general rules and guidelines for procurement …

GENERAL RULES AND GUIDELINESFOR PROCUREMENT

DANISH TIED MIXED CREDITS TODEVELOPING COUNTRIES

AUGUST 2007

General Rules and Guidelines for Procurement under Danish Tied Mixed Credits to Developing Countries

August 2007 Ministry of Foreign Affairs of Denmark

Danida

Secretariat for Mixed Credits 2, Asiatisk Plads DK-1448 Copenhagen K

Phone: +45 33 92 00 00 Fax: +45 33 92 00 20

E-mail: [email protected] www.mixed-credits.dk

Table of Contents General Rules and Guidelines for Procurement under Danish Tied Mixed Credits to Developing Countries, August 2007

1 - 14

Annex A: General Conditions for the Approval of Commercial Contracts financed under Danish Mixed Credits, August 2007

A1 - A8

Annex B: Example, Pre-Qualification Documents and Criteria, Danish Tied Mixed Credits, August 2007

B1 - B27

Annex C: Example, Tender Documents and Evaluation Criteria, Danish Tied Mixed Credits, August 2007

C1 - C29

Annex D: Terms and Explanations

D1 - D5

Annex E: Form of Buyer/End User’s Declaration, Danish Tied Mixed Credits, August 2007

E1 - E3

Annex F: Form of Exporter’s Declaration, Danish Tied Mixed Credits, August 2007

F1 - F4

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General Rules and Guidelines for Procurement under

Danish Tied Mixed Credits to Developing Countries, August 2007

Introduction

1 Purpose of the rules and guidelines The purpose of the rules is to inform the Buyer (in the following called the Employer) and

others involved in the implementation of a project financed, in whole or in part under Danish Tied Mixed Credits, of the detailed rules for procurement.

Reference to the Employer includes also any agent or end-user.

References to Works in these Guidelines shall include surveys, design, works, supply of goods including materials and plant, and related transportation, insurance, installation, commissioning, training, spare parts, initial maintenance etc. as appropriate.

Section 1 and 2 are mandatory and shall be complied with for all such Works financed under Danish Tied Mixed Credits. Section 3 comprises the Guidelines, which, if followed by the Employer, will ensure procurement in accordance with Danida’s requirements and internationally recognised good practise.

2 Rules for Procurement financed under Danish Tied Mixed Credits 2.1 Works financed under Danish Tied Mixed Credits shall be tendered and contracted as one

contract with a Danish contractor/supplier or joint venture (in the following called Contractor). Any local or third country part of the Works to be financed under Danish Tied Mixed Credits shall be included in this tendering and in the contract between the Employer and the Contractor, with the Danish Contractor being responsible towards the Employer.

Nominated sub-contracting shall not be used in connection with the tendering or award of contracts financed under Danish Mixed Credits.

2.2 Works and supply of goods and provision of services financed under Danish Mixed Credits must contain a degree of know-how and technology transfer to the Employer. Furthermore, goods and works must be of high quality with long lifetime.

2.3 Participation in pre-qualification is open to eligible Danish firms or joint ventures, i.e.:

(a) A Danish firm is main contractor or in the event of a joint venture, leader.

(b) The Danish main contractor or leader shall have a substantial turnover in Denmark and proof hereof shall be provided in the form of annual accounts for the past three years. Verification may be required by Danida.

(c) The Danish main Contractor or leader (together with its sub-contractors) is responsible for undertaking of minimum 60 % of the Contract Value. Proof hereof shall be provided in the form of pre-contract agreements attached to the tender and later in the form of a joint venture agreement or subcontracts attached to the contract. Verification may be required by Danida.

For Danish Tied Mixed Credits to China it is a requirement that the Danish contents of works, supply of goods and provision of services is at least 25% of the quoted contract amount, calculated on the basis of the guaranteed risk sum declared by the Contractor. For

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details please refer to the “Eksport Kredit Fonden, EKF” (www.ekf.dk).

For Danish Tied Mixed Credits to other Developing Countries there is no such requirement to the Danish contents of the works, supply of goods and provision of services.

2.4 Government-owned enterprises in the Employer’s country may participate only if they can establish that they (i) are legally and financially autonomous, and (ii) operate under commercial law. No dependent agency of the Employer under a Danish Mixed Credit-financed project shall be permitted to tender or submit a proposal for the providing goods or works under the project.

2.5 Project preparations (feasibility study, environmental impact assessment, preparation of specifications, and authority approvals, etc.) and procurement are the responsibilities of the Employer.

The Employer is responsible for full compliance with national tender laws and regulations.

Procurement includes tender announcement, pre-qualification, issue of tender documents, arranging site-visit or pre-tender meeting, receipt and opening of tenders, evaluation, post-qualification, contract negotiations and finalisation and award of contract.

2.6 The contractor shall be chosen through competitive tendering among Danish contractors.

Pre-qualification shall be used to select and invite prospective tenderers among those eligible and qualified.

The pre-qualification should result in a sufficient number of eligible and qualified applicants, to ensure that at least two tenders can be obtained. If the number of tenders is less than two, re-tendering shall take place unless otherwise approved by Danida.

The Employer shall arrange for announcement of the pre-qualification by Danida as appropriate and in his own country in accordance with the rules of his country.

Respondents shall be provided with a set of pre-qualification documents including information of the Scope of Works, the Employer, the financing (Danish Tied Mixed Credits), the conditions for participation, the requirements to eligibility, the criteria for pre-qualification, the stipulated time schedule for the tendering and implementation of the contract.

Before advertising the announcement and issue of the pre-qualification documents, the Employer must submit the documents for review by Danida and await a “no objection” in writing.

The application for pre-qualification should include a letter of application, information sheets in a prescribed format (to be filled-in by the applicant) and documentation as required.

The pre-qualification shall be based only on the information and documentation given in the application.

2.7 For smaller contracts or in circumstances where pre-qualification cannot be applied, the procedure for procurement shall need prior approval by Danida.

If post-qualification is applied, the following rules shall be observed:

- Invitations to tender shall be issued to all respondents.

- All tenderers shall submit, with their tender, information of their qualifications with documentation as required. The tenderers shall provide the information by filling-in information sheets in prescribed formats with documentation attached all as required. The eligibility and qualifications of the tenderer with the best-evaluated tender shall then be verified by the Employer.

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- The Employer shall arrange for announcement of the tender by Danida as appropriate and in his own country in accordance with the rules of his country.

- The announcement shall include brief information of the Scope of Works, the Employer, the financing (Danish Tied Mixed Credits), the requirements to eligibility, the stipulated time schedule for the tendering and implementation of the contract.

- Before advertising the announcement, the Employer must submit the announcement review by Danida and await a “no objection” in writing.

The post-qualification shall be based only on the information and documentation submitted with the tender.

2.8 Invitations to tender shall be issued in due time for the tenderers to prepare their tenders. The period between availability of the tender documents and the deadline for tender submission shall be 8-12 weeks or more.

Before issuing the tender documents to potential tenderers the Employer must submit the tender documents for review by Danida and await a “no objection” in writing.

2.9 In receiving and opening of tenders, seeking clarifications, and examination and evaluation of tenders, the Employer shall ensure that all tenders are treated fairly and objectively, that the process is confidential but transparent and that all transactions are recorded in a detailed evaluation report.

2.10 The Employer shall invite only the tenderer with the best-evaluated tender (the preferred tenderer) for a meeting to finalise and sign the contract.

2.11 Tenderers or sub-contractors having participated in the project identification and project preparations as e.g. a feasibility study shall not be disqualified from tendering, but shall not be given any preference in the tendering or evaluation of the tenders, even if the Employer and a potential tenderer may have developed a cooperation or mutual understanding of the project before its tender announcement.

2.12 The Tenderer shall bear all costs associated with the preparation, site visits and submission of his tender, and the Employer will in no case be responsible or liable for those costs.

2.13 Pre-qualification documents, tender documents, addenda to the tender documents issued by the Employer, tenders, evaluation report as well as the final contract shall be prepared in the English language, which shall also be the ruling language.

The tender documents shall furnish all information necessary for a prospective tenderer to prepare a tender for the Works. The basis for tender evaluation and selection of the best-evaluated tender shall be clearly outlined in the tender documents.

Tender documents and the contract documents shall use the structure, formats and wording as presented in the

- FIDIC - Conditions of Contract for Plant and Design-Build for Electrical and Mechanical Plant, and for Building and Engineering Works Designed by the Contractor (1999) or

- FIDIC - Conditions of Contract for Construction for Building and Engineering Works Designed by the Employer (1999)

as appropriate, and the

- FIDIC - Contracts Guide (2000), Examples of Letter of Invitation and Instructions to Tenderers.

Use of other standards, whether international or national, is usually not accepted by Danida.

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For the detailed requirements to the contract please refer to Danida’s “General Conditions for the Approval of Commercial Contracts financed under Danish Mixed Credits”.

The other tender documents as

- Letter of Invitation, Instructions to Tenderers including Evaluation Criteria (and if pre-qualification has not been applied, Criteria for post-qualification and Qualification Information Forms)

- Form of Letter of Tender, Appendix to Tender, and the Schedules to be completed - Forms of Guarantees - Employer’s Requirements or Specifications

shall closely follow the requirements of Danish Mixed Credits and the templates in the respective FIDIC Conditions of Contract and the FIDIC Contracts Guide (2000).

2.14 The Employer shall forward the complete and detailed tender evaluation report to Danida for “no objection”. The evaluation report shall as a minimum include

- Members of the Evaluation Committee - Details of the pre-qualification - The basis for the tender documents - Clarifications requested and issued, addenda issued - Details of the tender opening - Details of the examination of tenders for responsiveness - Any clarifications requested from tenderers - Details of the technical evaluation and any clarifications provided by the tenderers - Details of the price evaluation and any adjustments, any adjustments made to the

prices - Ranking of the tenders - Issues to be discussed with the highest ranking tenderer

with all original documents annexed. On request the Employer shall submit to Danida a copy of the tender documents and the tenders.

The tender evaluation report and the contract documents shall demonstrate that competitive procurement has taken place, that the process has been carried out according to internationally recognised and good procurement practise as well as national legislation, and that the selected tender is competitive with regard to technology, price, and quality.

Upon receipt of a “no objection” in writing, the contract agreement with the preferred tenderer (Ref. 2.10) may be finalised. The complete contract agreement including minutes of all discussions and amendments made shall be forwarded to Danida for approval. The effectiveness of the contract must be conditioned by such approval.

Danida will engage an independent consultant to provide technical assistance in connection with the tendering and/or price verification.

2.15 After the tender opening, information relating to the tenders, the processes of examination, clarification, evaluation and comparison of tenders and recommendation for the award of a contract shall not be disclosed to the tenderers, or any other person not officially concerned with such processes.

Any effort by a tenderer to disclose or seek such information or to influence the Employer or the Engineer or the Independent Consultant assisting in these processes may result in the rejection of the tenderer’s tender.

Any effort by a tenderer to influence Danida during these processes may result in Danida withholding its “no objection” to this tenderer’s tender.

2.16 For “small projects”, defined as projects with a total estimated contract price of less than

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Special Drawing Rights (SDR) 2 millions (approx. EUR 2.3 millions), negotiated contracts (sole source procurement) may on a case-by-case basis be accepted. However, prior acceptance by Danida must be obtained, and it should be documented that prices are competitive. The Contractor must “open books” and thus show all internal price calculations. Also, Danida may require further price verification.

2.17 Danida upholds zero tolerance towards corrupt, facilitating, fraudulent, collusive and coercive practises and requires the same from Employers, as well as Tenderers, Contractors, Sub-Contractors, and Consultants under contracts financed by Danish Mixed Credits. In pursuit of this policy

Danida will

- reject a proposal for award if it determines that the preferred Tenderer, directly or through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for the Contract in question,

- cancel the support for the project if it determines at any time that representatives of the Employer engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the procurement or the execution of that contract, without the Employer having taken timely and appropriate action satisfactory to the Danida Credit to remedy the situation,

- sanction a firm or individual, including declaring them ineligible, either indefinitely or for a stated period of time, to be awarded contracts supported by Danish Mixed Credits if it at any time determines that they have, directly or through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for or in executing, a contract supported by Danish Mixed Credits.

The Employer shall if it determines applicants or tenderers engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the tender process or the execution of the contract, exclude such applicants or tenderers from participating, or cancel the Contract as appropriate.

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3 Guidelines for procurement under Danish Tied Mixed Credits 3.1 In addition to the requirements set out by Danida and EKF, procurement must always fulfil

national procurement / tendering laws of the Employer’s home country and country of project implementation (if not the same).

3.2 Pre-qualification shall be announced in Denmark and in the Employer’s country in sufficient time for potential applicants to obtain the pre-qualification documents and submit their application (usually minimum four weeks).

A draft of the announcement shall be forwarded to Danida with a request to advertise the announcement on Danida’s home page and in Danish newspaper(s) as appropriate. An announcement with the same contents shall by advertised by the Employer in accordance with the rules in his country.

The announcement shall include

- Reference to the application by the Borrower/Employer for support by Danish Tied Mixed Credits

- Name of the project and types of the Works including supply of goods and provision of services

- Information on eligibility, i.e. participation is restricted to Danish firms or in the event of joint ventures, a Danish firm as leader

- Name, address, phone and e-mail address of the Employer and contact person - Information on where pre-qualification documents may be obtained - Information on the place and deadline for submission of applications - Expected date of invitation to tender and price of tender documents (if any) - Information on the deadline for submission of tenders

The pre-qualification documents issued to respondents shall include

- Letter of Invitation to Pre-qualify, including reference to the application for support by Danish Tied Mixed Credits, name of the project and type of Works, name, phone and e-mail address of the Employer and contact person, place and date for submission of applications, expected dates of invitation to tender and submission of tenders

- Instructions to Applicants specifying the conditions for participation, consequences of corrupt, facilitating, fraudulent, collusive or coercive practise, requirements to eligibility, qualification criteria, particular conditions for joint ventures, applicants responsible to seek clarifications, submission of applications, and notification by the Employer

- Brief description of the project, the scope of the Works, indicative dates for the invitation to tender, signing of contract and completion of the Works

- Forms of Letter of Application and Forms of Qualification Information (to be filled in) as appropriate

The documents issued should clearly specify documentation to be attached as well as the minimum requirements for qualification.

An example of pre-qualification documents to be issued to the applicants is given in Annex B.

If in exceptional cases, post-qualification is applied, the post-qualification documents shall be included in the tender documents, by including the requirements to eligibility, consequences of corrupt, facilitating, fraudulent, collusive or coercive practises, qualification criteria, and the particular rules for joint ventures in the Instructions to Tenderers, and attaching the forms of qualification information as appropriate.

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The forms of qualification information proposed for post-qualification are the same as proposed for pre-qualification (at the end of Annex B).

3.3 Pre-qualification or post-qualification should be based entirely upon the capability and resources of the applicants/tenderers to perform the particular contract satisfactorily, taking into account e.g. their

- experience as main contractor, leader of joint venture or sub-contractor for the past three years,

- turnover from a number of contracts of comparable size and complexity for the past five years,

- experience from contracts of comparable size and complexity, globally, - experience from at least one contract of comparable size and complexity in the

geographical region, - financial capability including access to adequate liquid assets, lines of credit, or other

means to cover the outlays on the Contract, - operations are long-term profitable and financial situations are sound - personnel and management capabilities are adequate for the execution of the

Contract, - equipment capabilities are adequate for the Contract (if relevant), - involvement in litigation or arbitration resulting from completed or ongoing

contracts is limited to a few.

An example of the criteria is shown in Annex B. Alternatively the FIDIC “Standard pre-qualification form for contractors, 2nd edition 1994” may be used with amendments as appropriate (the document is copyrighted but may be obtained from the FIDIC Bookshop).

Pre-qualified applicants are those meeting all the minimum requirements.

In connection with pre-qualification, the Employer should notify non-successful applicants whether they have been pre-qualified or not.

3.4 Tender documents, general

The tender documents shall be in the English language unless otherwise agreed with Danida.

The tender documents should furnish all information necessary for a prospective tenderer to prepare a tender for the Works. The documents should usually include those listed below.

Tender documents and contract documents shall use the structure, formats and wording presented in the





Use of other standards, whether international or national is usually not accepted by Danida. If in exceptional cases use of another standard is accepted, the detailed conditions of the “General Conditions” shall not be changed in any way, but all adjustments or changes to the General Conditions shall be specified in the “Particular Conditions” (“Special Conditions”).

Combination of documents from various sources (using e.g. a national standard for the Letter of Invitation, Instructions to Tenderers, Form of Tender and Appendix to Tender

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while using FIDIC Conditions of Contract) shall be avoided.

The structure, contents, and the expressions outlined below correspond to that used in the FIDIC - Conditions of Contract and the FIDIC - Contracts Guide.

3.5 Outline of structure of tender documents

(a) Letter of Invitation to Tender, with details of

- whether the tender is restricted to those eligible and pre-qualified or open but restricted to those eligible,

- reference to the application for support by Danish Tied Mixed Credits, name of the project and type of Works,

- name and address of the Employer and contact person, - place and price of obtaining the tender documents, - period of validity of tenders, - place and time for a joint site visit (if any), - whether alternative tenders are permitted, and - place and date for submission of tenders.

(b) Instructions to Tenderers, including

- contents of the tender documents, - conditions for eligibility and criteria for post-qualification (if applied) and

rules for joint ventures, - tenders to be responsive and tenderers to examine the tender documents,

clarifications and amendments, - conditions for field visits, - preparation of the tender, language of the tender, contents of the tender,

tender security (if any), - submission and marking of tenders, - procedure for tender opening and participation of tenderers’ representatives, - procedure for tender evaluation, including determination of responsiveness,

correction of errors, - procedure for award,

and attached

- method and criteria and weighting to be used in the technical and price evaluation,

- forms of qualification information (if applying post-qualification), and - Form of Tender Security (if any).

(c) Forms of Tender, including

- Form of Tender with a reference to the support by Danish Tied Mixed Credits, a list of the documents of the Contract and priority, and a list of the conditions for effectiveness (specific for projects funded by Danish Mixed Credits),

- Forms of Appendix to Tender, including contractual details specific for the Contract as

- name and address of Employer, - name and address of the Contractor, - name and address of the Engineer or Employer’s Representative, - time for completion, - defects notification period, - agreed systems of electronic transmission, - governing law (usually the law of the country of the Employer) and ruling

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language (usually English) and language for communication, - time for access to the site, - delay damages per day and maximum, - provisional sums, - adjustments for changes in costs, - payment conditions and currencies of payment etc., - requirements to insurances, - name(s) of the members proposed for the Dispute Adjudication Board, - division of the works in sections.

(d) Forms of Schedules of Tender to be filled in by the tenderer and including

- lists and schedules of payment and/or prices (in measurable contracts, bills of quantities, data, lists and schedules of rates and/or prices,

- schedule of technical documentation, - key personnel proposed for the implementation of the Contract, - proposed work plan and programme, - particulars of proposed subcontractors, - proposed quality assurance system, - schedule spare parts and after sales service, - schedule of training.

(e) Form of Performance Security and Form of Advance Payment Security.

(f) Form of Contract Agreement

(g) Conditions of Contract comprising

- FIDIC - Conditions of Contract, General Conditions and Form of Agreement without any changes, and

- Particular Conditions including the specific requirements set out in Danida’s “General Conditions for the Approval of Commercial Contracts financed under Danish Mixed Credits” as well as those set out in national legislation.

