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Executing Agency Consulting Recruitment

Submission 4: Draft Negotiated Contract

(All Selection Methods)

This is the: [indicate whether 1st, 2nd, 3rd, etc.] request for review

Loan/Grant (Country) (No.): Title

Package/Component: ______

Name of Executing Agency (EA):______

______

Report Submitted by:

Name:______

Signature:______

Designation:______

Date Submitted:______

Date of EA Contract Negotiations:______

Checklist of Attached Documents:

(For the 1st review)

Attachment 1: Draft Negotiated Contract with Appendices / Yes [ ] / No [ ]
Attachment 2: Minutes ofContract Negotiations / Yes [ ] / No [ ]
Attachment 3: Updated Consultant Recruitment Activities Monitoring (CRAM) Sheet (except for CQS and SSS [Indicate in the CRAM the reasons for any delay, and any remedial action taken.] / Yes [ ] / No [ ]
For ADB’s Project Division: Please attach a copy of previous communications with OSFMD Procurement Specialist related to items covered by this Submission Document (if any) / Yes [ ] / No [ ]
(For the succeeding review)
The information or documents requested in the latest review:
______
______
  1. Contract Negotiations successfully completed?

1.1.If Yes, EA requestsADB’s approval of the negotiated contract with the successful consulting firm.
Name of the Consultant: ______[ref. I. Form of Contract]
(NOTE: EA is requested to confirm the following checklist in para. 2.) / Yes [ ] / No [ ]
1.2.IfNo, EArequestsADB’s advice or approval for terminating the current negotiation and inviting the next-ranked firm for contract negotiations?
EA’s comment: ______: / Yes [ ] / No [ ]
If EA requests termination of the contract negotiations,for compliance to Clause 29.2 of the Instructions to the Consultants in the issued RFP, certify:
1.2.1.if EA has informed the Consultant of the pending issues and disagreements and provided a final opportunity for the Consultant to respond. / Yes [ ] / No [ ]
1.2.2.if EA has informed the Consultant of the persistent issues despite the final opportunity offered and explained the reasons to terminate the negotiations. / Yes [ ] / No [ ]
1.2.3.once EA commences negotiations with the next-ranked Consultant, EA shall not reopen the earlier negotiations. / Yes [ ] / No [ ]
  1. Appendix 1: Draft Negotiated Contract
[GCC and SCC for Time-Based and Lump-Sum Contract will be indicated byT. and L., respectively.]
2.1.Name of the Consultant:
2.1.1.Lead and each JV partner are as indicated in the technical proposal and the RFP [I. Form of Contract]/[T/L.SCC8.1]?
[Consultant’s name and country should be consistent with the RFP, in which the Consultant establishes a legal persona with evidence attached to the technical proposal.] / Yes [ ] / No [ ]
2.1.2.Consultant’s information including address and the bank account by the name of the lead firm or JV. [T.SCC45.1(e), L.SCC41.2.4] / Yes [ ] / No [ ]
2.2.Contract Period:ends before the loan closing? [T/L.SCC14.1] / Yes [ ] / No [ ]
2.3.Contract Forms and Appendixes complete?
2.3.1.I. Form of Contract, consultant signatures aresupported by Power of Attorney(s) as required in ITC28.1 and the Contract Form. / Yes [ ] / No [ ]
2.3.2.II. General Conditions to the Contract- No change permissible. / Yes [ ] / No [ ]
2.3.3.III. Special Conditions of the Contract- See para. 2.4. / Yes [ ] / No [ ]
2.3.4.Contract Appendixes – all standard appendixes included?
-See para. 3 andfollow instructions in Section 8 Contract Forms in SRFP.
- For time-based contract, Appendixes A – E / for lump-sum contract, A-D. / Yes [ ] / No [ ]
2.3.5.Time Based Contract should include:
Appendix A: Terms of Reference
Appendix B: Key Experts
Appendix C: Remuneration
Appendix D: Expenses, Provisional Sums, Contingencies, and a provision for indirect local taxes
Appendix E: Form of Advance Payment Guarantee (when the advance exceeds 10%, otherwise optional.)
2.3.6.Lump-Sum Contract should include:
Appendix A: Terms of Reference
Appendix B: Key Experts
Appendix C: Contract Price, with a provision of indirect local taxes.
Appendix D: Form of Advance Payment Guarantee (when the advance exceeds 10%, otherwise optional.)
2.4.SpecialConditions of Contract (SCC) related to ADB’s consulting services guidelines
[SCCs in Italics are required by ADB’s consulting services guidelines in C. Important Contract Provisions for Loans. If any item is No, complete para. 5 below.]
Time-Based Contract / Lump-Sum Contract / Special Conditions
