negotiated procurement of the independent consultant for the...

Negotiated Procurement of an Independent Consultant for the Southwest Integrated Transport System PPP Project (Two Failed Biddings)

Negotiated Procurement of the Independent Consultant for the Southwest Integrated Transport

System PPP Project (Two Failed Biddings)

Department of Transportation and

Communications

October 2015


Negotiated Procurement of Independent Consultant for the Southwest Integrated Transport System PPP

Project (Two Failed Biddings)

TABLE OF CONTENTS SECTION I. INVITATION TO OFFERORS TO NEGOTIATE ................ 3

SECTION II. INSTRUCTIONS TO OFFERORS ....................................... 6

SECTION III. NEGOTIATION DATA SHEET ....................................... 33

SECTION IV. GENERAL CONDITIONS OF CONTRACT .................... 52

SECTION V. SPECIAL CONDITIONS OF CONTRACT ....................... 77

SECTION VI. TERMS OF REFERENCE ................................................ 82

SECTION VII. NEGOTIATION FORMS............................................... 106


Section I. Invitation to Offerors to Negotiate


Invitation to Offerors to Negotiate for the Independent

Consultant of the Southwest Integrated Transport System PPP Project

1. The Department of Transportation and Communications (DOTC), through the Bids and

Awards Committee (BAC) -Negotiating Team, will undertake the Negotiated Procurement of the Independent Consultant for the Southwest Integrated Transport System PPP Project (“Project”) with a total contract amount of Forty Eight Million Nine Hundred Ninety Two Thousand Nine Hundred Forty Four Pesos (Php 48,992,944.00).1 Bids received in excess of the ABC shall be automatically rejected at the opening of the financial proposals.

2. In this regard, we are pleased to invite your company through your duly authorized

representative(s) to a Pre-Negotiation Conference on 14 October 2015 at 2:00 p.m. at DOTC Conference Room, 16th Floor, The Columbia Tower, Ortigas Avenue, Brgy. Wack-Wack, Mandaluyong City.

3. The deadline for the submission of the Eligibility Documents, Technical Proposals and

Financial Proposals for the services of an Independent Consultant for the Southwest Integrated Transport System PPP Project is on or before 19 October 2015 at 10:00 a.m. at Unit 153, 15th Floor, The Columbia Tower, Ortigas Avenue, Brgy. Wack-Wack, Mandaluyong City.

4. The Negotiation Documents which include the Instructions to Offerors (“ITO”), Terms of

Reference (“TOR”), Contract and Forms for the subject procurement are available for download at the PhilGEPS and the DOTC website. Please be advised that the non-refundable fees for the Negotiation Documents which must be paid not later than the date for the deadline of submission of Eligibility Documents, Technical Proposals and Financial Proposals are:

(a) First-Time Offerors will pay Five Thousand Pesos (PhP5,000.00); while (b) Offerors who have previously participated in any of the first two (2) public

biddings/tenders of an Independent Consultant for the Southwest Integrated Transport System PPP Project will pay One Thousand Pesos (PhP1,000.00).

5. The Procuring Entity shall evaluate bids similar to the Quality-Cost Based

Evaluation/Selection (QCBE/QCBS) procedure. For this purpose, the Technical and Financial Proposals shall be given weights at Seventy Percent (70%) and Thirty Percent (30%), respectively, comprising a total of One Hundred Percent (100%). The criteria and rating system for the evaluation of bids shall be provided in the ITO.

1 Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy Two Pesos (Php 24,496,472.00) being 50% of the total contract amount will be shouldered by the DOTC, while the remaining 50% will be shouldered by MWM Terminals, Inc., the PPP concessionaire for the Southwest ITS Project.

Republic of the Philippines DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS


6. Interested Offerors who have participated in the competitive biddings for the Project may request for the certification of its valid Eligibility Documents submission from the Procuring Entity‟s Secondary BAC Secretariat five (5) days before the submission of Negotiation Documents.

7. Termination of the contract shall be on the earlier of the completion of the Independent

Consultant‟s performance of its obligations and the termination of the Independent Consultant‟s appointment under Section 9 of Schedule 16 of the Concession Agreement.