(h) Employers’ Requirements and Drawings (if the Contractor is responsible for the design) and Specifications and Drawings (if the Employer is responsible for the design).

Templates for the documents (a) and (b) may be found in the FIDIC Contract Guide (2000), while templates for the documents (c), (f) and (g) may be found in the respective FIDIC - Conditions of Contract.

An example of tender documents for a contract using the FIDIC Conditions of Contract for Plant and Design-Build and conforming with Danida’s requirements is shown in Annex C.

3.6 Employer’s Requirements (Specifications)

The specifications and drawings shall clearly and precisely describe the scope of works and the location of the works, the goods to be supplied, and the services to be provided, the place of delivery or installation, the schedule for delivery or completion, minimum performance requirements, and the warranty and maintenance requirements.

In addition, the documents shall define any tests, standards, or methods that will be employed to judge the conformity of equipment as delivered, or works as performed, with the specifications.

Drawings shall be consistent with the text of the requirements (specifications), and an order of precedence between the two shall be specified.

Standards and technical specifications quoted in tender documents shall promote the

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broadest possible competition, while assuring the critical performance or other requirements for the goods and/or works under procurement. As far as possible, the Employer shall specify internationally accepted standards, norms and international certified approvals with which the plant and materials or workmanship shall comply. Where such international standards are unavailable or are inappropriate, national standards may be specified. In all cases, the tender documents shall state that equipment, material or workmanship meeting other standards, which promise at least substantial equivalence, will also be accepted.

The requirements (specifications) of a component or system shall be based on specific characteristics, functional and performance requirements. In general references to brand names, catalogue numbers or similar shall be avoided. If it is necessary to quote a brand name, type or catalogue number of a specific manufacturer to clarify an otherwise incomplete specification, the words “or equivalent” shall be added after such reference. The requirements (specifications) shall permit the acceptance of offers for goods, which have similar characteristics, and which provide performance at least substantially equivalent to those specified in order to ensure sufficient competitiveness.

3.7 Evaluation criteria

The tender documents shall specify any technical factors, which in addition to price, will be taken into account in evaluating tenders, and how these will be capitalised or, if this is not possible, quantified and weighted and how the final evaluation will be arrived at. The technical component may comprise factors as e.g.

- suitability of work programme, - conformity with specifications and drawings and suitability of technology proposed, - conformity with requirements in tender documents, - design aspects under the responsibility of the contractor and plant layout, - methods in general and temporary works, - quality and lifetime of plant, - efficiency of plant, - environmental benefits, - available after sales service and spare parts, - training programme included, - relevant qualifications of proposed key staff and back-up staff,

quality assurance, - proposed alternatives (if allowed).

When evaluating the price, the total project economy shall be taken into account. For instance, a tender with higher capital cost may be economically more favourable if the operating costs over a given time period is lower e.g. lower energy consumption or lower environmental impact. Thus, the price component may include the price of the works, supply of goods and provision of services, plus e.g.

- price of a package of selected spare parts, - operation & Maintenance costs (capitalised), - price increases applying to the period of implementation (capitalised), - discounted cash-flows and net present value.

Besides the technical and economical components, an evaluation should be conducted of general contractual and commercial aspects e.g.

- conformity with Instructions to Tenders, - completeness of tender, - insurance, - defect liability period,

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- time for completion, - payment conditions.

See Annex C, Example of Evaluation Criteria.

If tenders based on alternative designs, materials, completion schedules, payment terms, etc. are permitted, conditions for their acceptability and the method of their evaluation shall be expressly stated.

3.8 All prospective tenderers shall be provided the same information, and shall be assured of equal opportunities to obtain additional information.

The Employer shall provide reasonable access to the project site for visits by prospective tenderers. For works or complex supply and installation contracts, particularly for those requiring refurbishing existing works or equipment, a pre-tender meeting may be arranged whereby potential tenderers may request and be provided with clarifications. Minutes of the meeting shall be provided to all prospective tenderers.

Tenderers should be advised of the probable duration of the site-visit, the estimated date and hour and maximum allowable number of participants from each tenderer. Tenderers shall be instructed to make own travelling arrangements and bear all costs connected with the site-visit.

Any additional information, clarification, correction of errors or modifications of tender documents shall be sent to each recipient of the original tender documents in sufficient time before the deadline for receipt of tenders to enable tenderers to take appropriate actions. Each addendum should carry a serial number for reference purposes, and receipt shall be requested and given. If necessary, the deadline for submission shall be extended.

3.9 Receipt and opening of tenders

The time for the tender opening shall be the deadline for receipt of tenders or promptly thereafter, and shall be announced, together with the place for tender opening, in the tender documents or as amended later.

The Employer shall open all tenders at the stipulated time and place. The official opening may be (i) In Public: date, time and place of opening should be advertised in the press and notified to tenderers or (ii) Restricted: in presence of those tenderers wishing to attend, all having been advised of the date, time and place of the opening.

Unless required otherwise by Danida or specifically in the local tendering laws, the tender opening should be “Restricted” and the opening should be held on the same day as tenders have to be submitted.

Danida or its representative shall always be given the possibility of attending at tender opening. Persons specifically invited by the Employer and required representatives from the government or other institutions may also attend at the tender opening.

The name of the tenderer and total tender price offered in each tender including modifications, and of any alternative tenders if they have been requested or permitted, shall be read aloud and recorded when opened and a copy of this record shall be included in the evaluation report. Tenders received after the time stipulated, as well as those withdrawn, shall not be considered and shall be returned unopened to the tenderer.

3.10 Clarifications or alterations of tenders

Tenderers shall not be requested or permitted to alter their tenders after the deadline for receipt of tenders. The Employer may request tenderers individually for the clarifications required to evaluate their tenders but shall not ask or permit tenders to change the substance or price of their tenders after the tender opening. Requests for clarification and the

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tenderers’ responses shall be made in writing and be included in the evaluation report.

3.11 Examination of tenders

For each tender the Employer shall ascertain whether

- the tenderer is eligible, i.e. is the same entity as invited, - the tender has been properly signed, - the tender is accompanied by the required securities, - the tender is substantially responsive to the tender documents, - minimum qualification requirements are complied with.

If a tender is not substantially responsive, that is, it contains material deviations from or reservations to the terms, conditions and specifications in the tender documents, it shall not be considered further. A material deviation or reservation is one, which affects in any substantial way the scope of the Works, or which limits in any substantial way inconsistent with the Tender Documents the Employer’s rights or the tenderer’s obligations under the contract, and the rectification of which deviation or reservation would affect unfairly the competitive position of other tenderers presenting substantially responsive tenders.

A tenderer shall not be permitted to correct or withdraw material deviations or reservations once tenders have been opened.

3.12 Evaluation and comparison of tenders

The purpose of tender evaluation is to determine the best tender for the Employer, taking cost as well as technical merits into consideration.

In the evaluation process the tender price read out at the tender opening shall be adjusted for any deviations, and the monetary value of the deviation shall be determined by the evaluator and added or subtracted from the tender price to arrive at the anticipated real cost of the tender for comparison with other tenders received. The calculations shall be made using prices contained in the tender. If not possible, commercial rates and prices shall be used. Any arithmetical errors shall be corrected in accordance with the provisions in the Instructions to Tenders, or else the monetary value of such errors shall be determined and corrected as the deviations. Also, for the purpose of evaluation, adjustments shall be made for any quantifiable non-material deviations or reservations.

If the nature of deviations and arithmetical errors are such that it is not possible to determine their monetary value, it is recommended that the tender should be judged to be substantially unresponsive and returned to the tenderer.

The evaluation and comparison of tenders shall be done objectively and in detail based on the tender’s prices and according to the evaluation criteria weighting specified in the tender documents. In order to achieve objectivity as much as possible it is advisable to compare and evaluate technical factors and capitalise or quantify and weight these before calculating the sum of the adjusted price components and comparing the tenders.

3.13 Post-qualification

If pre-qualification has not been carried out, it shall after selection of the tenderer with the best evaluated tender be verified that this tenderer meets the criteria for qualification as communicated to the tenderers in the tender documents (see 3.3 above).

3.14 Requirements to Danish contents

Participation in pre-qualification (and tendering) for contracts financed under Danish Tied Mixed Credits is open only to (qualified) Danish firms or to joint ventures with a Danish leader.

For Danish Tied Mixed Credits to China it is an additional requirement

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- that the Danish contents of the works, supply of goods and provision of services is at least 25% of the quoted contract amount, calculated on the basis of the guaranteed risk sum, according to the definition by the “Eksport Kredit Fonden”,

- that after selection of the tenderer with the best-evaluated tender, the Employer shall ascertain that this tender complies with the requirement that the Danish content is at least 25% of the of the works, supply of goods and provision of services (including services such as project management, transportation, insurance, design, installation, management commissioning, training, spare parts as well as the tenderers profit),

- that the tenderers in their tender include a statement to this effect in the format as attached to Annex C. Compliance with the requirement to the Danish content may at any time be subject to verification by Danida. If this tender does not comply with the requirement, this tender shall be rejected and the second best evaluated tender shall be considered.

For Danish Tied Mixed Credits to other Developing Countries there is no such requirement to the Danish contents.

3.15 Evaluation report

The Employer shall prepare a detailed report on the evaluation and comparison of tenders setting forth the specific reasons on which the recommendation is based for the award of the contract.

The evaluation report should include at least the following details:

(a) formation of the tender committee or similar,

(b) description of the short-listing or pre-qualification giving dates of notification, responses, minimum criteria for pre-qualification and the summary of results giving reasons for not qualifying applicants,

(c) date of invitation to tender, list of tenderers invited, list of contents of the tender documents,

(d) description of activities in the tender period including withdrawals, queries and clarifications, site-visits, amendments issued,

(e) minutes of the tender opening,

(f) clarifications requested and given to the tenders,

(g) summary of the examination of the tenders indicating for each tender, whether the tenderer is eligible, the tender is properly signed, is accompanied by the required securities, and is substantially responsive, and reasons for deciding that a tender is non-responsive,

(h) summary of the evaluation and comparison of the tenders, for each tender specifying

- corrections of arithmetical errors, if any, - adjustments made for quantifiable non-material deviations or reservations, if

any, - detailed rating for the technical and cost price components for each tender

and - comparison and determination of the best evaluated tender,

(i) verification of the qualifications of the tenderer with the best evaluated tender,

(j) if relevant, local authority approval of best evaluated tender, and

(k) recommendations.

Documentation of correspondence, minutes, etc. shall be included as annexes.

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On request the Employer shall submit to Danida a copy of the tender documents and tenders.

3.16 Cancelling the tender

The Employer should reserve his right to reject all tenders, cancel the tender, and if applicable to re-tender.

Rejection of all tenders and cancelling the tender should, however, only take place where none of the tenders are responsive to the tender documents or the number of tenders is less than 2. If the best evaluated tender exceeds the budget the tender may be cancelled, or the Employer may negotiate with the best-evaluated tender. In conducting such negotiations, the guiding principle must be to ensure that the confidentiality and fairness of tendering is preserved. In the event of a satisfactory contract not being negotiated, all tenders may be rejected. If none of the tenders are responsive, the Employer may decide to advertise the announcement of a new pre-qualification and re-tender the Contract, possibly with changed scope of works. Re-tendering should never be used as means just to reduce the tender prices from the same tenderers. Re-tendering will normally require significant modifications of the tender documents. Re-submitting of tenders without complete re-tendering is not allowed.

3.17 Finalising the contract

The Employer shall together with the selected tenderer finalise the contract, i.e. agree on technical details not specified in the tender including alternative solutions or proposals as e.g. final list of spare parts, final time schedule, any changes in key personnel, detailed training arrangements, etc. The outcome of such agreements shall be recorded in a Memorandum of Understanding or in the a Letter of Acceptance, which factually states all decisions and agreements reached, and shall be signed by both parties and included in the documents forming part of the contract.

Attempts from the Contractor or the Employer to introduce material changes in the tender price, commercial terms, or technical specifications in the tender should not be made and are not in accordance with international good procurement practise.

The Employer shall forward a draft contract to Danida prior to tendering.

Also, the final contract together with documentation of the contract negotiations including all changes made to the technical and financial part must be submitted to Danida for approval and the effectiveness of the contract shall be conditioned by such approval in writing.

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Annex A: General Conditions for the Approval of Commercial Contracts financed under Danish Mixed Credits, August 2007 The specific conditions for the provision of support under the Danish Mixed Credits will appear from the preliminary and the final approval of the support from the Ministry of Foreign Affairs of Denmark (Danida) for the project in question.

These General Conditions for (a commercial) contract between the Buyer and the Supplier (in the following called the Employer and the Contractor respectively) and the support as herein set out shall form an integral part of Danida’s approval of the support unless it is stated in Danida’s approval of the support to the specific project that the general conditions or any part thereof shall not apply.

1. Basic Conditions Tender documents and contract documents shall use the structure, formats and wording presented in



as appropriate, and


Use of other standards, whether international or national is usually not accepted by Danida. If in exceptional cases use of another standard is accepted, the detailed conditions of the “General Conditions” used shall not be changed in any way, but all adjustments or changes to the “General Conditions” shall be specified in the “Particular Conditions” (“Special Conditions”).

Combination of documents from various sources (using e.g. a national standard for the Letter of Invitation, Instructions to Tenderers, Form of Tender and Appendix to Tender while using FIDIC Conditions of Contract) shall be avoided.

The conditions of contract shall include Danida’s specific conditions or amendments as listed below and which shall appear in all contracts financed under Danish Mixed Credits unless otherwise stated in the project approval.

2. Specific Conditions The entire text below is an integral part of the General Conditions for approval of commercial contracts.

The paragraphs in italics are the specific conditions or amendments, which shall appear in the appropriate place in the Contract (in the Contract Agreement, the Appendix to Tender, the Particular Conditions or the Forms of Guarantees) and without any change.

References to the relevant parts and clauses of the Conditions of Contract for Plant and Design-Build (1999) and Conditions of Contract for Construction (1999) are given in brackets.

Project Receiving Development Assistance (Contract Agreement)

The Contract shall include the following statement:

The financing of this contract is expected to receive official development assistance from the Ministry of Foreign

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Affairs of Denmark (Danida) mainly in the form of payment of interest on the Danish loan.

Contract Coming into Force (Contract Agreement)

This contract shall come into force on the date when all of the following conditions have been fulfilled: (a) The Employer has signed a formal Letter of Acceptance or (if there is no Letter of Acceptance) the

Contract Agreement has been signed on behalf of the Employer and the Contractor. (b) Approval of the contract and final approval of the proposed financial support by Danida. (c) All conditions precedent and necessary approvals with regard to the loan agreement has been

fulfilled/obtained. (d) The Contractor has submitted to the Employer the performance guarantee and the advance payment

guarantee in the required format. (e) The Employer has paid the Contractor the advance payment. The Parties agree to do their best to expedite and complete the transactions required to meet these conditions. If the conditions are not met within [a period of not less than three months] of the Letter of Acceptance, the Letter of Acceptance and the Contract Agreement shall be null and void. Both the Employer (Buyer) and the Contractor (Exporter) are aware that a signed Buyer/End User’s Declaration and a signed Exporter’s Declaration must be available on the terms as required by Danida, before any disbursement under the loan can be effected.

Approval by Danida (Contract Agreement)

No changes to this Contract shall be made without prior written approval from Danida.

Defects Notification Period (Particular Conditions 1.1.3.7) The defects notification period shall be ... (not less than 12 months) after issue of the Taking-over Certificate (tests on completion and provisional taking-over).

Dividing the Works in Sections (Appendix to Tender 1.1.5.6)

The Works may be divided into sections (parts) and Taking-over Certificates may be issued for parts of the Works. If so, the issue of the Performance Certificate shall take place after the defects notification period and the remedying of the individual section of the Works. However, the performance guarantee shall remain valid in full until issue of the performance for the last completed section.

If to be divided into sections:

The Works shall be divided in sections: [define the sections, the value, the time for completion and the delay damages for each section].

Governing Law and Ruling Language (Appendix to Tender 1.4) Governing law: The law of the Employer’s Country Ruling Language: The English language.

Employer’s Claims (Particular Conditions 2.5) Payment in connection with the Employer’s claims shall be deducted in the payments under the Contract or credited the balance of the Mixed Credits loan as agreed with Danida.

Performance Security (Particular Conditions 4.2) A condition for the contract coming into force is that the Contractor furnishes a performance security, by way

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of an on-demand (unconditional) bank guarantee. The guarantee shall be issued by the Contractor’s bank in an amount equal to 10% of the total contract price with effect from the day of advance payment. The guarantee shall serve as security for the due performance under the contract. The said guarantee shall expire upon issue of the verified Performance Certificate (at the end of the defects notification period and time for remedying - the defects liability period), subject to a clean verification certificate being available. However, in case no verification certificate can be produced and this is not due to the Contractor, the guarantee shall lapse 6 months after the end of the defects liability period. Any amount paid under the guarantee shall be transferred to an escrow account with the Ministry of Foreign Affairs of Denmark as beneficiary, and placed in the Danish bank acting as Lender of the mixed credits. Amounts in the escrow account may only be released subject to acceptance from Danida, and shall be credited to the loan account unless an acceptance of the use of the amount is obtained from Danida within 18 months from the payment under the guarantee. However, if a dispute regarding the amount paid under the guarantee is brought before arbitration or the judicial system, the escrow account shall remain open and no amount shall be transferred until a settlement has been reached by the judicial system.

Any limitations in the Conditions of Contract of the Employer’s rights to make a claim under the Performance Security shall be deleted (as e.g. Particular Conditions 4.2, 4th paragraph).

A final draft guarantee shall be included in the Contract in the format as shown in attachment B to Annex C of “Rules and Guidelines for Procurement under Danish Tied Mixed Credits to Developing Countries”.

Manner of Execution (Particular Conditions 7.1) All plant and materials supplied for incorporation in the works shall be new and never used.

Taking-over Certificate (Particular Conditions 10.1) A condition for issuing the Taking-over Certificate is that the Contractor has provided a clean verification certificate by an independent third party appointed by Danida. Danida requires such verification certificate upon completion of the Works to verify that performance is according to contract. The verification requirements are specified in ”Guidelines for Inspection/Verification”, available from Danida’s Secretariat for Mixed Credits. The Contractor is responsible for agreeing with the verification party on the timing of the required verifications. Danida will pay for the verification.

Performance Certificate (Particular Conditions 11.9)

A condition for issuing the Performance Certificate is that the Contractor has provided a clean verification certificate by an independent third party appointed by Danida. Danida requires such verification certificate after the end of the defects notification period and remedying any defects to verify that performance is according to contract. The verification requirements are specified in “Guidelines for Inspection/Verification”, available from Danida’s Secretariat for Mixed Credits. The Contractor is responsible for agreeing with the verification party on the timing of the required verifications. Danida will pay for the verification.

Variations and Contractor’s Claims (Particular Conditions 13.1 and 20.1)

Apart from use of provisional sums in accordance with the Contract variations and Contractor’s claims shall not be financed under the Danish Mixed Credits unless otherwise agreed with Danida.

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Adjustments for Changes in Cost (Appendix to Tender 13.8) The Contract Price shall not be adjusted for changes in cost. The Contract Price subject to changes in cost: N/A.