SCC13.1 / SCC13.1 / Confirmation of Key Experts’ availability in accordance with the agreed schedule,which shall be submitted to the Client in writing signed by each Key Expertas a precondition to start the assignment. The confirmation should define the agreed uncontrollable circumstance, too that allows replacement with reference to GCC30.2. This will be added to Appendix B. / Yes [ ] / No [ ]
SCC21.b / SCC21.b / Conflict of Interest for which default should be “No” – the Client will follow the GCC21 Conflict of Interest, equivalent to the provision of the ADB’s consulting services guidelines without reserving a right to determine on case-by-case basis. / Yes [ ] / No [ ]
SCC23.1 / SCC23.1 / Professional Liabilityas at least one time the total value of the Contract as stated in the standard SCC provision. / Yes [ ] / No [ ]
SCC24.1 / SCC24.1 / Insurancecoverage not less than the total ceiling amount for each currency of payment, corresponding to SCC23.1. / Yes [ ] / No [ ]
SCC42.3 / SCC38.1 / Adjustment of Remuneration:
  • Time-Based Contract shall apply the index based formula in the standard Contract Form. Other form of adjustment such as 3% annually shall be discouraged as it is not always neutral.
  • Lump-Sum Contract has no adjustment. It is a fixed price contract (GCC38.1).
/ Yes [ ] / No [ ]
SCC43.1 and 43.2 / SCC38.1, 39.1, and 39.2 / Taxes: a provision for local indirect taxes consistent with Data Sheet. / Yes [ ] / No [ ]
SCC44.1 / SCC38.1 and 41.2 / Currenciesas stated in the financial proposal, subject to up to three convertible foreign currencies and a local currency. / Yes [ ] / No [ ]
SCC45.1(a) / SCC41.2.1 / Advance: around 5%. Advance exceeding 10% of the contract amount requires bank guarantees by the Form in Appendix E. / Yes [ ] / No [ ]
- / SCC41.2 / Payment schedule for Lump-Sum Contract: linked to the delivery of services/ outputs in Appendix A. / Yes [ ] / No [ ]
SCC46.1 / SCC42.1 / Interest on delayed payment is indicated by annual rate available to the Consultant for the currency of payment. / Yes [ ] / No [ ]
SCC49 / SCC45.1 / (a)Disputeprovisions including arbitrator, appointing authority, etc. as stated in the standard Contract Form. For national shortlisting, Project Division should consult with OGC for advice to the EA. / Yes [ ] / No [ ]
  1. ContractAppendixes
[Items in Italics are required by ADB’s consulting services guidelines in C. Important Contract Provisions for Loans.]
3.1.Appendix A: TOR. Specifies the Client’s inputor the counterpart staff, support and facilities (for both Time-Based and Lump-Sum contract). / Yes [ ] / No [ ]
3.2.Appendix B: Key Experts. Includes a list of Key Experts that certifies their availability by signatures of each Key Expert in accordance with the schedule agreed in the Contract [T/L.SCC13.1]. The uncontrollable circumstance which may allow replacementis suggested to be specified in the list with reference to T/L.GCC30.2 (for both Time-Based and Lump-Sum contract.) / Yes [ ] / No [ ]
3.3.Appendix C: Remunerationfor a Time-Based contractcovers remuneration of both Key- and Non-Key Experts. [Cost of support staff should be an expense item in Appendix D. Any rate specifiedfor an experts not yet appointedmay be indicated as a provisional sum in Appendix D. (T.GCC42.5)]
Appendix C: Breakdown of Contract Price for a Lump-Sum contract. [If there is any discrepancy between FIN-1 and other FIN forms, FIN-1 prevails (ITC24.2/28.7). EA may reconcile the discrepancies during contract negotiation without altering FIN-1 price.] / Yes [ ] / No [ ]
3.4.Appendix D: Other Expenses and Provisional Sums for a Time-Based contract are suggested to have a specific method of liquidation as a footnote to each reimbursableitem.
[Expense items must be sourced from ADB member countries.Provisional sum items are suggested tohave a footnote that the Consultant should submita detailed activity plan and/or purchase plan (commercial and technical specification) with cost estimates based on the quotation from at least three sources for the Client’s advance approval; and thatreimbursement should be supported by the evidence of payment such as a payment receipt (not invoice) for liquidation at cost.]
[Contingency is suggested tohave a footnote indicating that contingencies can be reallocated to other categories with prior approval of the Client, meaning the use of contingency is discretion of or prior approval by the Client.] / Yes [ ] / No [ ]
  1. Any Other Issues for ADB’s review?
IfYes, describe the issues: ______/ Yes [ ] / No [ ]
  1. ProposedModificationsto ADB’s Standard Contract:

