is that of independent contractor, and nothing contained in this Work Order shall be construed to (a) give either party the power to direct or control the day-to-day activities of the other, or (b) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint understanding. Accordingly, Consultant shall be responsible for the payment of all taxes arising out of Consultant’s activities in accordance with the Work Order, including, by way of illustration but not limitation, federal, state, and local income tax, social security tax, unemployment insurance taxes, and any other taxes or business license fees as required. Consultant represents and warrants that no payment is due or shall become due to any third party (other than as set forth above) in connection with Consultant’s performance of services pursuant to this Work Order. Consultant shall be solely responsible for, and shall indemnify and hold FHI 360 free and harmless from any and all claims, damages or causes of actions (including FHI 360’s reasonable attorneys’ fees) arising out of the acts of Consultant.

b)Work Product Presumptive FHI 360 Property. All writings, books, articles, artwork, computer programs, databases, source and object codes, and other material of any nature whatsoever that is subject to copyright protection and reduced to tangible form in whole or in part by Consultant in the course of Consultant’s service to FHI 360 shall be considered a work made for hire, or otherwise, and therefore FHI 360's property. During this Work Order and thereafter, Consultant agrees to take all actions and execute any documents that FHI 360 may consider necessary to obtain or maintain copyrights, whether during the application for copyright or during the conduct of an interference, infringement, litigation, or other matter (all related expenses to be borne by FHI 360). Consultant shall identify all materials in which Consultant intends to exempt from this provision prior to the use or development of such materials.

c)Scope of Agency. Consultant shall have no power to sign FHI 360’s name to any Work Order or otherwise bind FHI 360. Consultant shall identify herself / himself as a consultant of FHI 360 when making contact with FHI 360’s clients or others, as may be required in the performance of service under this Work Order.

d)Rights, Privileges, or Benefits. Consultant is appointed to serve as an independent contractor, and is not an employee of FHI 360. Accordingly, Consultant expressly agrees for Consultant and Consultant’s successors, assigns and heirs that Consultant is not entitled to receive any rights, privileges, or benefits from FHI 360 except as provided herein, and Consultant hereby waives any claims to benefits provided to employees of FHI 360 expressly.

e)Conflict of Interest. Consultant shall not accept for Consultant’s own benefit any trade commission, discount or similar payment in connection with activities pursuant to this Work Order or the discharge of Consultant’s duties. Consultant shall not engage in any business or professional activities, directly or indirectly, that would conflict with the activities assigned under this Work Order or any expected or anticipated future activities. Consultant shall immediately report any potential or suspected violations of this requirement to FHI 360.

f)Nondisclosure and Indemnification. As Consultant’s work may involve access to and use of confidential information, Consultant acknowledges that FHI 360’s Proprietary Information which was developed by FHI 360 with considerable effort and expense is unique, confidential, and constitutes the exclusive property of the FHI 360. Consultant also acknowledges that an integral part of FHI 360’s business involves the receipt of confidential Client Information. Consultant further acknowledges that any unauthorized use of the Proprietary Information or the Client Information by Consultant, or any disclosure of the same to any third parties, would be wrongful and would cause irreparable injury to the FHI 360 and/or its Clients. Accordingly, Consultant covenants and agrees that, for the period of her/his access to such information and thereafter, she/he will (i) hold the Proprietary Information and the Client Information in strictest confidence, (ii) not disclose such information to any person, firm, corporation or other entity, and (iii) not use such information for any purpose not expressly authorized by FHI 360. Consultant also agrees that upon request she/he shall return all business records and other information in her/his possession or control that in any way relates to FHI 360, FHI 360’s Proprietary Information, or the Client Information. Consultant agrees to indemnify and hold FHI 360 harmless from any loss, claim or damages, including attorneys’ fees and costs, arising out of or relating to any willful or grossly negligent unauthorized disclosure or use of FHI 360’s Proprietary Information or the Client Information by Consultant.

III. FEES AND EXPENSES

a)Consultant shall be compensated for the services performed and/or materials delivered according to the agreed fee(s) provided in the Work Order. During performance of the work, Consultant shall be entitled to receive payments against the established fee on either i) a daily (“day” is defined as an 8 hour equivalent work period, with less or more than 8 hours paid on a proportionate basis) rate basis for work performed up to a maximum number of days to complete performance or ii) on a fixed fee basis for completion and delivery of specific activities and deliverables. FEE PAYMENT REQUESTS MUST BE SUBMITTED NOT LATER THAN THREE (3) MONTHS AFTER THE MONTH IN WHICH THE WORK WAS PERFORMED.

b)Consultant shall be reimbursed for authorized expenses incurred. Reimbursement of expenses shall not exceed the amount stated in the Work Order. Requests for reimbursement for all amounts over fifty dollars ($50.00) must be accompanied by a receipt. EXPENSE REQUESTS SHALL BE SUBMITTED NOT LATER THAN TWO (2) MONTHS AFTER THE MONTH IN WHICH THE EXPENSES WERE INCURRED OR NOT MORE THAN THIRTY (30) DAYS AFTER RETURN FROM TRAVEL, WHICHEVER IS LATER.

c)Consultant may submit requests for fees and/or expenses reimbursement on a semi-monthly basis. Payment of fees and expenses is based on satisfactory performance and subject to FHI 360 technical director acceptance of services and/or deliverables provided. Any outstanding travel or other advances will be deducted from fee payment requests. Requests for fees/expenses shall be submitted on the appropriate FHI 360 form.