Taxes and Duties in the Employer’s Country (Particular Conditions 14.1 (b))

However, Goods imported by the Contractor into the Employer’s Country for the Works shall be exempt from customs and other import duties and taxes (including VAT), subject to the conditions below. In this Sub-Paragraph, “Goods” include consumables and other expendables required for the Contractor’s Equipment.

(i) The Contractor shall prepare the necessary exemption and other documents in accordance with the

Laws of the Country, the requirements of customs and other legally constituted authorities, and any other reasonable requirements of the Recipient. The Contractor shall be entirely responsible for the presentation of documentation in order to clear the Goods through the customs authorities, and shall be deemed to have been satisfied (before submitting the Tender) as to all relevant procedures.

(ii) All imported Goods, which are not incorporated in or expended in connection with the Works, shall be exported on completion of the Contract. If not exported, or if used in connection with other contracts, the Goods will be assessed for duties (as applicable to the Goods involved) in accordance with the laws of the Employer’s Country, and the Contractor shall pay such duties accordingly. The Contractor shall not be entitled to exemption from: (a) port dues, quay dues and similar charges, and (b) any element of duty or tax inherent (including VAT) in the price of goods or services

procured in the Employer’s Country, which shall be deemed to be included in the Accepted Contract Amount.

(iii) The Employer shall be responsible for exemptions under this Sub-Clause, except to the extent that non-exemption is attributable to a failure by the Contractor to comply with the relevant procedures. In the event that exemption is not granted, the Contractor shall endeavour to minimise the disruption to the progress of the Works, including paying the duties and/or taxes. The Employer shall then repay to the Contractor the amount of such duties and taxes as were due and paid and to which the Contractor was entitled to exemption under this Sub-Clause, in the currency in which the duties and/or taxes were paid by the Contractor.

(iv) The Employer shall issue to the Contractor, prior to the Commencement Date, a copy of the relevant parts of the Government Agreement relevant for the Mixed Credits Support. If the Employer fails to repay any amount due under this Sub-Clause by the date on which the Taking-Over Certificate is issued for the Works, other than by reason of a failure by the Contractor to provide the appropriate documentation entitling him to payment of such amount, it shall be certified and paid in accordance with Clause 14 and included in the Contract Price.

(v) If and to the extent that the following conditions apply, namely (a) the Contractor is exempted from a duty or tax, which is applicable in the Employer’s

Country in accordance with its laws, (b) such exemption is unforeseeable and is not an entitlement under this Sub-Clause, and (c) the amount of duty or tax is either refunded to, or not paid by, the Contractor, then such amount shall be agreed or determined by the Engineer in accordance with Sub-Clauses 2.5 and 3.5, and shall be paid by the Contractor to the Employer. However, the Contractor shall be under no obligation to the Employer to apply for any such exemption.

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Terms of Payment (Appendix to Tender 14.2, 14.3, 14.5 and 14.6) Payment shall be in three instalments, advance payment, interim payments and payment on completion.

The terms of payment shall be: (a) Advance payment of not less than 15% of the total contract amount against an advance payment

guarantee covering an equal amount and a performance guarantee covering an amount equal to 10% of the total contract amount,

(b) Interim payments according to deliveries and/or works and/or services carried out [100% less (a) and less (c)] of the total contract amount against supporting documents in respect of deliveries and/or interim payment certificates in respect of works and/or services performed,

(c) Payment of not less than 10% of the total contract price upon completion and issue of a verified Taking-over Certificate.

The advance payment shall not be repaid by deductions in the Payment Certificates for the interim payments. Retention shall not be used. Minimum amount of Interim Payment Certificates shall be [specify].

Advance Payment Guarantee (Particular Conditions 14.2) A condition for the contract coming into force and payment by the Employer of the advance payment is that the Contractor furnishes an unconditional bank guarantee, issued by the Contractor’s bank of an amount corresponding to the advance payment and with effect from the day of the advance payment. The guarantee shall serve as security for the advance payment until the day of completion and issue of a verified Taking-over Certificate for the Works, or if the Works are sub-divided into Sections, the Section completed last. The guaranteed amount may be reduced corresponding to the proportion of the total of all certified interim payments (excluding the advance payment).

A final draft guarantee shall be included in the Contract in the format as shown in attachment C to Annex C of “Rules and Guidelines for Procurement under Danish Tied Mixed Credits to Developing Countries”.

Schedule of Payments (Particular Conditions 14.4)

If the Contract does not include a Schedule of Payments, the Contractor shall within 14 days of signing the Contract submit non-binding estimates of the payments he expects to become due during each quarter. This schedule shall be feasible and allow for minor delays in the implementation of the project. If a date for the Taking-over and payment of the final payment is specified in the contract, the said date should not be less than 6 months after the stipulated date for completion.

Plant and Materials intended for the Works (Appendix to Tender 14.5)

Supply of plant and materials shall be CIP Site (Incoterms 2000: Carriage and Insurance paid to named place of destination).

Plant and Materials for payment when shipped to the site: Nil Plant and materials for payment when delivered to the site: [list] CIP Site (Incoterms 2000: Carriage and Insurance paid to named place of destination).

Currencies of Payment (Appendix to Tender 14.15) Contracts shall be in EUR or USD. If a contract is concluded in a currency, which imposes a

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currency risk, the Contractor, respectively the Employer, shall be responsible to cover its exchange risk.

A split of the contract amount into these two currencies may be accepted.

Currencies and proportions: (Specify)

Bribery and Collusion (Particular Conditions 15.2)

Danida upholds zero tolerance towards corrupt, facilitating, fraudulent, collusive and coercive practises and requires the same from Employers, as well as Tenderers, Contractors, Sub-Contractors, and Consultants under contracts supported by Danish Mixed Credits. In pursuit of this policy Danida (a) defines, for the purposes of this provision, the terms set forth below as follows:

(i) ”corrupt practices” means the offering, giving, receiving, or soliciting, directly or indirectly, of any thing of value to influence the action of a public official in the procurement process or in contract execution,

(ii) ”facilitating practices” is a form of corruption offering payments in order to expedite or facilitate the performance by a public official of a routine governmental action and not to obtain or retain business or any other improper advantage.

(iii) ”fraudulent practices” means a misrepresentation or omission of facts in order to influence a procurement process or the execution of a contract,

(iv) ”collusive practices” means a scheme or arrangement between two or more bidders, with or without the knowledge of the Employer, designed to establish bid prices at artificial, non-competitive levels,

(v) ”coercive practices” means harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract.

(b) will reject a proposal for award if it determines that the preferred Tenderer, directly or through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for the Contract in question,

(c) will cancel the support for the project if it determines at any time that representatives of the Employer engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the procurement or the execution of that contract, without the Employer having taken timely and appropriate action satisfactory to Danida to remedy the situation,

(d) will sanction a firm or individual, including declaring them ineligible, either indefinitely or for a stated period of time, to be awarded a contract supported by Danish Mixed Credits, if it at any time determines that they have, directly or through an agent, engaged in corrupt, facilitating fraudulent, collusive or coercive practices in competing for, or in executing, a contract supported by Danish Mixed Credits.

The Employer may, if it determines tenderers/contractors engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the tender process or the execution of the contract, exclude such tenderers/ contractors from participating, or cancel the Tender or Contract as appropriate, and take such additional actions (civil and/or criminal) as the Employer finds appropriate.

Insurances (Appendix to Tender 18.1, 18.2 and 18.3)

Evidence of insurance within [days] from commencement. Relevant policies within [days] from commencement. Maximum amount of deductibles: N/A.

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Minimum amount of third party insurance: [specify amount].

Right of Stoppage by Danida (Particular Conditions 19.8) The right of stoppage by Danida means that the Exporter (Contractor) may be ordered directly or indirectly by Danida (i) to withhold supplies, e.g. by not shipping them, (ii) to prevent the delivery of the supplies to the Buyer (Employer)/End User, e.g. by stopping any goods shipped, even if shipment has been completed, or (iii) that the Lender may be ordered by Danida to stop disbursements under the loan.

In the case of failure by either or both the parties to comply with the Exporter’s (Contractor’s) Declaration and/or the Buyer (Employer)/End User’s Declaration, Danida is entitled to require the performance of the contract to be stopped, directly or indirectly - permanently or temporarily - so that design, works and shipment of supplies under the project and presentation of documents to the lender for payment be stopped forthwith.

In connection with a temporary stoppage, as indicated above, the contracting parties are willing to discuss the situation with Danida or an independent consultant appointed by Danida, in order to clarify the issues having arisen and to propose a possible solution acceptable to Danida.

If a stoppage, as indicated above, is due to a breach of the Buyer (Employer)/End User’s Declaration, and no agreement acceptable to Danida is reached, Danida’s support for the project will be discontinued, and any support already paid will have to be reimbursed by the Buyer (Employer)/End User, and the Lender and the Borrower will initiate negotiations of the possibilities for continuing financing without Danida’s support.

Danida will not be liable for any loss suffered by the contracting parties under the Contract due to any such stoppage as indicated above, or due to Danida’s support being discontinued if no acceptable agreement on completion can be reached.

In the event of Danida exercising it’s right to order stoppage of the design, the works, the shipment of supplies, and/or the payment by the Lender, as described in the Exporter’s (Contractor’s) Declaration and/or the Buyer (Employer)/End User’s Declaration, such stoppage shall be considered as a circumstance outside the control of the Parties, without prejudice to the rights of either Party.

Disputes (Appendix to Tender 20.2 and 20.3)

Unless the Engineer (although appointed by the Employer) is to make pre-arbitral decisions under the option described in Clause 20, the contract should include provisions, whilst not discouraging the Parties from reaching agreement on disputes as the works proceed, allow them to refer contentious matters to an impartial dispute adjudication board (DAB).

The adjudication procedure depends for its success on, amongst other things, the Parties’ confidence in the agreed individual(s) who will serve on the DAB. Therefore, it is essential that candidates for this position are not imposed by either Party on the other Party; and that, if the individual is selected under Sub-Clause 20.3, appointment the appointing entity or official named in the Appendix to Tender, the selection is made by a wholly impartial entity.

Sub-Clause 20.2 envisages appointment of the DAB after a Party gives notice of its intention to refer a dispute to a DAB. For certain types of project, particularly those involving extensive work on Site, where it would be appropriate for the DAB to visit the Site on a regular basis, it may be decided to retain the services of a permanent DAB.

Sub-Clause 20.2 provides for two alternative arrangements for the DAB:

(a) one person, who acts as the sole member of the DAB, having entered into a tripartite agreement with both Parties, or

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(b) a DAB of three persons, each of whom has entered into a tripartite agreement with both Parties.

The Dispute Adjudication Board shall be [specify whether one or three persons and propose name(s)]. Appointment (if not agreed) to be made by: The President of FIDIC or a person by the President.

Arbitration (Appendix to Tender 20.6)

Any dispute in respect of which the DAB’s decision has not become final and binding, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce under the law and language stated in Sub-Clause 1.4. The place of arbitration shall be in accordance with the ICC Rules of Arbitration.

Form of Advance Payment Guarantee The advance payment guarantee shall be a demand guarantee (unconditional).

The guarantee shall be issued in the Amount and the Currency for Payment. If more than one Currency for Payment, the currencies and amounts shall appear in the guarantee.

This guarantee shall remain valid and in effect from the date of the advance payment under the Contract until the day of issue of a verified Taking-over Certificate for the Works, or if the Works are sub-divided into Sections, the Section completed last.

The guaranteed amount may be reduced corresponding to the proportion of the total of all certified interim payments (excluding the advance payment).

If a fixed date of expiry is stated in the guarantee, such a date shall be no earlier than 6 months after the stipulated date of issue of the Taking-over Certificate for the Works, or if the Works are sub-divided into Sections, the Section to be completed last.

The guarantee shall include the following statement:

This guarantee shall be governed by the laws of [insert country] law and shall be subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 458, except that subparagraph (ii) of Sub-article 20(a) shall be excluded.

Form of Performance Security The performance security shall be a demand (unconditional) bank guarantee and any conditions limiting the Employer’s right to make a claim shall be deleted from the Contract.

The guarantee shall be issued in the Amount(s) and the Currency(ies) for Payment of the Contract. If more than one currency, the currencies and amounts shall appear in the guarantee.

The guarantee shall remain effective in full until the date of issue of the Performance Certificate for the Works, or if the Works are sub-divided into Sections, the Section completed last.

If a fixed date of expiry is stated in the guarantee, such date shall be no earlier than 6 months from the stipulated date of issue of the Performance Certificate for the Works, or if the Works are sub-divided into Sections, the Section of the Section to be completed last.

The guarantee shall include the following statement:

This guarantee shall be governed by the laws of [insert country], and shall be subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 458, except that subparagraph (ii) of Sub-article 20(a) shall be excluded.

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Annex B: Example, Pre-qualification Documents and Criteria, Danish Tied Mixed Credits, August 2007

The contractor for works and/or goods (in the following called the Works) financed under Danish Tied Mixed Credits shall be selected through competitive tendering among Danish firms or joint ventures following pre-qualification.

The pre-qualification should result in a sufficient number of eligible and qualified applicants being invited to ensure that at least two tenders are obtained. If the number of tenders is less than two, re-tendering shall take place unless otherwise approved by Danida.

The Employer shall arrange for announcement of the pre-qualification in Denmark as well as in the Employer’s country.

A draft of the announcement may be forwarded to Danida with a request to advertise the announcement on Danida’s home page and in Danish newspaper(s) and possibly with a copy to the relevant trade or employers’ organisation. An announcement with the same contents shall be advertised by the Employer in accordance with the rules in his country.

The announcement shall include

- Reference to the application by the Borrower/Employer for support by Danish Mixed Credits

- Name of the Project and types of the works, supplies, and services - Information on eligibility, i.e. participation is restricted to Danish firms or in the event of

joint ventures, a Danish firm as leader, - Name, address, phone and e-mail address of the Employer and name of contact person, - Contents of an application, i.e. filled-in standard Form of Application and Forms of

Information, - Information on where pre-qualification documents may be obtained, - Information on the place and deadline for submitting applications, - Expected date of Invitation to Tender.

In circumstances where pre-qualification does not or would not result in a sufficient number of eligible and qualified applicants or for other reasons cannot be applied, the procedure for procurement shall need approval in writing by Danida.

If pre-qualification is not applied, invitations to tender should be issued to all respondents and post-qualification applied. All tenderers shall submit, with their tender, the required qualification information (in the Information Forms as attached to this Annex) and any required documentation. The eligibility and qualifications of the tenderer with the best-evaluated tender shall then be verified by the Employer.

Examples of pre-qualification documents including Invitation for Pre-qualification, Instructions to Applicants, Project Summary, Criteria for Pre-qualification, and Information Forms are shown below.

The examples and formats may be adapted by the Employer to the applicable tender laws, type of project, and situation of the procurement.

In this Annex B, following indications have been adopted for the convenience of users:

Square brackets "[ ]" enclosing text in normal font indicate optional and/or alternative wording. The “[ ]” must not appear in the Tender Documents.

Square brackets "[]" enclosing italicised text are intended to assist the editor of, and must not appear in, the Tender Documents.

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Round brackets “( )” enclosing text in normal font indicate text, which is to be included (within round brackets) in the Tender Documents.

Round italicised brackets “( )” enclosing italicised text are to be included (within the brackets) in the Tender Documents as notes for the tenderers.

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Invitation for Pre-qualification [to be issued on the Letterhead of the Employer] Dear Sir/Madam Subject: Pre-qualification for the [insert type of works and/or goods to be provided] for the Project

[insert name of Project and Country] The [insert name of Borrower/Buyer] [has applied/ intents to apply] to Danida for Danish Tied Mixed Credits towards the cost of the [insert name of project], and it intends to apply this credit for payments under the contract for [insert a description of the works and/or goods to be provided]. The [name of implementing agency] (the Employer) intends to pre-qualify contractors for this contract.

It is expected that Invitations to Tender will be issued in [insert month and year].

Tendering is restricted to eligible Danish firms, or in the event of joint ventures, joint ventures with a Danish leader.

A complete set of the pre-qualification documents including - Instructions to Applicants - Summary of the Project and the works and/or supply of goods (the Works) [a brief description,

of maximum 1-2 pages] - Criteria for pre-qualification - Information Forms (1) to (8) is enclosed.

The application for pre-qualification comprises the Letter of Application and Information Forms (1) through (8) completed by the applicant. These documents, together with a brief profile of the applicant, and annual reports for the past five years, shall be submitted in [two copies] in the [specify language] language. Applications for pre-qualification should be submitted in sealed envelopes, clearly marked “Application to Pre-qualify for [insert name of project and contract name]", and delivered to the address below before [insert date and time]. [Insert name of office of the Employer] [Insert name of contact person of the Employer] [Insert postal address] and/or [Insert street address] [Insert telephone number, indicate country and city code] [Insert facsimile number] [Insert e-mail address] Yours sincerely, [Name]

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Instructions to Applicants

1 General

1.1 Source of Funds The Borrower named in the Invitation for Pre-qualification intends to apply or has applied to Danida for Danish Tied Mixed Credits toward the cost of the Project as named in the Invitation for Pre-qualification and intends to apply this credit to finance the works and/or supply of goods (the Works) named in the Invitation to Pre-qualification and described in the Summary.

1.2 Scope of Work The Employer intends to pre-qualify contractors for the Works as described in the Summary.

1.3 Invitation to Tender It is expected that pre-qualified applicants will receive an Invitation to Tender in the month and year indicated in Invitation for Pre-qualification.

1.4 Type of Contract Origin of tender documents and origin and type of contract documents and the time for completion are indicated in the Summary.

1.5 Site Information Relevant information on the site, project layout, expected construction period, facilities, services provided by the Employer, and other relevant data are given in the Summary.

2 Fraud and Corruption Danida upholds zero tolerance towards corrupt, facilitating, fraudulent, collusive and coercive practises and requires the same from Employers, as well as Tenderers, Contractors, Sub-Contractors, and Consultants under contracts supported by Danish Mixed Credits. In pursuit of this policy Danida

(a) defines, for the purposes of this provision, the terms set forth below as follows:

(i) "corrupt practices” means the offering, giving, receiving, or soliciting, directly or indirectly, of any thing of value to influence the action of a public official in the procurement process or in contract execution,

(ii) "facilitating practices" is a form of corruption offering payments in order to expedite or facilitate the performance by a public official of a routine governmental action and not to obtain or retain business or any other improper advantage.

(iii) "fraudulent practices" means a misrepresentation or omission of facts in order to influence a procurement process or the execution of a contract,

(iv) "collusive practices" means a scheme or arrangement between two or more tenderers, with or without the knowledge of the Employer, designed to establish tender prices at artificial, non-competitive levels,

(v) "coercive practices" means harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract.

(b) will reject a proposal for award if it determines that the preferred Tenderer, directly or

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through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for the Contract in question,

(c) will cancel the support for the project if it determines at any time that representatives of the Employer engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the procurement or the execution of that contract, without the Employer having taken timely and appropriate action satisfactory to the Danida to remedy the situation,

(d) will sanction a firm or individual, including declaring them ineligible, either indefinitely or for a stated period of time, to be awarded contracts supported by Danish Mixed Credits, if it at any time determines that they have, directly or through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for, or in executing, a contract supported by Danish Mixed Credits.

The Employer may, if it determines applicants/tenderers engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the tender process, exclude such applicants/tenderers from participating, or cancel the Tender or Contract as appropriate, and take such additional actions (civil and/or criminal) as the Employer finds appropriate.