8. The DOTC reserves the right to reject any and all bids, annul the bidding process, or not

award the contact at any time prior to contract award, without thereby incurring any liability to the affected Offeror or Offerors.

9. For further information, please do not hesitate to contact Ms. Andrea Bernarte at Unit

153, 15th Floor, The Columbia Tower, Ortigas Avenue, Brgy. Wack-Wack, Mandaluyong City at Tel. No. 790 8300 loc. 235/272 and Telefax at 654-7725. You may likewise send your written queries at [email protected].

Thank you and we look forward to your participation in the negotiations for the above-mentioned Project. Very truly yours, By Authority of the Bids and Awards Committee: (SGD.)JAIME FORTUNATO A. CARINGAL Head, Negotiating Team for the Procurement of the Independent Consultant of the Southwest Integrated Transport System PPP Project and Assistant Secretary for Project Development and PPP


Section II. Instructions to Offerors

NEGOTIATED PROCUREMENT FOR THE INDEPENDENT CONSULTANT OF THE SOUTHWEST INTEGRATED

TRANSPORT SYSTEM PPP PROJECT (Two Failed Biddings)

Negotiated Procurement of an Independent Consultant for the Southwest Integrated of 136 Transport System PPP Project (Two Failed Biddings)

Republic of the Philippines

DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS

INSTRUCTIONS TO OFFERORS

NEGOTIATED PROCUREMENT OF AN INDEPENDENT CONSULTANT FOR THE SOUTHWEST

INTEGRATED TRANSPORT SYSTEM PPP PROJECT (Two Failed Biddings)

A. General

1. Introduction

1.1 The Procuring Entity named in the Negotiation Data Sheet (NDS) shall select an individual, sole proprietorship, partnership, corporation, or a joint venture (JV) (hereinafter referred to as “Consultant”) in accordance with the evaluation procedure specified in the NDS.

1.2 The Procuring Entity has received financing (hereinafter called “funds”) from the source indicated in the NDS (hereinafter called the “Funding Source”) toward the cost of the Project named in the NDS. The Procuring Entity intends to apply a portion or the whole of the funds to payments for this Project.

1.3 Consultants are invited to submit proposals composed of eligibility documents, a technical proposal and a financial proposal for Consulting Services required for this Project described in the NDS. Bids shall be the basis for contract negotiations and ultimately for a signed contract with the selected Consultant.

1.4 If the NDS indicates that the Project will be completed in phases, each phase must be completed to the Procuring Entity‟s satisfaction prior to the commencement of the next phase.

1.5 Consultants must familiarize themselves with local conditions and take them into account in preparing their offers. To obtain firsthand information on the project and on the local conditions, Consultants are encouraged to visit the Procuring Entity before submitting a proposal and to attend the Pre-Negotiation Conference specified in ITO Clause 7.

1.6 The Consultants‟ costs of preparing their offers and negotiating the contract, including a visit to the Procuring Entity, are not reimbursable as a direct cost of the project.

1.7 Consultants shall not be under a declaration of ineligibility for corrupt, fraudulent, collusive, or coercive practices issued by the Funding Source or the Procuring Entity in accordance with ITO Clause 3.1.

1.8 Eligibility Criteria


(a) The following persons/entities shall be allowed to participate in the procurement of Consulting Services:

(i) Duly licensed Filipino citizens/sole proprietorships;

(ii) Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the interest belongs to citizens of the Philippines;

(iii) Corporations duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the outstanding capital stock belongs to citizens of the Philippines;

(iv) Cooperatives duly organized under the laws of the Philippines, and of which at least sixty percent (60%) interest belongs to citizens of the Philippines; or

(v) Persons/entities forming themselves into a joint venture, i.e., a group of two (2) or more persons/entities that intend to be jointly and severally responsible or liable for a particular contract: Provided, however, That Filipino ownership or interest thereof shall be at least sixty percent (60%). For this purpose, Filipino ownership or interest shall be based on the contributions of each of the members of the joint venture as specified in their JVA.

(b) When the types and fields of Consulting Services involve the practice of professions regulated by law, those who will actually perform the services shall be Filipino citizens and registered professionals authorized by the appropriate regulatory body to practice those professions and allied professions specified in the NDS.