[A change to GCC should be through SCC. For any change to GCC/SCC(not limited to the items in 2.4), or any part in the standard contract provisions and Forms, EA should report to ADB Project staff for the clearance of ADB’s legal department (OGC) and procurement department(OSFMD).]

______

  1. Financing and Budget arrangement:

6.1.ADB finances indirect local taxes as per the financing agreement.
- if No, EA must secure a budget for tax to be incurred under the contract. / Yes [ ] / No [ ]
6.2.EA retains uncommitted balance in theBudget
- EA is suggested to reservethe balance to cover price adjustments and other changes, which may exceed contract contingencies and savings from other items in the contract. / Yes [ ] / No [ ]
  1. Contract Negotiations:
  2. ______
  3. ______
  1. Attachment 1: Draft Negotiated Contract
  2. ______
  3. ______
  1. Attachment 2: Minutes of Contract Negotiations
  2. ______
  3. ______
  1. Attachment 3: CRAM (as of dd/mm/yyyy)

4.1. / Cumulative planned days (a) / Cumulative achieved days (b) / Difference
(c) = (b)-(a) / Comment on the causes of delays

Note: Numbers pertain to calendar days.Negative number indicates being ahead of the recruitment process.

4.2.______

  1. Other Issues:
  2. ______
  3. ______
  1. Anticorruption Sanction/Terrorism Lists Checking

and External ADB Auditor Clearance:

Is the consulting firm (including its Joint Venture Partner/s orYesNo

Sub-consultant/s) or its experts in ADB Anticorruption Sanction Listsand Terrorism Lists? (Please check ADB website)

Is the consulting firm an external ADB auditor?YesNo

If Yes, please obtain clearance from OAG before proceeding.

  1. Eligibility and COI:

Project Division has cleared any issuerelated to Conflict of Interest and Eligibility based on the Clause 3 and 6, Section 2 ofthe issued RFP, respectively as well as ADB’s consulting services guidelines prior to the award decision?

Yes No

The Project Unit should seek OGC’s clearance for any departure from the standard provisions before approving a contract.

Sector Director is responsible for compliance to the ADB’s guidelines as required by the Financing Agreement. Guidelines mandate the use of SRFP which includes standard contract forms in Section 8.

Prepared by:

______

Signature above Printed Name

Project Unit

______

Date

Endorsed:YesNo

Approved by:

______

Signature above Printed Name

Director, Project Unit

______

Date

Distribution:

Country Director / Director (Project Unit) / (Project Unit Specialist)

OSFMD-LCU