3 Eligibility

3.1 Danish Contents Works and supply of goods financed under Danish Tied Mixed Credits shall be tendered and contracted as one contract with a Danish contractor or joint venture. Any local or third country part to be financed under Danish Tied Mixed Credits shall be included in this tendering whether in the main contract or in sub-contracts, with the Danish contractor or joint venture being responsible towards the Employer.

Works and supply of goods financed under Danish Mixed Credits must contain a degree of know-how and technology transfer to the Employer. Furthermore, works and goods must be of high quality with long lifetime.

[EITHER: For Danish Tied Mixed Credits to China it is required that the Danish contents of works, supply of goods and provision of services are at least 25% of the quoted contract amount, calculated on the basis of the guaranteed risk sum declared by the Contractor. For details please refer to the “Eksport Kredit Fonden, EKF” (www.ekf.dk) OR: For Danish Tied Mixed Credits to other Developing Countries there is no requirement to the Danish contents.] [Use the former for contracts to be financed under Danish Tied Mixed Credits to China and the latter for contracts financed under Danish Tied Mixed Credits to other developing countries.]

3.2 Eligible Tenderers Tendering is open to eligible Danish firms or joint ventures conditioned by the following,

(a) The Danish firm is main contractor, or in the event of a joint venture, leader


(c) The Danish main Contractor or leader (together with its sub-contractors) is responsible for undertaking minimum 60 % of the Contract Value. Proof hereof shall be provided in the form of pre-contract agreements attached to the tender and later in the form of a joint venture agreement or subcontracts attached to the contract. Verification may be required by Danida.

Government-owned enterprises in the Employer’s country may participate only if they can establish

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that they (i) are legally and financially autonomous, and (ii) operate under commercial law. No dependent agency of the Employer under a project financed by Danish Mixed Credits shall be permitted to tender or submit a proposal for the providing works or goods under the project.

4 Qualification Criteria

4.1 General Pre-qualification will be based on applicants meeting all the minimum pass–fail criteria regarding their general and particular experience, financial capabilities, personnel capabilities and equipment capabilities, and litigation history as demonstrated by the applicant’s responses in the Information Forms attached to the Letter of Application. Additional requirements for joint ventures are given in Section 5. The qualifications, capacity, and resources of proposed subcontractors will not be taken into account in assessing those of individual or joint venture applicants, unless they are named specialist subcontractors pursuant to Sub-Clause 4.4.

4.2 Nominated Subcontracting Nominated Subcontracting shall not be used in connection with the tendering and award of contracts financed under Danish Mixed Credits.

4.3 Subcontracting If an applicant intends to subcontract parts of the Works such that the total of subcontracting is more than the 30% of the total value of the Works, that intention shall be stated in the Letter of Application, together with a tentative listing of the elements of the Works to be subcontracted.

4.4 Specialist Subcontracting If an applicant intends to subcontract any highly specialized elements of the Works to specialist subcontractors, such elements and the proposed subcontractors shall be clearly identified, and the experience and capacity of the subcontractors shall be described in the relevant Information Forms.

4.5 Acceptable Substitutes With reference to Sub-Clauses 4.3 and 4.4, the Employer may require applicants to provide more information about their proposals. If any proposed subcontractor is found ineligible or unsuitable to carry out an assigned task, the Employer may request the applicant to propose an acceptable substitute.

4.6 Contractor’s Responsibility After award of contract, the subcontracting of any part of the Works and goods to be supplied, other than for the provision of labour and materials, or to subcontractors named in the Contract, shall require the prior consent of the Employer. Notwithstanding such consent, the Contractor shall remain responsible for the acts, defaults, and neglects of all subcontractors during contract implementation.

4.7 General Experience The applicant shall provide evidence that

(a) he has been actively engaged in works and/or supply of goods in the role of main contractor, leader of joint venture or sub-contractor as relevant for the past [insert number of years, usually not less than three] years,

(b) his average annual turnover in similar works and/or supply of goods of minimum [insert

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currency and amount, usually not less than twice the estimated annual turnover for the Contract].

4.8 Particular Experience The applicant shall provide evidence that

(a) he has successfully completed [insert number of contracts, usually one to three] contracts for works and/or supply of goods of comparable size and complexity during the past five years,

(b) he has successfully completed [insert number of contracts, usually at least one] contracts for works and/or supply of goods of comparable size and complexity in [insert geographical region] during the past five years.

4.9 Financial Capabilities The applicant shall provide evidence that

(a) he has access to or has available liquid assets, lines of credit or other financial means (independent of any advance payment on the Contract) of an mount of [insert currency and amount required to finance outlays on the Contract until receiving payments, usually 25-50% of the annual turnover of the Contract],

(b) his operations are long term profitable and his financial situation is sound, demonstrated through as a minimum, extracts of audited profit and loss account and balance sheets for the past five years or similar statements.

4.10 Personnel Capabilities The applicant shall provide evidence that

(a) he has management and overall personnel resources within administration, financial, technical, quality assurance etc. required for execution of a contract of comparable size and complexity,

(b) he has available key staff for contract management, site management, and specialist positions required for the execution of the Contract [list key staff as relevant - if the key staff for the execution of the Contract will be included in the tender evaluation, they should not also be included in the evaluation of the Personnel Capabilities here and this Sub-paragraph (b) shall be deleted].

4.11 Equipment Capabilities The applicant shall provide evidence that he has equipment adequate for undertaking the Contract, with evidence that he owns, or have assured access (through hire, lease, purchase agreement, other commercial means, or approved subcontracting) to the following key items of equipment, in full working order and must demonstrate that, based on known commitments, they will be available for timely use in the proposed contract, [list items and numbers].

4.12 Litigation History The applicant shall provide accurate information on the related Form of Information about any litigation or arbitration resulting from contracts completed or ongoing under its execution over the last five years. A consistent history of awards against the applicant or any member of the joint venture may result in failure of the application.

4.13 Right to Waive The Employer reserves the right to waive minor deviations in the qualification criteria if they do not materially affect the capability of an applicant to perform the contract.

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5 Joint Ventures

5.1 Eligibility If the applicant comprises a number of firms combining their resources in a joint venture, the legal entity constituting the joint venture shall, if registration is required be registered in Denmark, and the leader shall be registered in Denmark.

5.2 Qualification Criteria The joint venture must satisfy collectively the criteria of Clause 4. For this purpose the following data of each member of the joint venture may be added together to meet the collective qualifying criteria:

(a) average annual turnover (Sub-Clause 4.7 (b]),

(b) particular experience (Sub-Clause 4.8 (a) and (b)),

(c) cash available and financial soundness (Sub-Clause 4.9 (a) and (b)),

(d) personnel capabilities (Sub-Clause 4.10 (a) and (b)), and

(e) equipment capabilities (Sub-Clause 4.11).

Each member must satisfy the following criteria individually:

(a) general construction experience for the period of years stated in Sub-Clause 4.7 (a),

(b) financial soundness (Sub-Clause 4.9 (b)), and

(d) litigation history (Sub-Clause 4.12).

In accordance with the above, the Application shall include all related information required under Clause 4 for individual members of the joint venture.

5.3 Leader One of the members, who is responsible for performing contract management and is (together with its sub-contractors) executing minimum 60% of the value of the proposed contract, shall be nominated as being the leader during the pre-qualification and tender periods and, in the event of a successful tender, during contract execution. The leader shall be authorised to incur liabilities and receive instructions for and on behalf of any and all members of the joint venture, this authorization shall be evidenced by submitting a power of attorney signed by legally authorised signatories of all the members.

5.4 Limitation in number of members Not applicable in connection with the tendering of contracts financed under Danish Mixed Credits.

5.5 Joint and Several Liability All members of the joint venture shall be legally liable, jointly and severally, during the tender process and for the execution of the contract in accordance with the contract terms, and a statement to this effect shall be included in the authorisation mentioned under Sub-Clause 5.3 above.

5.6 Joint Venture Agreement A Letter of Intent to execute a joint venture agreement in the event of a successful tender shall be signed by all members and submitted with the Application together with a summary of the proposed Agreement. Pursuant to Sub-Clauses 5.3 to 5.5 above, the joint venture agreement shall include among other things: the joint venture’s objectives, the proposed management structure, the contribution of each member of the joint venture operations, the commitment of the members of

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the joint venture and several liability for due performance, recourse/sanctions within the joint venture in the event of default or withdrawal of any member, and arrangements for providing the required indemnities.

5.7 Dissolution of Joint Venture The pre-qualification of a joint venture does not necessarily pre-qualify any of its members to tender individually or as a member in any other joint venture or association. In case of dissolution of a joint venture prior to the submission of Tenders, any of the constituent firms may be pre-qualified if they meet all of the pre-qualification requirements, subject to the written approval of the Employer. Individual members of a dissolved joint venture may participate as subcontractor to qualified applicants, subject to the provisions of Sub-Clause 9.3.

6 Domestic Tenderer Price Preference Not applicable in connection with the tendering of contracts financed under Danish Mixed Credits.

7 Requests for Clarification

7.1 Notification and Response Applicants are responsible for requesting any clarification of the pre-qualification documents. A request for clarification shall be made in writing to the Employer’s address indicated in the Invitation for pre-qualification. The Employer will respond to any request for clarification that it receives earlier than 14 days prior to the deadline for submission of applications. Copies of the Employer’s response, including a description of the inquiry but without identifying its source, will be forwarded to all recipients of the pre-qualification documents.

8 Submission of Applications

8.1 Delivery Submission of applications for pre-qualification must be received in sealed envelopes either delivered by hand or by registered mail to the address, and not later than the date stated in the Invitation for pre-qualification. The name and mailing address of the applicant shall be indicated on the envelope, which shall be clearly marked as indicated in the Invitation for Pre-qualification. A receipt will be given for all applications submitted.

8.2 Late Applications The Employer reserves the right to accept or reject late applications.

8.3 Language All information requested for pre-qualification shall be provided by applicants in the language indicated in the invitation for Pre-qualification. Information may be provided in another language, but it shall be accompanied by an accurate translation of its relevant passages into the language of the invitation. This translation will govern and will be used for interpreting the information.

8.4 Lack of Information Failure of an applicant to provide comprehensive and accurate information that is essential for the Employer’s evaluation of the applicant’s qualifications, or to provide timely clarification or substantiation of the information supplied, may result in disqualification of the applicant.

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8.5 Material Changes Applicants, and those subsequently pre-qualified, shall inform the Employer of any material change in information that might affect their qualification status. Tenderers shall be required to update key pre-qualification information at the time of tendering. Prior to award of contract, the best-evaluated tenderer will be required to confirm its continued qualified status in a post-qualification review process.

9 Employer’s Notification and Tender Process

9.1 Invitation to Tender Following the completion of the evaluation, the Employer will notify all unsuccessful applicants in writing, and invite successful applicants to submit tenders.

9.2 Conditional Pre-qualification Not applicable in connection with the tendering of contracts financed under Danish Mixed Credits.

9.3 One Tender per Tenderer Only firms and joint ventures that have been pre-qualified under this procedure may submit a tender. A firm shall submit only one tender in the same tender process, either individually or as a member of a joint venture. No firm can be a subcontractor while submitting a tender individually or as a member of a joint venture in the same tender process. A firm may participate as subcontractor to more than one tenderer. A tenderer who submits, or participates in, more than one tender will cause all the tenders in which the tenderer has participated to be disqualified.

9.4 Tender Security11 Tenderers will be required to provide tender security in the form and amount indicated in the tender documents.

9.5 Changes after Pre-qualification Any change in the structure or formation of an applicant after being pre-qualified and invited shall be subject to written approval of the Employer at least 28 days prior to the deadline for submission of tenders. Such approval will be denied if as a consequence of any change:

(a) an individual firm, or a joint venture as a whole, or any individual member of a joint venture fails to meet any of the collective or individual qualifying requirements,

(b) the new members of a joint venture were not pre-qualified in the first instance, either as individual firms or as another joint venture, or

(c) in the opinion of the Employer, this results in a substantial reduction in competition.

9.6 Employer’s Rights The Employer reserves the right to take the following actions, and shall not be liable for any such actions:

(a) amend the scope and cost of the contract to be tendered, in which event tenders will be invited only from those applicants who meet the resulting amended pre-qualification requirements,

(b) reject or accept any pre-qualification application, and/or any late application, and

11 Normally not used in connection with tendering for contracts financed under Danish Mixed Credit.

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(c) cancel the pre-qualification process and reject all applications.

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Project Summary

Should as a minimum include the following information (given in 2-3 pages or more if required):

1. Background and Description of the Project.

2. Description of the scope of works and/or supply of goods and provision of services to be provided, financed under Danish Mixed Credits.

3. Relevant information on the project location and site, facilities and services provided by the Employer, etc.

4. Origin of tender documents and origin and type of contract documents.

5. Tentative date of award, date of commencement and completion of the Works.

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Letter of Application

To: (name and address of the Employer)

(Name of Project and scope of works, supply of goods and provision of services)

1. Being duly authorized to represent and act on behalf of (insert name and address of applicant) (hereinafter referred to as "the applicant"), and having reviewed and fully understood all of the pre-qualification requirements and information provided, the undersigned hereby applies for pre-qualification to tender for the contract indicated above:

2. Attached to this letter are copies of original documents defining:

(a) the applicant’s legal status,

(b) the principal place of business, and

(c) the place of incorporation (for applicants that are corporations), or the place of registration and the nationality of the owners (for applicants that are partnerships or individually owned firms).

3. With reference to General Instructions Sub-Clause 4.3, it is our intention to subcontract approximately (insert approximate percentage) percentage of the Contract Price, details of which are provided herein.

4. Your Agency and its authorized representatives are hereby authorised to conduct any inquiries or investigations to verify the statements, documents, and information submitted in connection with this application, and to seek clarification from our bankers and clients regarding any financial and technical aspects. This Letter of Application will also serve as authorisation to any individual or authorized representative of any institution referred to in the supporting information to provide such information deemed necessary and as requested by yourselves to verify statements and information provided in this application, such as the resources, experience, and competence of the applicant.

5. Your Agency and its authorized representatives may contact the following persons for further information:

(insert name) (insert address and communication facilities)

(insert name) (insert address and communication facilities) 6. This application is made with the full understanding that:

(a) tenders by pre-qualified applicants will be subject to verification of all information submitted for pre-qualification at the time of tendering,

(b) your Agency reserves the right to

• amend the scope and value of the Contract to be tendered for, in which event, tenders will be invited only from those applicants who meet the resulting amended pre-qualification requirements, and

• reject or accept any application, cancel the pre-qualification process, and reject all applications.

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(c) your Agency shall not be liable for any such actions under 6 (b) above.

7. Applicants who are not joint ventures should delete paragraphs 8 and 9 and initial the deletions. The attention of applicants who are joint ventures is drawn to General Instructions to Applicants Sub-Clause 5.6 regarding Letters of Intent.

8. Appended to this application, we give details of the participation of each member, including capital contribution and profit/loss agreements, in the joint venture. We also specify the financial commitment in terms of the percentage of the value of the Contract, and the responsibilities for execution of the Contract.

9. We confirm that if we tender, the tender, as well as any resulting Contract, will be:

(a) signed so as to legally bind all members, jointly and severally, and

(b) submitted with a joint venture agreement providing the joint and several liability of all members in the event the contract is awarded to us.

10. The undersigned declare that the statements made and the information provided in the duly completed application are complete, true, and correct in every detail.

Date

Signed Signed

Name Name

For and on behalf of (name of applicant or leader of a joint venture)

For and on behalf of (name of member of joint venture

Signed Signed

Name Name

For and on behalf of (name of member of joint venture)

For and on behalf of (name of member of joint venture)

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Information Forms These Information Forms should be finalized by the Employer with appropriate minor changes to suit the particular pre- or post-qualification requirements of the specific contract.

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Information Form (1) Page of pages General Information All individual firms and each member of a joint venture are requested to complete the information in this form. Nationality information should be provided for all owners that are partnerships or individually owned firms. Where the applicant/tenderer proposes to use named subcontractors for highly specialized components of the Works, the following information should also be supplied for the subcontractor(s), together with the information in Forms 2, 3, 3A, 4, and 5. 1. Name of firm

2. Head office address

3. Telephone

Contact

4. Fax

Telex

5. Place of incorporation / registration

Year of incorporation / registration

Nationality of owners22

Name

Nationality

1.

2.

3.

4.

5.

22 To be completed by all owners of partnerships or individually owned firms.

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Information Form (2) Page of pages General Experience Record Name of applicant/tenderer or member of a joint venture

All individual firms and all members of a joint venture are requested to complete the information in this form. The information supplied should be the annual turnover of the applicant/tenderer (or each member of a joint venture), in terms of the amounts billed to clients for each year for work in progress or completed, converted to EURO at the rate of exchange at the end of the period reported. The annual periods should be calendar years, commencing with the years prior to the date of submission. A brief note on each contract should be appended, describing the nature of the work, duration and amount of contract, managerial arrangements, Employer, and other relevant details. Use a separate sheet for each member of a joint venture. Applicants/tenderers should not enclose testimonials, certificates, and publicity material with their applications; they will not be taken into account in the evaluation of qualifications.

Annual turnover data of construction of works and supply of goods

Year Turnover EURO equivalent

1.

2.

3.

4.

5.

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Information Form (2a) Page of pages Joint Venture Summary Names of all members of a joint venture 1. Leader 2. Member 3. Member 4. Etc.

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Information Form (3) Page of pages Particular Experience Record Name of applicant/tenderer or member of a joint venture or named subcontractor

On separate pages, using the format of Form (3A), the applicant/tenderer is requested to list contracts of a similar size and complexity to the Contract for which the applicant/tenderer wishes to qualify, and which the applicant has undertaken during the period specified in the criteria for qualification. Each member of a joint venture should provide details of similar contracts on which they have had proportionate experience. The contract value should be based on the payment currencies of the contracts converted into EURO, at the date of substantial completion, or for ongoing contracts at the time of award. The information is to be summarized, using Form (3A), for each contract completed or under execution, by the applicant or by each member of a joint venture. Where the applicant proposes to use named subcontractors for highly specialized elements of the Works, the information in the following forms should also be supplied for each subcontractor.

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Information Form (3a) Page of pages Details of Contracts of Similar Nature and Complexity Name of applicant/tenderer or member of a joint venture

Use a separate sheet for each contract. 1. Number of contract Name of contract Country 2. Name of Employer

3. Employer address

4. Nature of works and special features relevant to the contract for which the applicant wishes to pre-qualify

5. Contract role (check one)

Prime contractor Management contractor Subcontractor Member in a joint venture

6. Amount of the total contract/subcontract/member share (in specified currencies at completion, or at date of award for current contracts)

Currency Currency Currency

7. Equivalent amount EURO Total contract: EURO___________, Subcontract: EURO____________, Member share: EURO___________

8. Date of award/completion 9. Contract was completed _____ months ahead/behind original schedule (if behind, provide explanation). 10. Contract was completed EURO _________ equivalent under/over original contract amount (if over,

provide explanation). 11. Indicate the approximate percent of total contract value (and EURO amount) of work undertaken by

subcontract, if any, and the nature of such work.

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Information Form (4) Page of pages Financial Capabilities Name of applicant/tenderer or member of a joint venture

Each applicant/tenderer or member of a joint venture shall complete this form. A copy of the audited balance sheets shall be attached.