(c) The Invitation to Offerors allows participation of one hundred percent (100%) foreign consultants who may be eligible subject to the qualifications stated in the NDS.

(d) Government corporate entities may be eligible to participate only if they can establish that they (a) are legally and financially autonomous, (b) operate under commercial law, and (c) are not dependent agencies of the GOP or the Procuring Entity.

1.9 Eligibility Requirements

(a) The following eligibility requirements shall be submitted on or before 19 October 2015, 10:00 a.m. for purposes of determining eligibility of prospective Offerors:

(i) Class “A” Documents

Legal Documents

a. Registration certificate from Securities and Exchange Commission (SEC), Department of Trade and Industry


(DTI) for sole proprietorship, or Cooperative Development Authority (CDA) for cooperatives, or any proof of such registration as stated in the NDS;

b. Mayor‟s permit issued by the city or municipality where the principal place of business of the prospective Offeror is located;

c. Current and valid Tax Clearance per Executive Order No. 398, Series of 2005, as finally reviewed and approved by the BIR

Technical Documents

d. Statement of the prospective Offeror of all its ongoing and completed government and private contracts, including contracts awarded but not yet started, if any, whether similar or not similar in nature and complexity to the contract to be bid, within the relevant period provided in the NDS. The statement shall include, for each contract, the following:

i. The name and location of the contract;

ii. date of award of the contract;

iii. type and brief description of consulting services;

iv. consultant‟s role (whether main consultant, subcontractor, or partner in a JV)

v. amount of contract;

vi. contract duration; and

vii. certificate of acceptance or completion or equivalent document specified in the NDS issued by the client, in the case of a completed contract;

e. Statement of the consultant specifying its nationality and confirming that those who will actually perform the service are registered professionals authorized by the appropriate regulatory body to practice those professions and allied professions in accordance with Clause 1.8(b).

Financial Document

f. The consultant‟s audited financial statements, showing, among others, the consultant‟s total and current assets and liabilities, stamped “received” by the BIR or its duly accredited and authorized institutions, for the preceding


calendar year which should not be earlier than two (2) years from the date of bid submission.

(ii) Class “B” Documents

Valid joint venture agreement (JVA), in case a joint venture is already in existence. In the absence of a JVA, duly notarized statements from all the potential joint venture partners stating that they will enter into and abide by the provisions of the JVA in the instance that the bid is successful shall be included in the bid. Failure to enter into a joint venture in the event of a contract award shall be ground for the forfeiture of the bid security. Each partner of the joint venture shall submit the legal eligibility documents. The submission of technical and financial documents by any of the joint venture partners constitutes compliance.

(b) In the case of foreign consultants, the foregoing eligibility requirements under Class “A” Documents may be substituted by the appropriate equivalent documents, if any, issued by the foreign consultant‟s country.

(c) The eligibility requirements or statements and all other documents to be submitted to the BAC must be in English. A translation of the documents in English certified by the appropriate embassy or consulate in the Philippines must accompany the eligibility requirements under Classes “A” and “B” Documents if they are in other foreign language.

(d) Prospective Offeror may obtain a full range of expertise by associating with individual consultant(s) and/or other consultants or entities through a JV or subcontracting arrangements, as appropriate. However, subcontractors may only participate in the bid of one consultant. Foreign Consultants may seek the participation of Filipino Consultants by entering into a JV with, or subcontracting part of the project to, Filipino Consultants.

(e) If a prospective Offeror has previously secured a certification from the Procuring Entity to the effect that it has previously submitted the above-enumerated Class “A” Documents, the said certification may be submitted in lieu of the requirements enumerated in Clause 1.9(a)(i) or Class “A” Documents.