Autonomous construction subdivisions of parent conglomerate businesses shall submit financial information related only to the particular activities of the subdivision.

Banker Name of banker

Address of banker

Telephone

Contact name and title

Fax

Telex

Summarize actual assets and liabilities in EURO equivalent (at the rates of exchange current at the end of each year) for the previous five calendar years, or such period as stated in the criteria for qualification. Based upon known commitments, summarize projected assets and liabilities in EURO equivalent for the next two calendar years, unless the withholding of such information by stock market listed public companies can be substantiated by the applicant.

Financial information in EURO equivalent

Actual: Previous five years

Projected: Next two years

5. 4. 3. 2. 1.

0. 1.

1. Total assets

2. Current assets

3. Total liabilities

4. Current liabilities

5. Profits before taxes

6. Profits after taxes

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Specify proposed sources of financing, such as liquid assets, unencumbered real assets, lines of credit, and other financial means, net of current commitments, available to meet the total construction cash flow demands of the Contract as indicated in criteria for qualification.

Source of financing Amount (EURO equivalent) 1.

2.

3.

4.

Attach audited financial statements - including, profit and loss account and balance sheet for the period stated in criteria for qualification (for the individual applicant or each member of a joint venture).

If audits are not required by the laws of applicant’s/tenderer’s countries of origin, partnerships and firms owned by individuals may submit their balance sheets certified by a registered accountant,

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Information Form (5) Page of pages Personnel Capabilities, Overall Name of applicant/tenderer or member of a joint venture

Each applicant/tenderer or member of a joint venture shall complete this form specifying his overall personnel resources within administration, financial, technical, quality assurance etc.

Average number Own full-time manpower resources [year 1] [year 2] [year 3]

1 General management

2 Technical management

3 Administrative staff

4 Professional technical staff, total

hereof relevant for the direct execution of the Contract

5A [contract managers]

5B [site managers]

5C [key specialist, trade]

5D [key specialists, trade]

6 [Technicians and technical support staff]

7 [Foremen]

8 [Mechanics]

9 [Operators]

10 Other skilled and unskilled staff

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Information Form (6) Page of pages Personnel Capabilities, Particular Name of applicant/tenderer or member of a joint venture

For specific positions essential to contract management and implementation, applicants should provide the names of at least two candidates qualified to meet the specified requirements stated for each position. The data of their experience should be supplied on separate sheets using one Form (6A) for each candidate. If such candidates are also considered in the tender evaluation, they should not also be considered in the evaluation of qualifications and the Forms (6) and (6A) shall be marked N/A and not filled in. 1. Title of position

Name of prime candidate

Name of alternate candidate

2. Title of position









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Information Form (6a) Page of pages Candidate Summary Name of applicant/tenderer or member of a joint venture

Position

Candidate Prime Alternate

Candidate information

Name of candidate

Date of birth

Professional qualifications Present employment

Name of employer

Address of employer Telephone Contact (manager / personnel officer) Fax Telex Job title of candidate Years with present employer

Summarize professional experience over the last twenty years, in reverse chronological order. Indicate particular technical and managerial experience relevant to the project. From To Company / Project / Position / Relevant technical and management experience

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Information Form (7) Page of pages Equipment Capabilities Name of applicant/tenderer

The applicant/tenderer shall provide adequate information to demonstrate clearly that it has the capability to meet the requirements for each and all items of equipment listed in the criteria for qualification. A separate Form (6) shall be prepared for each item of equipment listed in the Criteria for qualification, or for alternative equipment proposed by the applicant. Item of equipment/tenderer Equipment information

Name of manufacturer

Model and power rating

Capacity

Year of manufacture

Current status Current location

Details of current commitments

Source Indicate source of the equipment

Owned Rented Leased Specially manufactured Omit the following information for equipment owned by the applicant/tenderer or member of a joint venture. Owner Name of owner Address of owner

Telephone Contact name and title Fax Telex Agreements Details of rental / lease / manufacture agreements specific to the project

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Information Form (8) Page of pages Litigation History Name of applicant/tenderer or member of a joint venture

Applicants, including each of the members of a joint venture, shall provide information on any history of litigation or arbitration resulting from contracts executed in the last five years or currently under execution. A separate sheet should be used for each member of a joint venture. Year Award FOR or

AGAINST applicant/tenderer

Name of client, cause of litigation, and matter in dispute Disputed amount (current value, EURO equivalent)

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Annex C: Example, Tender Documents and Evaluation Criteria, Danish Tied Mixed Credits, August 2007

Eligibility to tender The contractor for works and goods financed under Danish Tied Mixed Credits shall be selected through competitive tendering among Danish firms or joint ventures following pre-qualification.

The pre-qualification should result in a sufficient number of eligible and qualified applicants being invited to ensure that at least two tenders are obtained. If the number of tenders is less than two, re-tendering shall take place unless otherwise agreed with Danida.

In circumstances where pre-qualification does not result in a sufficient number of eligible and qualified applicants or cannot be applied, the procedure for procurement shall need approval by Danida.

If pre-qualification is not applied, invitations to tender shall be issued to all respondents and post-qualification applied. All tenderers shall submit, with their tender, information of their qualifications with documentation as required. The tenderers shall provide the information by filling-in information sheets in prescribed formats with documentation attached all as required. The eligibility and qualifications of the tenderer with the best-evaluated tender shall then be verified by the Employer.

Tender Documents to use FIDIC standards Tender documents and contract documents shall use the structure, formats and wording presented in the




- FIDIC - Contracts Guide (2000), Examples of Letter of Invitation and Instructions to Tenderers

Use of other standards, whether international or national is usually not accepted by Danida.

The two sets of contract documents are in general suited for:

FIDIC - Conditions of Contract for Plant and Design-Build:

- projects involving supply and installation of electrical and mechanical plant, building engineering works and possibly also infrastructure, where

- the Contractor will do the detailed design in accordance with outline or performance specification prepared by the Employer or the Engineer, “the Employer’s Requirements”,

- the Employer will appoint a person (a firm of consultants or the Project Manager to act as “the Engineer” and administer the Contract, monitor quality and certify payment,

- payment according to works completed, plant shipped, plant installed and/or services completed, generally on a lump sum basis.

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FIDIC - Conditions of Contract for Construction:

- traditional projects involving infrastructure, buildings, power plants etc., where

- the Employer (or the Engineer) will do most of the design (drawings and specifications),

- the Engineer will administer the Contract, monitor quality and certify payment,

- the Employer will follow the Works and make variations,

- payment according to bills of quantities or lump sum for works completed.

A third set of contract documents issued together with the other two, FIDIC - Conditions of Contract for EPC/Turnkey Projects suited for:

- projects involving process plant, power plants and other facilities, where

- the Employer wishes a higher degree of certainty that the agreed price and time will not be exceeded,

- the Employer wishes the Contractor takes total responsibility for the design, construction and hand over of the facility or infrastructure, in accordance with performance specifications prepared by the Employer or on behalf of the Employer (the Employer’s Requirements),

- the Employer wishes the implementation organised with only the Employer, possibly the “Employer’s Representative”, and the Contractor (no Engineer), without the Employer being involved in the day-to-day progress, and

- where the Employer may be willing to pay more to achieve certainty of the final price and time,

is normally not used in connection with projects financed by Danish Tied Mixed Credits.

Example of Tender Documents using the FIDIC - Conditions of Contract for Plant and Design-Build. The Tender Documents should comprise the following forms filled-in by the Employer as appropriate.

(i) Form of Letter of Invitation and the Form of Instructions to Tenderers with Form of Evaluation Criteria (and if post-qualification will be applied: and Information Forms (1) to (8) annexed).

(ii) Form of Letter of Tender and Appendix to Tender (shown in the relevant FIDIC-Conditions of Contract) filled-in in accordance with Danida’s “General Conditions for Approval of Commercial Contracts financed under the Danish Mixed Credits”).

(iii) Forms of Schedules to be completed by the tenderer (shown below).

(iv) Forms of Tender Guarantee, Advance Payment Guarantee, Performance Guarantee (shown below).

(v) Form of Contract Agreement (shown in the relevant FIDIC-Conditions of Contract, to be amended in accordance with “Danida’s General Conditions for Approval of Commercial Contracts financed under Danish Mixed Credits”).

(vi) Conditions of Contract (not to be reproduced but reference to be made to the relevant FIDIC-Conditions of Contract).

(vii) Form of Particular Conditions (to be drafted in accordance with “Guidance for the Preparation of Particular Conditions” as given in the relevant FIDIC-Conditions of

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Contract, amended in accordance with Danida’s “General Conditions for Approval of Commercial Contracts financed under the Danish Mixed Credits”).

(viii) Employer’s Requirements including outline drawings (to be drafted to suit the particular contract).

The forms above have been drafted as examples complying with Danida’s requirements.

Users may prepare their own documents, copying text from the example forms as appropriate. However, the form of Letter of Invitation assumes that the form of Instructions to Tenderers is being used and similarly the form of Particular Conditions assumes that the FIDIC Conditions of Contract are being used.

Please note that the forms above all use the same terminology and all are integral parts of the Tender Documents and will later, apart from (i), be integral parts of the Contract Document.

If using the FIDIC - Conditions of Contract for Construction, the forms (i) shall need to be amended and all the other forms replaced by the corresponding of the relevant FIDIC - Conditions of Contract.

Employers may have their own standard forms of Invitations and Instructions to Tenderers. Their standard forms may be equally suitable for use with FIDIC’s General Conditions, and may incorporate requirements, which are specific to the entity or the legislation in the Employer’s country.

However, the Tender Documents including the Conditions of Contract must comply with the requirements in Danida’s “General Conditions for the Approval of Commercial Contracts financed under the Danish Mixed Credits”.

In this Annex C, following indications have been adopted for the convenience of users:

Square brackets “[ ]” enclosing text in normal font indicate optional and/or alternative wording. The “[ ]” must not appear in the Tender Documents.

Square brackets “[]” enclosing italicised text are intended to assist the editor of, and must not appear in, the Tender Documents.

Round brackets “( )” enclosing text in normal font indicate text, which is to be included (within round brackets) in the Tender Documents.

Round italicised brackets “( )” enclosing italicised text are to be included (within the brackets) in the Tender Documents as notes for the tenderers.

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Letter of Invitation [Letterhead of the Employer] Dear Sir/Madam Subject: Tendering of [insert Design-Build/Turnkey-EPC/Construction]

contract for [insert type of works/supply and installation of plant] for the Project [insert Name of Project, Country]

The Government of [insert Country] has applied to Danida for Danish Tied Mixed Credits towards the cost of the [Project], has received Danida’s approval of this project, and intends to apply this credit for payments under the Contract.

[We are pleased inform you that your firm have been selected as prospective tenderer.

For your information, the following prospective tenderers have been invited to tender for this contract:

- name of prospective tenderer

- name of prospective tenderer

- name of prospective tenderer]

[Or: In response of your request we forward you the Invitation to Tender] for the abovementioned contract (the Contract).]

[Insert name and type of entity of the Employer] will be “the Employer” responsible for the tendering, contracting and implementation of the contract, and invites tenders from eligible contractors for the Contract.

We have appointed as “the Engineer” [if using the FIDIC Conditions of Contract for Plant and Design-Build, the Engineer may be an independent person (firm of consultants) or e.g. the Employer’s Project Manager] [name and address, and phone, fax, and e-mail]. A full set of the Tender Documents may be purchased from the Employer at the address above against a non-refundable fee of [state an amount corresponding to the cost of copying and the currency] or equivalent in a freely convertible currency.

We now invite you to submit a tender in accordance with the Instructions to Tenderers, which form the first part of the Tender Documents. In the Instructions, the following Clauses should be noted:

(a) Clause 2 refers to the eligibility of the tenderer, where the criteria are (i) having been pre-qualified or being post-qualified, as the case may be, and (ii) and being a Danish firm as main contractor or in the event of an association as a joint venture with a Danish contractor as leader of the joint venture.

(b) Clause 3 refers to requests for clarification being sent to the Engineer [if an EPC/Turnkey Contract: the Employer’s Representative] who is named above.

(c) Clause 4 refers to a joint site visit by representatives of the tenderers, and we recommend that you send either one or two representatives to the sites for this visit. It will commence at [place and time] with the following program [details of program and place for the visit and a joint meeting where questions and clarifications given are summarised, recorded

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and issued].

(d) Clause 5 refers to alternative offers or tenders, which [shall OR: shall not] be permitted.

(e) Clause 6 refers to the submission of your tender, which must be received at the address stated in the Clause not later than 10h00 on the tender submission date [insert date minimum 8-12 weeks after issue of the Invitation and the Tender Documents].

(f) Clause 7 refers to the opening of tenders in the presence of representatives of the tenderers, which will commence at 10h05 on the tender submission date stated above.

Please confirm, within two weeks of receiving this letter, that you have received all the Tender Documents, and also advise us whether or not you will submit a tender in accordance with the Instructions to Tenderers.

Signed by

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Instructions to Tenderers

1 Introduction

1.1 These Instructions to Tenderers (“these Instructions”) relate to a Letter of Invitation (“the Invitation”), in which a prospective tenderer is invited to submit a tender. The Invitation, which (in the case of any discrepancy) takes precedence over these instructions, specifies:

(a) the firm or joint venture, which thus invited to submit a tender,

(b) the Engineer, to whom requests for clarification may be sent as described in Clause 3 of these Instructions,

(c) details of how to participate in the site visit by tenderers (or how to obtain such details), if such a visit is being arranged under Clause 4 of these Instructions,

(d) the time by which tenders are to be submitted in accordance with Clause 6 of these Instructions (the “tender submission date”), and

(e) the time when tenders are to be opened as described in Clause 7 of these Instructions.

1.2 The Tender Documents, as issued to each tenderer in accordance with the Invitation, comprise:

(a) Volume I containing these Instructions,

- the Letter of Tender and the Appendix to Tender,

- the Schedules, and

- the Forms of Tender Guarantee, Advance Payment Guarantee, Performance Guarantee,

(b) Volume II containing

- the Conditions of Contract comprising the “General Conditions”, which form part of the “Conditions of Contract for Plant and Design-Build” First Edition 1999 published by FIDIC, and the “Particular Conditions”, which include specific information, amendments and additions to such General Conditions, and

- the Employer’s Requirements including outline drawings.

1.3 The following documents have also been issued to each tenderer for information:

[-

-]

These documents and the Instructions to Tenderers shall not form part of the tenderer’s offer, nor part of the defined words “Tender” or “Contract”. The Instructions prescribe the procedures to be followed until the Employer either enters into a Contract with the tenderer or advises him that the Employer does not intend to do so.

1.4 Words and expressions defined in Sub-Clause 1.1 of the Conditions of Contract shall have the same meanings where used in these Instructions.

1.5 The tenderer shall bear all costs incurred in the preparation and submission of the tender, including visits and other actions mentioned or implied in these Instructions.

1.6 The Employer will not be responsible or liable for such costs, regardless of the conduct or outcome of the tendering process. The Employer reserves the right to accept or reject any tender, or to annul the tendering process and reject all tenders, without incurring liability to any

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tenderer and without being obliged to inform any tenderer of the reasons for the Employer’s action.

2 Eligibility of the tenderer

2.1 The Invitation names the firm or joint venture (the prospective tenderer), which the Employer has pre-qualified to submit a tender. Nothing in these Instructions entitles any other entity or joint venture to submit a tender.

[If post-qualification is applied, the text of this Sub-Clause shall be changed to:] [Each tenderer shall with its tender, in order to be considered for eligibility, submit the Information Forms (1)-(8) as attached to these instructions. In the case of a joint venture, consortium or other unincorporated grouping of two or more legal persons, the information shall be submitted in respect of each of the persons. Information shall include the information listed under (i) through (vii) below and he tenderer meet the minimum qualification requirements under (ii) through (vii) below:

(i) General Information about the tenderer including copies of original documents defining constitution and/or legal status, place of registration and principal place of business.

(ii) General Experience, where the tenderer shall provide evidence that

(a) he has been actively engaged in works and/or supply of goods in the role of main contractor, leader of joint venture or sub-contractor as relevant for the past [insert number of years, usually not less than three] years,

(b) his average annual turnover in similar works and/or supply of goods of minimum [insert currency and amount, usually not less than twice the estimated annual turnover for the Contract].

(iii) Particular Experience, where the tenderer shall provide evidence that

(a) he has successfully completed [insert number of contracts, usually one to three] contracts of similar works and/or supply of goods and of comparable size and complexity during the past five years,

(b) he has successfully completed [usually at least one] contract(s) of similar works and/or supply of goods of comparable size and complexity in [insert geographical region] during the past five years.

(iv) Financial Capabilities, where the tenderer shall provide evidence that

(a) he has access to or has available liquid assets, lines of credit or other financial means (independent of any advance payment on the Contract) of an amount of [insert currency and amount required to finance outlays on the Contract until receiving payments, usually 25-50% of the annual turnover of the Contract,

(b) his operations are long-term profitability and his financial situation is sound, demonstrated through as a minimum, extracts of audited profit and loss account and balance sheets for the past five years or similar statements.

(v) Personnel Capabilities, where the tenderer shall provide evidence that

(a) he has management and overall personnel resources within administration, financial, technical, quality assurance etc. required for execution of a contract of comparable size and complexity,

(b) he has available key staff for contract management, site management, and specialist positions required for the execution of the Contract [list key staff as relevant - if the key staff proposed for the execution of the Contract will be included in the tender

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evaluation, they should not also be included in the evaluation of Personnel Capabilities here and this Sub-paragraph (b) shall be deleted].

(vi) Equipment Capabilities adequate for undertaking the Contract, with evidence that he owns, or have assured access (through hire, lease, purchase agreement, other commercial means, or approved subcontracting) to the following key items of equipment, in full working order and must demonstrate that, based on known commitments, they will be available for timely use in the proposed contract, [list items and numbers].

(vii) The tenderer shall provide accurate information on the related Application Form about any litigation or arbitration resulting from contracts completed or ongoing under its execution over the last five years. A consistent history of awards against the tenderer or any member of the joint venture may result in the tenderer not being post-qualified.

[Amend the minimum requirements as appropriate]] 2.2 The tenderer shall notify the Employer, as soon as practicable, of any change in the information submitted for the purpose of the pre- or post-qualification. Any significant change in such information shall be deemed to invalidate the previous pre-qualification, but the firm or joint venture may request the Employer’s permission to reapply for prequalification. If (at his sole discretion) the Employer grants such permission, the tenderer’s application for prequalification must be received by the Employer not less than 28 days before the Tender submission date specified in Clause 6 of these Instructions.

2.3 Works and supply and installation of plant financed under Danish Tied Mixed Credit shall be contracted as one contract with a Danish contractor as main contractor, or in the event of an association as a joint venture with a Danish contractor as leader of the joint venture.

Any local or third country part to be financed under Danish Tied Mixed Credits shall be included in the tender whether in the main contract or in sub-contracts, with the Danish main contractor being responsible towards the Employer.

[The Danish contents of works, supply of goods and provision of services are at least 25% of the quoted contract amount, calculated on the basis of the guaranteed risk sum declared by the Contractor. For details please refer to the “Eksport Kredit Fonden, EKF” (www.ekf.dk). OR: There is no such requirement to the Danish contents.] [Use the former for contracts to be financed under Danish Tied Mixed Credits to China and the latter for contracts financed under Danish Tied Mixed Credits to other developing countries.] 2.4 Invitation to Tender is open to eligible Danish firms or joint ventures conditioned by the following,

(a) The Danish firm shall be main contractor or in the event of a joint venture, leader.


(c) If a joint venture, the Danish leader shall (together with its subcontractors) be responsible for undertaking a minimum of 60% of the contract value. Proof hereof shall be provided in the form of pre-contract agreements attached to the tender and later in the form of a joint venture agreement or subcontracts attached to the contract. Verification may be required by Danida.

Government-owned enterprises in the Employer’s country may participate only if they can establish that they (i) are legally and financially autonomous, and (ii) operate under commercial law. No dependent agency of the Employer may supply goods or provide works or services to a project financed by Danish Mixed Credits.

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2.5 In these Instructions, the expression “joint venture” means any of the groupings described in Sub-Clause 1.14 of the Conditions of Contract. In order that such a joint venture of two or more legal persons is to be acceptable as eligible:

(a) these persons shall have nominated a leader with authority to bind the joint venture and each of these persons, and this leader shall be authorised to incur liabilities and receive instructions for and on behalf of any and all these persons,

(b) evidence of this authorisation shall be submitted with the tender in the form of a power of attorney signed by legally authorised signatories of all these persons,

(c) the Letter of Tender, and (if it is accepted) the Contract Agreement, shall be signed so as to be legally binding on each of these persons, and

(d) a copy of the agreement entered into by these persons shall be submitted with the tender. This agreement shall state (i) each such person’s percentage participation in the joint venture, and (ii) that these persons shall be jointly and severally liable to the Employer for the performance of the Contract.

2.6 No such person or sole tenderer shall participate in the preparation of another tenderer’s tender for the same Contract. If any entity is found to have participated in two or more tenders, other than alternative tenders from the same tenderer, all such tenders will be rejected.

2.7 However, any entity may be proposed as a prospective subcontractor by more than one tenderer in addition to being either a sole tenderer or a participant in one joint venture tenderer.

2.8 A tenderer (if a joint venture any of its members) who may be affected by a potential conflict of interest shall attached to his tender notify the Employer of the details of this conflict of interest.

3 The Tender Documents

3.1 The tender shall be responsive to the complete set of Tender Documents, which comprise the documents listed in Clause 1 above and any Addenda to Tender Documents, which may be issued as described in this Clause 3. The tenderer shall scrutinize each document immediately upon receiving it and shall promptly give notice, to the party who issued the document, of any pages, which appear to be missing.

3.2 The tenderer must carefully examine all Tender Documents. Failure to comply with these Instructions or with any other tendering requirements will be at the tenderer’s risk,

3.3 If the tenderer requires any clarification of the Tender Documents, he may give notice to the Engineer. The notice shall be written (which includes by facsimile transmission) in the language used in the Invitation, and shall be sent to the Engineer’s address stated in the Invitation as soon as practicable.

3.4 The Engineer shall respond to the notice by issuing (i) the text of the question or request for clarification and (ii) the Employer’s clarification. This response shall be in writing and shall give no indication of the identity of the tenderer who requested clarification. These requests for clarification and responses shall be sent to all prospective tenderers who received the Tender Documents, but shall not constitute amendments to the Tender Documents. However, if a notice is received less than 28 days before the tender submission date, there may be no response.

3.5 If amendments are to be made to the Tender Documents, arising from a notice or otherwise, the Engineer shall issue an Addendum to Tender Documents on behalf of the Employer. Each Addendum to Tender Documents shall be sent to all prospective tenderers who received the Tender Documents, and shall be binding upon them. The tenderer shall promptly acknowledge receipt of each Addendum to Tender Documents by written notice to the Engineer, and shall also enter its reference number in the first sentence of the Letter of Tender.

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3.6 At any time, the Employer may similarly issue an Addendum to Tender Documents, which amends the tender submission date. In this event, all rights and obligations of the Employer and the tenderers previously related to the original date shall thereafter be subject to the amended date.

4 Site Visit

4.1 The tenderer is advised to visit and examine the Site, its surroundings and other parts of the Country, and must obtain for himself on his own responsibility all information, which may be necessary for preparing the tender and entering into a Contract.

4.2 The tenderer and any of his personnel or agents will be granted conditional permission to enter upon the Site. The permission shall be deemed to have been based upon the tenderer, his personnel and agents indemnifying the Employer and his personnel and agents from and against all liability and upon the tenderer being responsible for personal injury (whether fatal or otherwise), loss of or damage to property and any other loss, damage, costs and expenses (however caused), which would not have arisen other than due to the exercise of such permission.

4.3 If a joint site visit will be arranged for all tenderers, details are given in the Invitation.

4.4 Such a joint visit is intended to supplement, and not to replace, the individual inspections carried out by each tenderer. The Employer accepts no responsibility for providing any indication of relevant aspects, or access to appropriate areas, which a competent tenderer may consider necessary for the preparation of a Tender.

4.5 The Employer shall not be bound by any oral representations, which may be made during a joint site visit, whether by the Engineer’s personnel or by others, and whether during a formal meeting or otherwise. In order to minimize the possibility of misunderstanding, tenderers should present any requests for clarification in writing. In accordance with Clause 3 of these Instructions, any record of the formal meeting, requests, clarifications and/or Addendum to Tender Documents shall be sent to all prospective tenderers who received the Tender Documents.

5 Preparation of the tender

5.1 The tender and all communications between the tenderer and the Employer or the Engineer shall be typed or written in indelible ink in the language used in the Invitation. Supporting documentation submitted by the tenderer may be in another language if he also submits an appropriate translation of all its relevant passages into this ruling language.

5.2 The tender to be submitted by each tenderer shall comprise the Letter of Tender, the completed Appendix to Tender, the completed Schedules, and a Proposal prepared in accordance with this Clause 5.

5.3 The Tender Documents issued to the tenderer, including any amendments instructed in an Addendum to Tender Documents, shall be used without further amendment.

[5.4 The tenderer shall submit, with his tender, a Tender Guarantee11 in the form as given in Attachment C to these Instructions. The Tender Guarantee shall be of an amount of [insert a fixed amount in either EUR or USD, e.g. EUR 25,000] issued by an entity acceptable to the Employer, and shall be valid for not less than 30 days after the date on which the validity of the tender expires. The Employer will return the Tender Guarantee upon the occurrence of the first of the following events:

(a) the Employer receives the Performance Guarantee from the successful tenderer,

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(b) the Employer abandons his intention to appoint a Contractor, or

(c) the validity of all Tender Guarantees for the contract expires.]

[Tender Guarantees are normally not used in tendering Contracts financed by Danish Mixed Credits and if not this Sub-clause shall be N/A]. 5.5 The tenderer shall complete each schedule as appropriate to the particular schedule, and submit a tender for the whole of the Works in accordance with the Tender Documents. A tender, which excludes part of the Works, may be rejected as unresponsive.

5.6 The tenderer’s Proposal, which must form part of the tender, shall include:

(a) detailed description of the proposed Works,

(b) drawings, including plans, elevations and typical cross-sections, these may be Al size and/or bound A3 volumes, at 1:1000 to 1:100 scales as appropriate,

(c) commentary on the Employer’s Requirements, detailing how the layout and other critical requirements will be achieved,

(d) manufacturers’ brochures and/or other details of the main items of Plant including spares,

(e) details of any exceptions to the statements in the Letter of Tender, which otherwise state that the Employer’s Requirements contain no errors and that the Works will conform therewith.

5.7 The tenderer shall also submit the following supplementary information accompanying, but not forming part of, his tender:

(a) the information listed in Clause 2 of these Instructions, if applicable,

(b) name and address of the bank, which will provide the Performance Guarantee and the Advance Payment Guarantee, and a letter from such entity acknowledging having received the forms of guarantees and undertaking to provide these guarantee documents in accordance with the exact wording as given in Attachment A and B to these Instructions (if the entity prefers to make minor changes, they must be specified exactly),

(c) name and address of the insurers and their principal terms for the insurances required by Clause 18 of the Conditions of Contract, including proposed deductibles and exclusions,

A tender, which is not accompanied by this information, may be rejected as unresponsive.

5.8 The completed tender shall not have any alterations or erasures, except any which may be specified in an Addendum to Tender Documents issued under Clause 3 of these Instructions. However, if alterations are necessary to correct errors made by the tenderer, these corrections shall be endorsed with the signature of the person signing the Letter of Tender.

5.9 Only one tender may be submitted by each tenderer, except for any alternative offers. In addition to a compliant tender, the tenderer may offer technical or other alternatives to the requirements of the Tender Documents, which may include reasonable deviations or other proposals. Each alternative tender shall include all information necessary for its complete evaluation by the Employer, including any relevant calculations, specifications, construction methods, timing implications, breakdowns of prices, and other relevant details.

The Employer reserves the right to reject alternative offers.

6 Submission of the Tender

6.1 The tenderer shall prepare one original set and three photocopy sets of the documents comprising the tender and supplementary information, as described in Clause 5 of these

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Instructions. Each such set shall be submitted in an inner envelope within an outer envelope, with each document and each envelope being clearly marked “ORIGINAL” or “COPY” as appropriate. If there is any discrepancy between them, the ORIGINAL shall prevail.

6.2 The original and copies of the tender shall be signed by a person or persons duly authorised to bind the tenderer. Proof of authorisation, in the form of a written power of attorney, shall be annexed to the Letter of Tender. All pages of the Appendix to Tender and Schedules where entries or amendments have been made shall be initialled by the person(s) signing the Letter of Tender.

6.3 The inner and outer envelopes shall be addressed to:

[Name and address of the Employer] and shall bear the following identification:

Tender for [insert Design-Build/Turnkey-EPC/Construction] contract for [insert type of works/supply and installation of plant] for the Project [insert Name of Project, Country].

6.4 The inner envelopes shall indicate the name and address of the tenderer to enable the tender to be returned unopened if it is declared “late”. The outer envelopes shall give no indication of the tenderer.

6.5 If a tender is misplaced or opened prematurely because an envelope was not sealed and marked as instructed above, the Employer shall not be responsible and the tender may be rejected.

6.6 The original and copies of the tender must be delivered to the address specified above no later than the time, on the tender submission date, stated in the Invitation. Tenders received by the Employer thereafter will be returned unopened.

6.7 The tenderer may modify or withdraw his tender after submitting it, if the modification or notice of withdrawal is received in writing before such prescribed time for submission of Tenders but not thereafter. The tenderer’s modification or notice of withdrawal shall be prepared, sealed, marked and delivered in accordance with the provisions of this Clause 6, with the inner envelopes additionally marked “MODIFICATION” or “WITHDRAWAL”, as appropriate. In particular, the modification or notice of withdrawal shall be signed by a person or persons duly authorised to bind the tenderer, and proof of authorisation shall be annexed.

6.8 A tender submitted other than as described in this Clause 6 may be rejected by the Employer and returned to the tenderer.

6.9 The tender shall remain valid and open for acceptance for the period of 120 days from the tender submission date. The tenderer shall calculate the date on which validity expires and insert this expiry date in the Letter of Tender.

In exceptional cases and prior to this expiry date, the Employer may by written notice request the tenderer to extend the validity period until a specified date. The tenderer may refuse such request, without forfeiting its tender guarantee. A tenderer accepting such request will not be required or permitted to modify its tender other than as stated in this Sub-paragraph.

In the case of fixed price contracts (not subject to price adjustment), if the tender validity period is extended beyond 30 days, the amount payable to the tenderer selected for award shall be increased by applying the factors specified in the request for extension for the period of delay beyond the expiry of the initial tender validity up to the time of notification of award. Tender evaluation will be based on the tender prices without considering such increase.

The factors to be applied and mentioned in the request for extension should be:

(a) A foreign price increase factor, with a value corresponding to the expected pro rata increase in international prices of works and goods of the estimated foreign currency part

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of the contract.

(b) A local price increase factor, with a value corresponding to the pro rata increase in local prices of works and goods of the estimated local currency part of the contract.

(c) An exchange rate factor, with a value corresponding to the expected change in the currency (currencies) of the contract against the EURO.

7 Tender Opening

7.1 Tenders and other submissions, which are in accordance with Clause 6 of these Instructions, will be opened at the date and time stated in the Invitation in the presence of tenderers’ representatives who choose to attend at the address for delivery of Tenders specified in Clause 6.

7.2 Tenderers’ representatives at this opening shall sign an attendance register.

7.3 Tenders for which the Employer has received a valid notice of withdrawal in accordance with Clause 6 of these Instructions shall not be opened,

7 4 The Employer will examine Tenders to determine whether they appear to be complete, properly signed, and generally in order. For each Tender, the Employer or the Engineer will announce the name of the tenderer, the sum offered in the Letter of Tender, and such other details as the Employer may consider appropriate.

7.5 After this tender opening, information relating to the tenders, the processes of examination, clarification, evaluation and comparison of tenders and recommendation for the award of a contract shall not be disclosed to the tenderers, or any other person not officially concerned with such processes.

Any effort by a tenderer to disclose or seek such information or to influence the Employer or the Engineer or Independent Consultant assisting in these processes may result in the rejection of the tenderer’s tender.

8 Tender Evaluation

8.1 Prior to the detailed evaluation of Tenders, the Employer will determine whether each tender is substantially responsive to the requirements of the Tender Documents.

For the purpose of these processes, a substantially responsive tender is one, which conforms to all the terms, conditions and requirements of the Tender Documents without material deviation or reservation.

8.2 A material deviation or reservation is one, which affects in any substantial way the scope, quality, or performance of the Works, or which limits in any substantial way (inconsistent with the Tender Documents) the Employer’s rights or the Contractor’s obligations under the Contract, and the rectification of which deviation or reservation would affect unfairly the competitive position of other tenderers presenting substantially responsive tenders.

8.3 If a tender is not substantially responsive to the requirements of the Tender Documents, it will be rejected by the Employer. The tender shall not be made responsive by the tenderer correcting or withdrawing the non-conforming deviation or reservation.

8.4 The Employer will only evaluate and compare the tenders, which have been determined to be substantially responsive to the requirements of the Tender Documents. Responsive tenders will first be checked by the Employer for any arithmetic errors in computation and summation, and any errors will be corrected as follows:

(a) The amount entered in the Letter of Tender (as announced when tenders were opened) may be considered acceptable as the Contract Amount without any of the corrections and

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adjustments described in these subparagraphs. If there is any discrepancy between amounts in figures and in words, the amount in words will take precedence.

(b) If there is any discrepancy between this amount and the equivalent sum computed on the basis of the schedules, the Employer may make corrections and/or adjustments (applying the principles described in these sub-paragraphs) and give notice to the tenderer, specifying each error, correction and adjustment. If the tenderer does not accept these notified corrections and adjustments, his tender may be rejected.

(c) If there is a substantial discrepancy between a stated amount and the correct amount calculated by multiplying the stated unit rate by the quantity, and the rate seems to have been stated in error (inconsistent with the tenderer’s likely intentions), the stated unit rate shall be amended and the stated amount will be binding.

(d) If there is any discrepancy between a stated amount and the correct amount calculated by multiplying the stated unit rate by the quantity, and either the discrepancy is not substantial or it is reasonable to assume that the stated rate is consistent with the tenderer’s intentions, the stated unit rate will be binding and the stated amount shall be amended.

8.5 For the purpose of evaluating Tenders, the Employer will determine for each tender the Evaluated Tender Amount as follows:

(a) making any correction for errors as described above,

(b) making an appropriate adjustment for any acceptable variations, deviations, discounts or other alternative offers not reflected in the submitted amount or these corrections, [and

(c) making an allowance for any acceptable varied times for completion offered in alternative tenders, the allowance being calculated at the same rate as the rate for delay damages for the Works, which is stated in the Appendix to Tender.].

8.6 The evaluation of the tenders shall be based upon the principles outlined in the evaluation criteria annexed to these Instructions. Unless specifically stated, no criterion will take precedence over any other criteria, and tender evaluation shall be based on an overall consideration.

8.7 To assist in the examination, evaluation and comparison of tenders, the Employer may ask any tenderer for clarification of his tender, including breakdowns of unit rates and lump sum prices. The request for clarification and the response shall be in writing. No change in the price or substance of the tender shall be sought, offered or permitted except as required to confirm the correction of arithmetic errors discovered by the Employer during the evaluation of the tenders.

9 Award of the Contract

9.1 The Employer intends (i) to award the Contract to the tenderer who [meets the post-qualification requirements as stated in Sub-Clause 2.1] [OR: meets the pre-qualification requirements] and thus appears to have the capability and resources to carry out the Contract effectively, whose tender has been determined to be responsive to the Tender Documents and who has offered (all taken into consideration) the economically most advantageous tender, or (ii) to reject compliant tenders and accept an alternative Tender. The Employer reserves the right to reject any or all tenders.

9.2 The successful tenderer may be invited to participate in meeting(s) with the Employer in order to finalise the Contract, and the Employer may then issue a Memorandum of Understanding recording the outcome of their joint discussions, which may include proposed arrangements for the appointment of the DAB under Clause 20 of the Conditions of Contract. This Memorandum of Understanding will constitute the agreed basis upon which a contract could be concluded, and/or may include clarification of any alternative proposals, which the

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tenderer may have submitted. The Memorandum of Understanding (i) shall be binding on the tenderer as an acceptable clarification or amendment of his tender until its validity expires, (ii) shall be wholly subject to a subsequent contract agreement, and (iii) shall not bind the Employer nor commit him to entering into any contract under any terms.

9.3 After [receiving the Employer’s Letter of Acceptance][OR after having signed the Contract], the successful tenderer shall submit a Performance Guarantee in accordance with Conditions of Contract Sub-Clause 4.2, and an Advance Payment Guarantee in accordance with Conditions of Contract Sub-Clause 14.2.

9.4 After receiving the Performance Guarantee from the successful tenderer, the Employer will notify the other tenderers that their tenders have been unsuccessful.

10 Corruption, Facilitation, Fraud, Collusion, Coerciveness

Danida upholds zero tolerance towards corrupt, facilitating, fraudulent, collusive and coercive practises and requires the same from Employers, as well as Tenderers, Contractors, Sub-Contractors, and Consultants under contracts supported by Danish Mixed Credits. In pursuit of this policy Danida

(a) defines, for the purposes of this provision, the terms set forth below as follows:

(i) “corrupt practices” means the offering, giving, receiving, or soliciting, directly or indirectly, of any thing of value to influence the action of a public official in the procurement process or in contract execution,

(ii) “facilitating practices” is a form of corruption offering payments in order to expedite or facilitate the performance by a public official of a routine governmental action and not to obtain or retain business or any other improper advantage.

(iii) “fraudulent practices” means a misrepresentation or omission of facts in order to influence a procurement process or the execution of a contract,

(iv) “collusive practices” means a scheme or arrangement between two or more bidders, with or without the knowledge of the Employer, designed to establish bid prices at artificial, non-competitive levels,

(v) “coercive practices” means harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract.

(b) will reject a proposal for award if it determines that the preferred Tenderer, directly or through an agent, engaged in corrupt, facilitating, fraudulent, collusive or coercive practices in competing for the Contract in question,

(c) will cancel the support for the project if it determines at any time that representatives of the Employer engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the procurement or the execution of that contract, without the Employer having taken timely and appropriate action satisfactory to Danida to remedy the situation,

(d) will sanction a firm or individual, including declaring them ineligible, either indefinitely or for a stated period of time, to be awarded a contract supported by Danish Mixed Credits, if it at any time determines that they have, directly or through an agent, engaged in corrupt, facilitating fraudulent, collusive or coercive practices in competing for, or in executing, a contract supported by Danish Mixed Credits.