2. Conflict of Interest

2.1 The Funding Source‟s policy requires that Consultants provide professional, objective, and impartial advice and at all times hold the Procuring Entity‟s interests paramount, without any consideration for future work, and strictly avoid situations where a conflict of interest shall arise with their other projects or their own interests. Consultants shall not be hired for any project that would be in conflict with their prior or current obligations to other entities, or that may place them in a position of not being able to carry out the Project in the best interest of the Procuring Entity. Without limitation on the generality of this rule, Consultants shall not be hired under the circumstances set forth below:


(a) If a Consultant combines the function of consulting with those of contracting and/or supply of equipment;

(b) If a Consultant is associated with, affiliated to, or owned by a contractor or a manufacturing firm with departments or design offices offering services as consultants unless such Consultant includes relevant information on such relationships along with a statement in the Technical Proposal cover letter to the effect that the Consultant shall limit its role to that of a consultant and disqualify itself and its associates from work in any other capacity that may emerge from the Project (including bidding for any part of the future project except for bidding of an Operations and Maintenance Independent Consultant for the project). The contract with the Consultant selected to undertake the Project shall contain an appropriate provision to such effect; or

(c) If there is a conflict among consulting projects, the Consultant (including its personnel and subcontractors) and any subsidiaries or entities controlled by such Consultant shall not be recruited for the relevant project. The duties of the Consultant depend on the circumstances of each case. While continuity of consulting services may be appropriate in particular situations where no conflict exists, a Consultant cannot be recruited to carry out a project that, by its nature, shall result in conflict with a prior or current project of such Consultant. Examples of the situations mentioned are when a Consultant engaged to prepare engineering design for an infrastructure project shall not be recruited to prepare an independent environmental assessment for the same project; similarly, a Consultant assisting a Procuring Entity in privatization of public assets shall not purchase, nor advise purchasers, of such assets; or a Consultant hired to prepare TOR for a project shall not be recruited for the project in question.

2.2 Consultants shall not be related to the Head of the Procuring Entity, members of the BAC, the TWG, and the BAC Secretariat, the head of the Project Management Office (“PMO”) or the end-user unit, and the project consultants, by consanguinity or affinity up to the third civil degree. The prohibition shall apply as follows:

(a) If the Consultant is an individual or sole proprietorship, then to himself;

(b) If the Consultant is a partnership, then to all its officers and members;

(c) If the Consultant is a corporation, then to all its officers, directors and controlling stockholders; or

(d) If the Consultant is a JV, the provisions of items (a), (b), or (c) of this Section shall correspondingly apply to each of the members of the said joint venture, as may be appropriate.

Relationship of the nature described above or a failure to comply with the provisions of this clause will result in the rejection of the Consultant‟s bid.


2.3 Subject to the provisions of ITO Clause 2, any previous or ongoing participation by the Consultant, its professional staff, or its affiliates or associates under a contract with the Funding Source or the Procuring Entity in relation to this Project may result in the rejection of its proposal. Consultants should clarify their situation in that respect with the Procuring Entity before preparing its proposal

2.4 Failure by a Consultant to fully disclose potential conflict of interest at the time of proposal submission, or at a later date in the event that the potential conflict arises after such date, shall result in the Procuring Entity and/or the Funding Source seeking the imposition of the maximum administrative, civil and criminal penalties up to and including imprisonment.

2.5 Consultants are discouraged to include officials and employees of the Government of the Philippines (GOP) as part of its personnel. Participation of officials and employees of the GOP in the Project shall be subject to existing rules and regulations of the Civil Service Commission.

2.6 Fairness and transparency in the selection process require that Consultants do not derive unfair competitive advantage from having provided consulting services related to the Project in question. To this end, the Procuring Entity shall make available to all the short listed consultants together with the Negotiation Documents all information that would in that respect give each Consultant a competitive advantage.

All firms and/or their consortia engaged for the Consulting Services for the Manila LRT Line 1 Extension, Operations and Maintenance Project are hereby declared ineligible and disqualified to participate in the procurement for the services of an Independent Consultant for the Southwest Integrated Transport System PPP Project.

2.7 Offerors are required to accomplish a Commitment and Undertaking Statement on future conflict of interest. The winning Offeror will not enter into any future relationship or contract relative to or in connection with the Project which would have to be passed upon, reviewed and certified to by the Independent Consultant for the Project except for the procurement of an Operations and Maintenance Independent Consultant for the project.