The Employer may, if it determines tenderers/contractors engaged in corrupt, facilitating, fraudulent, collusive or coercive practices during the tender process or the execution of the

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contract, exclude such tenderers/contractors from participating or cancel the Tender or Contract as appropriate, and take such additional actions (civil and/or criminal) as the Employer finds appropriate.

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Attachment A

Forms of Qualification Information ((only to be used if post-qualification is applied - the forms are the same as attached to Annex B)

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Attachment B

Form: Performance Bank Guarantee (Demand Guarantee) Brief description of Contract: .................................................................................................................

Name and address of Beneficiary ...........................................................................................................

(whom the Contract defines as the Employer)

Whereas [name and address of Contractor] (hereinafter called “the Contractor”) has undertaken, in pursuance of Contract No. [number] dated [date] to execute [name of Contract and brief description of Works] (hereinafter called “the Contract”);

And whereas it has been stipulated by you in the said Contract that the Contractor shall furnish you with a Bank Guarantee by a recognised bank for the sum specified therein as security for compliance with his obligations in accordance with the Contract;

And whereas we have agreed to give the Contractor such a Bank Guarantee;

Now therefore we hereby affirm that we are the Guarantor and responsible to you, on behalf of the Contractor, up to a total of [amount of Guarantee corresponding to 10% of the Contract Price] [amount in words], such sum being payable in the types and proportions of currencies in which the Contract Price is payable, and we undertake to pay you, upon your first written demand and without cavil or argument, any sum or sums within the limits of [amount of Guarantee] as aforesaid without your needing to prove or to show grounds or reasons for your demand for the sum specified therein.

We hereby waive the necessity of your demanding the said debt from the Contractor before presenting us with the demand.

We further agree that no change or addition to or other modification of the terms of the Contract or of the Works to be performed there under or of any of the Contract documents, which may be made between you and the Contractor shall in any way release us from any liability under this Guarantee, and we hereby waive notice of any such change, addition, or modification.

This guarantee shall be valid until the day of issue of the Performance Certificate for the Works, or if divided into Sections, the last Section of the Works.

This guarantee shall expire on [insert date][such date shall be no earlier than 6 months from the stipulated date of issue of the Performance Certificate for the Works, or if the Works are divided into Sections, the Section to be completed last], even if the guarantee is not returned.

Any amount payable to [name of Employer] under this guarantee shall be credited an escrow account with the Ministry of Foreign Affairs of Denmark as beneficiary. Any amount from this escrow account may not be released to [name of Employer] or any third person without prior written consent from the Ministry of Foreign Affairs of Denmark.

This guarantee shall be governed by the laws of [insert country], and shall be subject to the Uniform Rules of Demand Guarantees, ICC Publication No. 458, except that subparagraph (ii) of Sub-article 20(a) shall be excluded.

Signature and seal of the Guarantor: ..........................................................................................

Name of Bank: ...............................................................................................................................

Address: ..........................................................................................................................................

Date: ................................................................................................................................................

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Attachment C

Form: Bank Guarantee for Advance Payment (Demand Guarantee)

Brief description of Contract: .................................................................................................................

Name and address of Beneficiary ...........................................................................................................

(whom the Contract defines as the Employer)

In accordance with the provisions of the Conditions of Contract, Clause [insert Clause No.] (“Advance Payment”) of the above-mentioned Contract, [name and address of Contractor] (hereinafter called “the Contractor”) shall deposit with [name of Employer] a Bank Guarantee to guarantee his proper and faithful performance under the said Clause of the Contract in an amount of [amount of Guarantee] [amount in words]. We, the [Bank or Financial Institution], as instructed by the Contractor, agree unconditionally and irrevocably to guarantee as primary obligator and not as Surety merely, the payment to [name of Employer] on his first demand without whatsoever right of objection on our part and without his first claim to the Contractor, in the amount not exceeding [amount of guarantee] [amount in words]. We further agree that no change or addition to or other modification of the terms of the Contract or of Works to be performed there under or of any of the Contract documents, which may be made between [name of Employer] and the Contractor, shall in any way release us from any liability under this Guarantee, and we hereby waive notice of any such change, addition, or modification.

This guarantee shall remain valid and in effect from the date of the advance payment under the Contract until the date of issue of a verified Taking-over Certificate for the Works, or if the Works are sub-divided into Sections, the Section completed last.

[The guaranteed amount may be reduced corresponding to the proportion of the total of all certified interim payments (excluding the advance payment)].

Any demand must be received by us on or before [date] [such date shall be not less than 6 months from the stipulated date of the issue of the Taking-over Certificate for the Works, or if the Works are sub-divided into Sections, the Section to be completed last], even if this guarantee is not returned.

We have been informed that the Beneficiary may require the Contractor to extend this guarantee if the advance payment has not repaid within 30 days prior to such expiry date. We undertake to pay you such guaranteed amount upon receipt by us, within such period of 30 days, of your demand in writing and your written statement that the advance payment has not been repaid and the that this guarantee has not been extended. . This guarantee shall be governed the laws of [insert country], and shall be subject to the Uniform Rules of Demand Guarantees, ICC Publication No. 458, except that subparagraph (ii) of Sub-article 20(a) shall be excluded.

Signature and seal: .....................................................................................................................................

Name of Bank/Financial Institution: ....................................................................................................

Address:.......................................................................................................................................................

Date:….........................................................................................................................................................

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Attachment D

Form: Tender Security (Demand Guarantee)

Brief description of Contract ...............................................................................................................

Name and address of Beneficiary ........................................................................................................

(whom the Tender Documents define as the Employer).

We have been informed that .................................... (hereinafter called the “Principal”) is submitting an offer for such Contract in response to your invitation, and that the conditions of your invitation (the “conditions of invitation”, which are set out in a document entitled Instructions to Tenderers) require his offer to be supported by a tender security. At the request of the Principal, we (name of bank) .................................................... hereby irrevocably undertake to pay you, the Beneficiary/Employer, any sum or sums not exceeding in total the amount of ............................................(say: ..................................................) upon receipt by us of your demand in writing and your written statement (in the demand) stating that:

(a) the Principal has, without your agreement, withdrawn his offer after the latest time specified for its submission and before the expiry of its period of validity, or

(b) the Principal has refused to accept the correction of errors in his offer in accordance with such conditions of invitation, or

(c) you awarded the Contract to the Principal and he has failed to enter into Contract within three months of receiving the Letter of Acceptance, or

(d) you awarded the Contract to the Principal and he has failed to deliver the Performance Guarantee as specified and within three months of receiving the Letter of Acceptance.

Any demand for payment must contain your signature(s), which must be authenticated by your bankers or by a notary public. The authenticated demand and statement must be received by us at this office on or before (the date 35 days after the expiry of the validity of the Letter of Tender), ........................ when this guarantee shall expire and shall be returned to us. This guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 458, except as stated above. Date ................................................ Signature (s) ...........................................................

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Attachment E

Evaluation Criteria

The contractor for works and goods financed under Danish Tied Mixed Credits shall be selected through competitive tendering among Danish firms or joint ventures.

Pre-qualification shall be used to select eligible and qualified entities for invitation to tender.

A sufficient number of tenderers shall be invited to ensure that at least two eligible tenders are obtained. If the number of tenders is less than two, re-tendering shall take place.

The tender documents shall specify any technical factors, which in addition to price, will be taken into account in evaluating tenders, and how these will be capitalised or, if this is not possible, quantified and weighted and how the final evaluation will be arrived at.

Below is shown, two examples of extracts from tender evaluation reports

A. Extracts from an evaluation report in connection with a contract involving supply and installation of electrical and mechanical equipment for a number of grain silos in a developing country

B Extracts from an evaluation report in connection with a contract for strengthening, resurfacing and improvement of a section of a road in a developing country.

Please note that the criteria used in pre-qualification or post-qualification should not also be used in the evaluation of the tenders (as e.g. General or Particular Experience, Experience from the Geographic Region, Qualifications and Experience of Personnel proposed for the assignment).

The Employer should, therefore, carefully consider which criteria to use for pre- or post-qualification and which to use for tender evaluation.

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Example A Extract from an evaluation report in connection with a contract involving supply and installation of plant The model, factors and weight used for the evaluation, as shown below, were established by the Tender Evaluation Committee prior to the opening of the tenders.

Each factor was evaluated using the following rating:

Excellent: 4 Above average: 3 Average: 2 Below average: 1 Not acceptable: 0

Evaluation Model

Note Factors Weight Rating (0-4)

Weight x Rating

1 Suitability of proposed Work Programme 5%

2 Quality of design and execution of plant, simplicity of operation, serviceability and lifetime of plant

10%

3 Proposed Program for Training 5%

4 Proposed After Sales Service 5%

5 Relevant Qualifications and Experience of Key Staff 5%

Subtotal, technical factors 30%

6 Evaluated Tender Price 60%

7 Evaluated Tender Price for Spare Parts for a specified selection of parts/ consumables

10%

Subtotal, price factors 70%

Total 100%

Note 1: The Suitability of the Proposed Work Programme compared to the outline program or minimum requirements as described in the Requirements/Specifications issued by the Employer, giving a rating of 2 for the tender with a work plan in conformance to these, 3 for the tender with a work plan better suited, and 4 for the tender with a work plan exceeding the expectations.

Note 2: Quality of design and execution of plant, simplicity of operation, serviceability and lifetime of plant.

Factor sub-divided, weighted and rated as follows:

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Technology (20%): State of the art (4) Advanced (3) Ordinary (2) Yesterdays (1) Not acceptable (0)

Design and execution of plant (20%): Excellent (4) Above average (3) Average international standard (2) Below average (1) Not acceptable (0)

Operation (30%): Automatic, minimum manpower (4)

Simple, little man power (3) Average (2) Below average (1) Not acceptable (0)

Serviceability (10%): Little or no service required (4) Above average (3) Average (2) Below average (1) Not acceptable (0)

Lifetime (20%): Extraordinary (4) Above average (3) Average (2) Below average (1) Not acceptable (0)

Note 3: The Proposed Programme for Training including relevant management, trainers and staff for operation and service, including all manuals, training programmes and materials making the organisation self-sustainable in respect of future training (4).

Proposed program, including relevant management, trainers and staff for operation and service, all manuals, training programmes and materials, and a program of training support for a 3-5 years period (3).

Proposed program including all relevant staff for operation and service and all manuals (2).

Proposed programme including selected staff for operation and service and manuals (1).

No training program included (0).

Note 4: The Proposed After Sales Service: Excellent (4), above the minimum acceptable (3), minimum acceptable (2), below minimum (1), none (0)

Note 5: Relevant Qualifications and Experience of proposed Key Staff. Factor sub-divided, weighted and rated as follows:

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Qualifications (relevant education and degree) and experience (10 years with similar contracts and in similar positions):

Contract Manager (40%) Resident Engineer (30%) Mechanical Engineer (10%) Electrical Engineer (10%) Civil/Structural Engineer (10%)

Excellent (4) Above the required (3) As required (2) Below the required (1) Unacceptable (0)

Note 6: The Evaluated Tender Prices are rated, giving the lowest offered price a rating of 4, and the others inversely in proportion to the price, according to the following formula:

Where “X” is the lowest price of the responsive tenders, the rating of another tender with the price “Y” is

Rating of TenderY = X/Y * 4

The Evaluated Tender Price includes correction of errors (refer to Sub-Clause 29.2 of the Instructions to Tenderers) and adjustments required for any other acceptable variations or deviations (refer to Sub-Clause 29.2 of the Instructions to Tenderers).

Note 7: The Evaluated Tender Price for Spare Parts quoted for a specified selection of relevant spare parts and consumables (the selection of parts and quantities shall be made by the Employer and detailed in the Employer’s Requirements/ Specifications) are rated giving the lowest offered sum of prices a rating of 4, and the others inversely in proportion to the price, according to the formula shown above under Note (7).

The Evaluated Tender Price for Spare Parts includes correction of errors (refer to Sub-Clause 8.4 of the Instructions to Tenderers) and adjustments required for any other acceptable variations or deviations (refer to Sub-Clause 8.5 of the Instructions to Tenderers).

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Example of Evaluation Criteria (contract involving mainly construction) The model, factors and weight used for the evaluation, as shown below, were established by the Tender Evaluation Committee prior to the opening of the tenders.

Each factor was evaluated using the following rating:

Excellent: 4 Above average: 3 Average: 2 Below average: 1 Not acceptable: 0

Evaluation Model

Note Factors Weight Rating (0-4)

Weight x Rating

1 Suitability of proposed Work Programme 5%

2 Relevant Qualifications and Experience of Key Staff 10%

Subtotal, technical factors 15%

3 Evaluated Tender Price 85%

Subtotal, price factors 85%

Total 100%

Note 1: The Suitability of the Proposed Work Programme compared to the outline program or minimum requirements as described in the Specifications prepared by the Engineer on behalf of the Employer, giving a rating of 2 for the tender with a work plan in conformance to these, 3 for the tender with a work plan better suited, and 4 for the tender with a work plan exceeding the expectations.

Note 2: Relevant Qualifications and Experience of proposed Key Staff. Factor sub-divided, weighted and rated as follows:

Qualifications (relevant education and degree) and experience (10 years with similar contracts and in similar positions):

Contract Manager (30%) Resident Engineer (50%) Asphalt Specialist (20)

Excellent (4) Above the required (3) As required (2) Below the required (1) Unacceptable (0)

Note 3: The Evaluated Tender Prices are rated, giving the lowest offered price a rating of 4, and the others inversely in proportion to the price, according to the

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following formula:

Where “X” is the lowest price of the responsive tenders, the rating of another tender with the price “Y” is

Rating of TenderY = X/Y * 4

The Evaluated Tender Price includes correction of errors (refer to Sub-Clause 29.2 of the Instructions to Tenderers) and adjustments required for any other acceptable variations or deviations (refer to Sub-Clause 29.2 of the Instructions to Tenderers).

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Attachment F

Forms of Schedules

The Schedules are the documents entitled schedules, to be completed by the tenderer and submitted with the Letter of Tender and included in the Contract.

Such schedules may, depending on the type of works, services and supply of goods, include

- a schedule of prices with a breakdown of the Contract Price in prices of a number of identifiable parts of works or plant or activities and used for calculation of payment due, or a schedule of payment specifying the instalments in which the Contract Price will be paid (in lump sum contracts),

- a bill of quantities and schedule of rates used for calculation of payment due (in measurable contracts),

- a schedule of technical documentation and data for plant and parts proposed for the Contract,

- a list and CVs of the personnel proposed for the Contract,

- a work plan and programme proposed for the Contract,

- a schedule of proposed subcontractors with details and proportion of the works to be subcontracted, name and address and experience of each subcontractor,

- a schedule detailing the proposed quality assurance system and activities,

- a schedule of the proposed spare parts with quantities and prices,

- a schedule of after sales service,

- a schedule of training.

In order to ensure comparable tenders, the Employer should include, in the tender documents a page for each schedule, specifying the required format and the details to be filled in by the tenderer.

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Attachment G

Employer’s Requirements/Specifications

The term “Employer’s Requirements” means the document entitled employer’s requirements, drawn up by (or on behalf of) the Employer specifying the purpose, scope, and/or design and/or other technical criteria for the Works, and included in the Contract.

“Employer’s Requirements” may include plans, outline drawings etc. and are used in connections with:

- Contracts where the Contractor is going to do most of the design as detailed design of plant and equipment and possibly also various infrastructure, in accordance with outline or performance specification prepared by the Employer or the Engineer (the Employer’s Requirements).

- Contracts where the Contractor takes total responsibility for the design and construction of the facility or infrastructure, in accordance with performance specifications prepared by the Employer or on behalf of the Employer (the Employer’s Requirements).

The term “Specifications” means the document entitled specification, issued by (or on behalf of) the Employer and specifying the Works.

The term “Drawings” means the drawings of the Works issued by the Employer issued by (or on behalf of) the Employer.

“Specifications” and “Drawings” are used in connection with contracts where the Employer (or the Engineer) is going to do most of the design possibly excluding construction or plant details construction and where the design is detailed in the drawings and specifications.

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Attachment H

Statement of Danish Content (only for Danish Tied Mixed Credits to China)

[Date] To: [name and address of Employer] We ascertain that the Danish content of the works, supply of goods and provision of services for the [name and number of contract] is not less than 25% of the quoted contract amount, calculated on the basis of the guaranteed risk sum, according to the definition by Eksport Kredit Fonden.

For details of the calculation see the attached schedule.

We accept that the Danish content may be subject to verification by Danida or EKF at any time.

Authorised Signature: Name and Title of Signatory: Name of Tenderer: Address:

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Annex D: Terms and Explanations Parties:

Borrower: The public authority (ministry) or commercial bank being a party to the Loan Agreement and on-lending to the Employer (Buyer) or the End User if different from the Employer (Buyer).

Contractor (Supplier or Exporter): The entity being the party to the Contract undertaking execution of the Works.

Danida: Ministry of Foreign Affairs of Denmark.

Danish Mixed Credits: An interest free or low interest loan with a maturity of 10-15 years aimed at financing contracts for supply and installation of plant and/or construction for governments or public entities in eligible developing countries.

The loan may be tied to Danish contractors or suppliers or untied (but tied to OECD country contractors or suppliers).

Dispute Adjudication Board: The Dispute Adjudication Board (DAB) comprises either one or three suitably qualified persons named in the Contract and appointed to give a decision on any dispute where the parties to the Contract fail to agree. A decision to which either or both parties give notice of dissatisfaction shall be settled by international arbitration. The DAB may be ad hoc (the normal situation under FIDIC’s Conditions of Contract for Plant and Design-Build 1999) or full-term (the normal situation under FIDIC’s Conditions of Contract for Construction 1999).

Employer (Buyer): The contracting authority in whose name the pre-qualification process, the tender process and the conclusion and execution of the contract are carried out and who will be taking over the Works on completion.

End User: The party who will receive and be the user of the project, if different from the Employer. Engineer: The person appointed by the Employer to act as the Engineer and carry out the duties assigned to him in the Contract (giving instructions, approvals, carry out examinations and inspections, issuing certificates, giving and receiving notices, issuing payment certificates etc.). The Engineer shall be deemed to act for the Employer.

In turnkey contracts and in some cases also in design-build contracts, the Employer may replace the Engineer by an Employer’s Representative with full authority to act on his behalf and administer the Contract, monitor manufacture, supplies and works, and certify payment certificates. If replacing the Engineer with an Employer’s Representative in contracts following the format of the FIDIC Conditions of Contract for Plant and Design-Build, the duties of the Engineer as specified herein shall be amended and assigned to the Employer’s Representative.

Lender: The Danish Bank providing the loan and arranging payments on behalf of the Borrower.

Secretariat for Mixed Credits: The secretariat within Danida administering the Mixed Credit Programme including project preparation, appraisals, approvals for support, loan arrangement, and payment of the interest subsidy.

Tenderer (Bidder): Any natural or legal person or group thereof submitting a tender with a view to concluding a contract to provide certain services, to carry out certain works

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and/or certain plant.

The Tender Process: Eligible Tenderers and Contractors (Suppliers): Danish Mixed Credit comprises

- a facility of tied support aimed at all eligible developing countries, where only Danish Contractors (Suppliers) are eligible to participate,

- a facility of either tied or untied support aimed at Danida’s Programme Countries and South Africa where, if tied, only Danish Contractors (Suppliers) are eligible to participate, if untied, all Contractors (Suppliers) established in an OECD-member country are eligible to participate.

The detailed requirements to eligibility may be found in Annex B - Invitation for Pre-qualification and Instructions to Applicants.

Invitation to Tender (Invitation to Bid): A letter issued by the Employer inviting,

- if tendering is restricted to pre-qualified entities, only entities found qualified and eligible to tender, or

- if tendering is open to all any entity believing it is eligible and qualified,

and with details of source of funds, name and address of the Employer and contact person, name, phone and e-mail address of the Employer and contact person, place and price of obtaining the tender documents, period of validity of tenders, place and time for a joint site visit (if any), whether alternative tenders are permitted, and place and date for submission of tenders.

Instructions to Tenderers (Instructions to Bidders): Instructions issued by the Employer to the tenderers defining the conditions for preparing a tender and for the tender process (contents of the tender documents, requirements to eligibility, field visit, how to prepare, contents of the tender, submission of tenders, opening of tenders, examination and evaluation of tenders, award procedures).

Letter of Tender (Bid Form): The document entitled letter of tender, which has been completed by the tenderer and includes the signed offer to the Employer.

Pre-qualification: The process of selecting qualified candidates for the tendering.

Post-qualification: The process of verifying the qualifications of the selected tenderer before considering award.

Tender (Bid): Depending on the context either the procedure or the documents forming the offer by the tenderer.

Tender Committee: A committee established by the Employer and charged with the execution of the tendering and award procedure.

Tender Documents (Bidding Documents): The set of documents compiled by the Employer (or by a consultant for the Employer), containing all the documents needed to prepare and submit a tender, and issued to the tenderers.

Letter of Acceptance: The letter of formal acceptance signed by the Employer including any annexed memoranda comprising agreements between the parties. The acceptance shall be subject to meeting all the conditions for the contract coming into force (see below under Date of Contract Coming into Force.

If there is no letter of acceptance, “Letter of Acceptance” shall mean the Contract

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Agreement and date of the Letter of Acceptance, the date of signing the contract and meeting all the conditions for the contract coming into force.

The Contract: Commercial Contract: See Contract. The word “commercial” is sometimes used to distinguish this contract agreement from the loan agreement.

Contract for Construction: A contract for building and engineering works designed by the Employer. The Employer will have appointed the Engineer, who will administrate the contract on behalf of the Employer. Contract for Plant and Design-Build: A contract for electrical and mechanical plant and for building and engineering works designed by the Contractor. The Employer will have appointed the Engineer or the Employer’s Representative, who will administrate the contract on behalf of the Employer.

Contract for EPC/Turnkey Projects: A contract where the Employer wishes to implement the project on a fixed price basis and in a way where the Contractor takes total responsibility for the design and without the Engineer as a third party. Contract: The contract between the Employer (Supplier) and the Contractor, forming the legal, commercial and technical basis for the execution of the contract for the Works (Supply and Installation of Plant and/or Construction).

The documents forming the Contract between the Employer and the Contractor/Supplier may include Memorandum of Understanding, Letter of Tender, Appendix to Tender, Contract Agreement, General Conditions, Schedules, Employer’s Requirements or Specifications and Drawings, and Forms of Securities. Employer’s Requirements: The document drawn up by (or on behalf of) the Employer specifying the purpose, scope, and/or design and/or other technical criteria for the Works.

General Conditions: The contractual provisions, usually established in the form of a standard, setting out the administrative, commercial, legal and technical terms governing the execution of contracts.

Particular Conditions (Special Conditions): The conditions specific for the Contract supplementing or amending the General Conditions and prepared by the Employer.

Schedules: The documents completed by the Contractor and submitted with the letter of tender. Such document may include

- in lump sum contracts, data, lists and schedules of payment and/or prices, and - in measurable contracts, bills of quantities, data, lists and schedules of rates

and/or prices. Specifications: The document drawn up by (or on behalf of) the Employer and together with the drawings of the Works drawn up by (or on behalf of) the Employer and specifying the Works.

Financing: Exporter’s Declaration: A statement signed by the Exporter (Contractor) referring to the interest subsidy and the export transaction, and confirming that he will comply with all the conditions for the mixed credit support including the General Conditions for Approval of Commercial Contracts financed under Danish Mixed Credits. Buyer/End User’s Declaration: A statement signed by the Buyer (Employer)/End

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User referring to the (commercial) Contract and confirming that complementary financing (if any) is secured, that it intends to implement the project in accordance with the Contract and that it will comply with all the conditions for the mixed credit support including the General Conditions for Approval of Commercial Contracts financed under the Danish Mixed Credits. Loan Agreement: The agreement between the Lender and the Borrower regulating the loan arrangement, the payments, and the repayment.

Dates, Periods and Completion: Date of Contract Coming into Force: The date when all the conditions as listed in the Contract Agreement or Conditions have been met (signing of contract, approval of contract and the financial support by Danida, conclusion of the loan agreement and approval of the Authorities in the Employer’s country, approval by “Eksport Kredit Fonden, EKF”, and presentation of the advance payment guarantee and the performance guarantee and payment of the advance).

Commencement Date: The Commencement Date is usually 42 days after the Letter of Acceptance unless otherwise stated. The Contractor shall commence design and execution of the Works as soon as reasonably practicable. Time for Completion: The time (period) set for completing the Works as stated in the Particular Conditions with any extensions granted.

Tests on Completion: The tests, which are specified in the Contract or agreed between the parties. Verification of these tests and issue by an independent verification body are required by Danida.

Taking-over (Commissioning): The procedure of the Employer taking-over the Works or a Section of the Works by issue of a Taking-over Certificate verified by an independent third party.

Defects Notification Period: The period after taking-over for notifying defects in the Works or Section of the Works (as the case may be). This period is sometimes called “Defects Liability Period” or “Guarantee Period”.

Performance Certificate: The performance of the Contractor’s obligations shall not be considered completed until the Engineer or the Employer (as the case may be) has issued a Performance Certificate to the Contractor verified by an independent third party. .

The Performance Certificate shall be issued within 28 days after the latest of the expiry dates of the Defects Notification Periods or as soon thereafter as the Contractor has supplied all Contractor’s Documents and completed and tested all the Works, including remedying all defects.

Works and Goods: Contractor’s Equipment: All apparatus, machinery, vehicles and other things required for the execution of the Contract (excluding plant, Employer’s equipment (if any) materials and any other things to form or forming part of the permanent Works.

Goods: The Contractor’s equipment, materials, and plant.

Materials: Things of all kinds (other than Plant) intended to form or forming part of the Permanent Works, including supply-only materials (if any) to be supplied by the Contractor under the Contract.

Plant: The apparatus, machinery, and vehicles intended to form basis for the permanent works.

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Section: The Works may be divided into parts, with separate taking-over and ending of the defects notification period.

Works: The permanent works and the temporary works, including surveying, setting out, civil or construction works, supply and installation of plant, spare parts, and related services.

Payment Bill of Quantities: A detailed schedule of items, units, estimated quantities, and unit prices covering all the works and used for calculation of payment based on measured quantities.

Schedule of Payment: A schedule specifying the instalments (by reference to actual progress or otherwise) in which the Contract Price will be paid.

Schedule of Prices: The Contract may not include a Schedule of Payments, but a Schedule of Prices, i.e. a breakdown of the lump sum price of the Contract used for calculation of payments. The break down is usually divided into main items of works and services on site, and plant and materials supplied.

If the Contract does not include a Schedule of Payment the Contractor shall within 42 days of the Letter of Acceptance submit unbinding estimates of the payments, which he expects to become due during each quarterly period. Revised estimates shall be submitted quarterly.

Other: Advance Payment Guarantee: An unconditional bank guarantee, payable on demand, as security for repayment of the advance payment.

The advance payment may be repaid by deductions of the interim payments, or if the advance payment is the first instalment, considered repaid pro rata of the value of works and services completed or plant and materials supplied.

The guarantee may be reduced by the amount repaid by the Contractor. Performance Security: An unconditional bank guarantee, payable on demand, as security for proper performance.

Retention: A reduction by a percentage of all interim payments accumulated and upon completion either paid in full or in part or replaced by a separate guarantee or the Performance Security. Usually not applied in connection with Contracts financed under the Mixed Credit Programme.

Tender Security: An unconditional bank guarantee, payable on demand, as security for the Tenderer withdrawing his offer after the time for tender submission or before the period of validity, refusing to accept correction of errors, failing to signing the Contract, or failing to submit the Performance Security. Usually not applied in connection with Contracts financed under the Mixed Credit Programme.

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Annex E: Form of Buyer/End User’s Declaration, August 2007 (Letterhead of the Buyer/End User) Ministry of Foreign Affairs of Denmark (Danida) Secretariat for Mixed Credits 2, Asiatisk Plads DK-1448 Copenhagen K (Date and place of issue) Buyer/End User’s declaration regarding (insert project title) Dear Sirs, We refer to the Commercial Contract dated (insert date) and made between us (in the Contract called the Employer) and (insert name of Exporter] (in the Contract called the Contractor), hereinafter referred to as ‘the Exporter’ concerning the above project. In relation to the Loan Agreement (to be) signed between (insert name of the Borrower) as Borrower and (insert name of the Lender) as Lender in order to finance the supply from the exporter under the said Commercial Contract, we hereby warrant:

(a) That the complementary financing of the entire project investment is secured by firm

commitment on the part of the other financiers.

(b) That we intend to implement the project in accordance with the provisions of the Commercial Contract and with our representations to the independent consultant employed by the Ministry of Foreign Affairs of Denmark (Danida) during the appraisal of the project and with any other undertakings made by ourselves in relation to this project.

(c) That the following issues are satisfactorily dealt with in connection with the execution

of the project: • ....(insert as appropriate) • .... • ....

(d) That we comply with the fundamental principles and rights at work as defined by

International Labour Organisation: • Elimination of forced and compulsory labour; • Abolition of child labour; • Elimination of discrimination in the workplace; • ** Freedom of association and the right to collective bargain (for private

buyers) / Compliance with nationally adopted international agreements regarding the freedom of association and the right to collective bargain (for public buyers)**.

(e) That we intend to report to Danida the following outcome indicators identified during

appraisal of the project: • ....(insert as appropriate)

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• .... • ....

The information shall be collected and reported to Danida on an annual basis for 5 (five) consecutive years starting one year after issue of the Taking-over Certificate of the project.

We further undertake:

(f) To notify you promptly of any serious delay in the project implementation or any major change to the project, whether actual or proposed.

(g) To allow you or your representatives, including the independent consultant mentioned

below, to enter upon sites where deliveries included in the Commercial Contract are being or have been stored, installed or erected, subject to reasonable advance notice being given.

(h) To provide you or your representative, including the independent consultant

mentioned below, with any such supplementary information regarding the use of the proceeds of the loan as may reasonably be requested.

We also confirm that we accept:

(i) The terms of the General Conditions for the Approval of Commercial Contracts financed under Danish Mixed Credits (August 2007), including:

1) The right of stoppage by Danida, 2) That variations and contractor’s claims will not be financed under the mixed

credit unless otherwise agreed, 3) That payment in connection with employer’s claims shall be credited the balance

of the mixed credit loan. (j) That any major change to the Commercial Contract or any major de facto change in

the project, including change of project location and implementation plan, is to be submitted to Danida for approval. Where any changes are undertaken without Danida approval and where Danida at its sole discretion considers any such change to be material to the proper implementation of the project, Danida may order the exporter to suspend shipments and work under the contract. Danida shall in this situation instruct an independent consultant to review the project. If the said consultant confirms that the changes can be vital to the proper implementation of the project, the consultant and Danida may recommend changes to the project. Where, following such recommendations Danida and the parties to the Commercial Contract cannot agree on a revised project concept, Danida may give notice to the Lender and the parties to the Commercial Contract that it is not bound by its commitment to further support the project.

(k) That in this case the financial support already received from Danida is to be repaid by

us no later then one month after Danida giving such notice, and the parties to the mixed credit will enter into negotiations in order to arrange a new basis for continuation of the loan on market conditions.

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(l) That Danida may give notice to the Lender and the parties to the Commercial Contract that it is not bound by its commitment to further support the project and that the financial support already received from Danida is to be repaid by us, if Danida at its sole discretion determines that, with respect to the Danish funds, corrupt or fraudulent practices were engaged in by persons representing the borrower or us during procurement or during the execution of the contract.

(m) That in case of our breach in whole or partially of this declaration, Danida may give

notice to the Lender, and the parties to the Commercial Contract that it is not bound by its commitment to further support the project. Further, the financial support already received from Danida is to be repaid by us no later than one month after Danida giving such notice, and the parties to the mixed credit will enter into negotiations in order to arrange a new basis for continuation of the loan on market conditions.

(n) That we have neither the power nor the will to raise any claim against Danida or its

representatives if Danida withdraws its support due to our non-compliance with the stipulations contained in the present declaration.

We finally confirm:

(o) That any dispute arising in connection with this declaration shall be brought before the Maritime and Commercial Court in Copenhagen and shall be governed by Danish law.

Yours sincerely,

(Buyer/End User)

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Annex F: Form of Exporter’s Declaration, August 2007 Secretariat for Mixed Credits EXPORTER’S DECLARATION to the Ministry of Foreign Affairs of Denmark (Danida) concerning Interest Subsidy etc. for Tied Mixed Credits to Developing Countries The Ministry of Foreign Affairs of Denmark (Danida) has issued a preliminary approval of interest subsidy etc. to (insert name of bank) in connection with the financing of the following export transaction: Exporter (in the Contract called the Contractor): (insert) Buyer (in the Contract called the Employer): (insert) End User: (insert if applicable, otherwise delete) Project title: (insert) Contract amount and currency: (insert) Contract date: (insert) Lender: (insert) Borrower: (insert) Loan amount and currency: (insert) The approval of mixed credit support is subject to the following conditions: • For Tied Mixed Credits to China: That not less than 25% of the guaranteed loan amount is

applied towards financing of supplies of Danish content as defined by Eksport Kredit Fonden (the Danish Export Credit Fund);

• That the information given to the Lender for his application for interest subsidy and export

credit guarantee is correct and exhaustive, and that the Lender has been made and will continue to be made aware of any subsequent changes to the matters already disclosed.

• That information given to Danida for the appraisal of the project is correct and exhaustive. • That the time plan under the contract is feasible and allows for minor delays in the

implementation of the project. • That the undersigned Exporter complies with the obligations under the commercial contract. • That the undersigned Exporter complies with the four fundamental principles and rights at

work as defined by International Labour Organisation:

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− Freedom of association and the right to collective bargain; − Elimination of forced and compulsory labour; − Abolition of child labour; − Elimination of discrimination in the workplace.

Further, the exporter shall have declarations from the sub-contractor(s) that the

subcontractor(s) abide with the four fundamental principles as above in case the subcontractor(s) holds ten percent or more of the total value of the contract.

• That Danida may obtain documentation regarding the project at any time, including payment

documents, supply contract, etc. • That during the implementation of the project the undersigned Exporter will file brief

quarterly reports (January, April, July and October) within one month after the end of the quarter concerning:

- Project implementation in relation to contract time schedule and budget. - Any other facts of material importance to project implementation.

However, this is not in any way to be interpreted as a renunciation by Danida of the Exporter’s obligation to inform Danida immediately and explicitly about any material changes or problems in connection with the implementation of the project (cf. below).

• That Danida be given written notice without delay of any contemplated material changes to

the project or any substantial delays of supplies, more particularly of any delay of final taking over and the causes thereof.

• That Danida be given notice without delay of any problems/disagreements arising between

the Buyer/End User and the undersigned Exporter during the implementation as well as during the Defects Notification Period.

• That the undersigned Exporter accepts the terms of the General Conditions for the Approval

of Commercial Contracts financed under Danish Mixed Credits (August 2007), including - The right of stoppage by Danida. - That variations and contractors claims will not be financed under the mixed credit

unless otherwise agreed. • That measures be taken to conduct the following verifications: - Before issue of the Taking-over Certificate (after completion and commissioning) and - Before issue of the Performance Certificate (at the end of the Defects Notification

Period) by the verification party named in Danida’s approval. Danida will pay for the verification. • That the following remaining conditions stipulated for the project implementation by Danida

are complied with: .(insert remaining conditions) . .

The undersigned Exporter warrants that the aforesaid conditions will be strictly complied with, and the undersigned Exporter further undertakes:

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• To stop the implementation of the contract and presentation of documents releasing disbursements under the loan, where so required by Danida.

• To reimburse Danida for any interest subsidy etc. paid to the Lender in case of our non-

compliance in whole or partially by or through the Exporter with respect to this declaration. Moreover, the undersigned Exporter accepts that Danida may revoke the interest subsidy approval and may in addition exclude the undersigned Exporter from any contracts financed under the Danish development assistance, where it is found that corrupt or otherwise illegal means have been used by the undersigned Exporter for the purpose of winning and/or performing the contract. The undersigned Exporter is aware of the terms of the Buyer/End User’s and Borrower’s Declarations issued to Danida. In this connection the undersigned Exporter confirms that we do not intend to and are not entitled to raise claims against the Lender or Danida if the performance of the contract and the presentation of documents releasing disbursements are stopped owing to the Buyer’s or the Borrower’s failure to comply with the terms of the Buyer/End User’s Declaration or the Borrower’s Declaration respectively. This declaration is subject to Danish law, and any dispute shall be brought before the Maritime and Commercial Court in Copenhagen. .............. ...................... Place, date Binding signature

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Notes of Guidance for Exporter’s Declarations concerning Danish Tied Mixed Credits to Developing Countries Background An Exporter’s Declaration is issued in connection with the financing of a given export transaction being taken over by a bank and the interest subsidy etc. being duly paid to the financing bank. In that connection the Ministry of Foreign Affairs of Denmark (Danida) is required to ensure that the following conditions are met: That the information given is correct and satisfactory. That the Exporter is complying with his obligations. That the conditions stipulated in connection with Danida’s appraisal and approval of the project are reflected in the commercial contract and are complied with in the project implementation. That Danida is capable of exercising the necessary control in respect of the approval and application of the interest subsidy and the achievement of its object. That repayment of the interest subsidy etc. or any part thereof may be claimed in case of any non-compliance by or through the Exporter with the conditions subject to which the interest subsidy etc. was approved. Information to the lending bank and Danida It is in the best interest of the Exporter that the lending bank and Danida should be given correct and satisfactory information of the export transaction until completion. The definition of “supplies of Danish content” (only for Danish Tied Mixed Credits to China) Supplies of Danish content may be defined according to two different methods: the origin principle and the value added principle. For further information, please contact Eksport Kredit Fonden (EKF). Obtaining an Exporter’s Declaration An Exporter’s Declaration should be obtained by the lending bank (recipient of the subsidy) and be submitted to Danida. The final approval of interest subsidy etc. is subject to the submission of a duly signed Exporter’s Declaration.

Ministry of Foreign Affairs of DenmarkDanidaSecretariat for Mixed Credits2, Asiatisk PladsDK-1448 Copenhagen KDenmarkPhone +45 33 92 00 00Fax +45 33 92 00 20E-mail [email protected] mixed-credits.dk