3. Corrupt, Fraudulent, Collusive, and Coercive Practices

3.1 The Procuring Entity as well as the Consultants shall observe the highest standard of ethics during the procurement and execution of the contract. In pursuance of this policy, the Procuring Entity:

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

(i) “corrupt practice” means behavior on the part of officials in the public or private sectors by which they improperly and unlawfully enrich themselves, others, or induce others to do so, by misusing the position in which they are placed, and includes the offering, giving, receiving, or soliciting of anything of value to influence the action of any such official in the procurement process or in contract


execution; entering, on behalf of the GOP, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby, and similar acts as provided in Republic Act 3019.

(ii) “fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Procuring Entity, and includes collusive practices among Offerors (prior to or after proposal submission) designed to establish bid prices at artificial, non-competitive levels and to deprive the Procuring Entity of the benefits of free and open competition.

(iii) “collusive practices” means a scheme or arrangement between two or more Offerors, with or without the knowledge of the Procuring Entity, designed to establish bid prices at artificial, non-competitive levels.

(iv) “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 Offeror recommended for award has engaged in any of the practices mentioned in this Clause for purposes of competing for the contract.

3.2 Further, the Procuring Entity will seek to impose the maximum civil, administrative, and/or criminal penalties available under applicable laws on individuals and organizations deemed to be involved in any of the practices mentioned in ITO Clause 3.1(a).

3.3 Furthermore, the Funding Source and the Procuring Entity reserve the right to inspect and audit records and accounts of a Consultant in the negotiations for and performance of a contract themselves or through independent auditors as reflected in the GCC Clause 51.

4. Consultant’s Responsibilities

4.1 The Consultant or its duly authorized representative shall submit a sworn statement in the form prescribed in Section VII. Negotiation Forms as required in ITO Clause 10.2(c).

4.2 The Consultant is responsible for the following:

(a) Having taken steps to carefully examine all of the Negotiation Documents;

(b) Having acknowledged all conditions, local or otherwise, affecting the implementation of the contract;

(c) Having made an estimate of the facilities available and needed for this Project, if any;


(d) Having complied with its responsibility to inquire or secure Supplemental/Negotiation Bulletin/s as provided under ITO Clause 8.3.

(e) Ensuring that it is not “blacklisted” or barred from bidding by the GOP or any of its agencies, offices, corporations, or LGUs, including foreign government/foreign or international financing institution whose blacklisting rules have been recognized by the GPPB;

(f) Ensuring that each of the documents submitted in satisfaction of the negotiation requirements is an authentic copy of the original, complete, and all statements and information provided therein are true and correct;

(g) Authorizing the Head of the Procuring Entity or its duly authorized representative/s to verify all the documents submitted;

(h) Ensuring that the signatory is the duly authorized representative of the Offeror, and granted full power and authority to do, execute and perform any and all acts necessary and/or to represent the Offeror in the bidding, with the duly notarized Secretary‟s Certificate attesting to such fact, if the Offeror is a corporation, partnership, cooperative, or joint venture;

(i) Complying with the disclosure provision under Section 47 of the Act in relation to other provisions of Republic Act 3019; and

(j) Complying with existing labor laws and standards, if applicable.

Failure to observe any of the above responsibilities shall be at the risk of the Consultant concerned.

4.3 It shall be the sole responsibility of the prospective Offeror to determine and to satisfy itself by such means as it considers necessary or desirable as to all matters pertaining to this Project, including: (a) the location and the nature of the contract, project, or work; (b) climatic conditions; (c) transportation facilities; (c) nature and condition of the terrain, geological conditions at the site communication facilities, requirements, location and availability of construction aggregates and other materials, labor, water, electric power and access roads; and (d) other factors that may affect the cost, duration and execution or implementation of the contract, project, or work.

4.4 The Procuring Entity shall not assume any responsibility regarding erroneous interpretations or conclusions by the Consultant out of the data furnished by the Procuring Entity.

4.5 Before submitting their bids, the Consultants are deemed to have become familiar with all existing laws, decrees, ordinances, acts and regulations of the GOP which may affect the contract in any way.

4.6 The Consultant shall bear all costs associated with the preparation and submission of his bid, and the Procuring Entity will in no case be responsible or liable for those costs, regardless of the conduct or outcome of the negotiation process.


4.7 Consultants should note that the Procuring Entity will only accept proposals only from those that have paid the nonrefundable fee for the Negotiation Documents at the office indicated in the Invitation to Offerors to Negotiate.

5. Origin of Associated Goods

Unless otherwise indicated in the NDS, there is no restriction on the origin of Goods other than those prohibited by a decision of the United Nations Security Council taken under Chapter VII of the Charter of the United Nations.

6. Subcontracts

6.1 Unless otherwise specified in the NDS, the Consultant may subcontract portions of the Consulting Services to an extent as may be approved by the Procuring Entity and stated in the NDS. However, subcontracting of any portion shall not relieve the Consultant from any liability or obligation that may arise from the contract for this Project.

6.2 Subcontractors must comply with the eligibility criteria and the documentary requirements specified in the NDS. In the event that any subcontractor is found by the Procuring Entity to be ineligible, the subcontracting of such portion of the Consulting Services shall be disallowed.

6.3 The Consultant may identify the subcontractor to whom a portion of the Consulting Services will be subcontracted at any stage of the negotiation process or during contract implementation. If the Consultant opts to disclose the name of the subcontractor during bid submission, the Consultant shall include the required documents as part of the technical component of its bid.

B. Contents of Negotiation Documents

7. Pre-Negotiation Conference

7.1 If so specified in the NDS, a Pre-Negotiation conference shall be held at the venue and on the date indicated therein, to clarify and address the Consultants‟ questions on the technical and financial components of this Project.

7.2 Interested Offerors are encouraged to attend the Pre-Negotiation Conference to ensure that they fully understand the Procuring Entity‟s requirements. Non-attendance of the Offeror will in no way prejudice its offer; however, the Offeror is expected to know the changes and/or amendments to the TOR and Instructions to Offerors discussed during the Pre-Negotiation Conference.

7.3 Any statement made at the Pre-Negotiation Conference shall not modify the terms of the TOR and Instruction to Offerors unless such statement is specifically identified in writing as an amendment thereto and issued as a Supplemental/Negotiation Bulletin.

8. Clarifications and Amendments to Negotiation Documents


8.1 Consultants who have purchased the Negotiation Documents may request for clarifications on any part of the Negotiation Documents for an interpretation. Such a request must be in writing and submitted to the Procuring Entity at the address indicated in the NDS at least five (5) calendar days before the deadline set for the submission and receipt of bids.

8.2 Supplemental/Negotiation Bulletins may be issued upon the Procuring Entity‟s initiative for purposes of clarifying or modifying any provision of the Bidding Documents not later than two (2) calendar days before the deadline for the submission and receipt of bids. Any modification to the Negotiation Documents shall be identified as an amendment.

8.3 Any Supplemental/Negotiation Bulletin issued by the Negotiating Team shall also be posted on the Philippine Government Electronic Procurement System (PhilGEPS) and the website of the Procuring Entity concerned, if available. It shall be the responsibility of all Consultants who secure the Negotiation Documents to inquire and secure Supplemental/Negotiation Bulletins that may be issued by the BAC. However, Consultants who have submitted bids before the issuance of the Supplemental/Negotiation Bulletin must be informed and allowed to modify or withdraw their bids in accordance with ITO Clause 20.

C. Preparation of Proposals

9. Language of Proposals

The Proposal, as well as all correspondence and documents relating to the bid exchanged by the Consultant and the Procuring Entity, shall be written in English. Supporting documents and printed literature furnished by the Consultant may be in another language provided they are accompanied by an accurate translation in English certified by the appropriate embassy or consulate in the Philippines, in which case the English translation shall govern, for purposes of interpretation of the proposal.

10. Documents Comprising the Offer/Proposal: Technical Proposal

10.1. While preparing the Technical Proposal, Consultants must give particular attention to the following:

(a) The Technical Proposal shall not include any financial information. Any Technical Proposal containing financial information shall be declared non-responsive.

(b) For projects on a staff-time basis, the estimated number of professional staff-months specified in the NDS shall be complied with. Offers shall, however, be based on the number of professional staff-months estimated by the Consultant.

(c) Proposed professional staff must, at a minimum, have the experience indicated in the NDS, preferably working under conditions similar to those prevailing in the Republic of the Philippines.


(d) No alternative professional staff shall be proposed, and only one Curriculum Vitae (CV) may be submitted for each position.

10.2. The Technical Proposal shall contain the following information/documents:

(a) Offer security as prescribed in ITO Clause 15. If the Offeror opts to submit the bid security in the form of:

(i) a bank draft/guarantee or an irrevocable Letter of Credit issued by a foreign bank, it shall be accompanied by a confirmation from a Universal or Commercial Bank; or

(ii) a surety bond accompanied by a certification coming from an authorized Insurance Commission that a surety or insurance company is authorized to issue such instrument.

(b) Information indicated in the paragraphs below must be provided by the Consultant and each partner and/or subcontractor, if any, following the formats described in the TOR:

(i) A brief description of the organization and outline of recent experience of the Consultant and each partner and/or subcontractor on projects of a similar and related nature as required in form TPF 2. Consultant‟s References. For each project, the outline should indicate inter alia, the project, contract amount and the Consultant‟s involvement. Information should be provided only for those projects for which the Consultant was legally contracted by itself or as one of the major participating consultants within an association. Whenever applicable, the experience of individual experts from projects completed independently or when associated with consultants other than the one with whom the individual is currently associated with cannot be claimed as the experience of the current consultant or any one of its partners and/or subcontractors, but can be claimed by the individuals themselves in their CVs. Consultants should be prepared to substantiate the claimed experience if so requested by the Procuring Entity.

(ii) A concise, complete, and logical description of how the Consultant shall carry out the services to meet all requirements of the TOR.

(iii) A work plan showing in graphical format (bar chart) the timing of major activities, anticipated coordination meetings, and deliverables such as reports required under the TOR.

(iv) A Time Schedule (TPF 7. Time Schedule for Professional Personnel) indicating clearly the estimated duration in terms of person-months (shown separately for work in the field and in the home office) and the proposed timing of each input for each nominated expert, including domestic experts, if required, using the format shown. The schedule shall also indicate when experts


are working in the project office and when they are working at locations away from the project office.

(v) An organization chart indicating relationships amongst the Consultant and any partner and/or subcontractor, the Procuring Entity, the Funding Source and the GOP, and other parties or stakeholders, if any, involved in the project.

(vi) Comments, if any, on the TOR (TPF 3. Comments and Suggestions of Consultant on the Terms of Reference and on Data, Services, and Facilities to be Provided by the Procuring Entity) to improve performance in carrying out the Project. Innovativeness shall be appreciated, including workable suggestions that could improve the quality/effectiveness of the Project. In this regard, unless the Consultant clearly states otherwise, it shall be assumed by the Procuring Entity that work required to implement any such improvements, are included in the inputs shown on the Consultant‟s Staffing Schedule.

(vii) A list of facilities requested by the Consultant to be provided by the Procuring Entity in addition to those shown on the Data Sheet that may include support facilities such as: counterpart staff, office space, local transportation, equipment, domestic administrative support, etc. that would be needed to carry out the project.

(viii) The name, age, nationality, background employment record, and professional experience of each nominated expert including ongoing projects, with particular reference to the type of experience required for the tasks assigned should be presented in the CV format shown in TPF 6. Format of Curriculum Vitae (CV) for Proposed Professional Staff.

(ix) Only one CV for each consultant involved in the Project may be submitted for each position.

(x) The Procuring Entity requires that each expert confirm that the content of his/her CV is correct and the experts themselves should sign the certification of the CV. In addition, the expert should submit a signed written commitment stating that the expert shall work for the Project once awarded the contract. A zero rating shall be given to a nominated expert if the expert:

(x.1) is proposed for a domestic position but is not a Filipino citizen;

(x.2) failed to state nationality on the CV; or

(x.3) the CV is not signed in accordance with paragraph (x) above.


(c) Sworn statement in accordance with Section 25.2(b)(iv) of the IRR of RA 9184 and using the form prescribed in Section VII. Negotiation Forms.

11. Documents Comprising the Offer/Proposal: Financial Proposal

11.1 All information provided in a Consultant‟s Financial Proposal shall be treated as confidential. The Financial Proposal must be submitted in hard copy using the format shown in Financial Proposal Forms.

11.2 The Financial Proposal requires completion of six (6) forms, particularly, FPF 1, FPF 2, FPF 3, FPF 4, FPF 5, and FPF 6. FPF 1. Financial Proposal Submission Form should form the covering letter of the Financial Proposal. Form FPF 2. Summary Costs, FPF 3. Breakdown of Price per Activity, FPF 4. Breakdown of Remuneration per Activity, FPF 5. Reimbursables per Activity, and FPF 6. Miscellaneous Expenses, relate to the costs of consulting services under two distinct categories, namely: (a) Remuneration; and (b) Reimbursable Expenditures.

11.3 Remuneration is divided into billing rate estimates for international and domestic consultants. Reimbursable Expenditures are divided into per diem rates for international and domestic consultants and costs for other reimbursable expenditure items required to perform the consulting services.

11.4 The list of experts, and their respective inputs, identified in Financial Proposal Forms, must match the list of experts and their respective inputs shown in Technical Proposal Forms.

11.5 The Consultant shall be subject to Philippine taxes on amounts payable by the Procuring Entity under the contract through mandated withholding by local tax authorities of specified percentages of such amounts or otherwise. The NDS details the taxes payable.

11.6 The Financial Proposal should clearly estimate, as a separate amount, the local taxes (including social security), duties, fees, levies, and other charges imposed under the applicable law, on the Consultants, the subcontractors, and its personnel (other than Philippine Nationals or permanent residents of the Philippines).

11.7 Unless otherwise provided in the NDS, total calculated proposal prices, as evaluated and corrected for minor arithmetical corrections, such as computational errors, which exceed the approved budget for the contract (ABC) shall not be considered.

12. Alternative Proposals

Consultants shall submit only one proposal/offer and shall not associate with any other entity other than those already provided in its eligibility documents and allowed by the Procuring Entity.

13. Financial Proposal Currencies


13.1 All financial offer prices shall be quoted in Philippine Pesos unless otherwise provided in the NDS. However, for purposes of financial proposal evaluation, offers denominated in foreign currencies shall be converted to Philippine currency based on the exchange rate prevailing on the day of the opening of proposals.

13.2 If so allowed in accordance with ITO Clause 13.1, the Procuring Entity for purposes of proposal evaluation and comparing the offer prices will convert the amounts in various currencies in which the bid price is expressed to Philippine Pesos at the exchange rate as published in the Bangko Sentral ng Pilipinas (BSP) reference rate bulletin on the day of the bid opening.

13.3 Unless otherwise specified in the NDS, payment of the contract price shall be made in Philippine Pesos.

14. Offer Validity

14.1. Offer shall remain valid for the period specified in the NDS which shall not exceed one hundred twenty (120) calendar days from the date of the opening of proposals.

14.2. In exceptional circumstances, prior to the expiration of theoffer validity period, the Procuring Entity may request Consultants to extend the period of validity of their proposals. The request and the responses shall be made in writing. The offer security described in ITO Clause 15Error! Reference ource not found. should also be extended corresponding to, at least, the extension of the offer validity period. A Consultant may refuse the request, but his proposal shall no longer be considered for further evaluation and award. A Consultant granting the request shall not be required or permitted to modify its proposals.

15. Offer Security

15.1 The offer security, issued in favor of the Procuring Entity, in the amount stated in the NDS shall be equal to the percentage of the ABC in accordance with the following schedule:

Form of Offer Security Amount of Offer Security (Equal to Percentage of the ABC)

a) Cash or cashier‟s/manager‟s check issued by a Universal or Commercial Bank.

Two percent (2%)

b) Bank draft/guarantee or irrevocable letter of credit issued by a Universal or Commercial Bank: Provided, however, that it shall be confirmed or authenticated by a Universal or Commercial Bank, if issued by a foreign bank.

c) Surety bond callable upon Five percent (5%)


demand issued by a surety or insurance company duly certified by the Insurance Commission as authorized to issue such security.

d) Any combination of the foregoing.

Proportionate to share of form with respect to total amount of security

For negotiations conducted by LGUs, the Consultant may also submit offer securities in the form of cashier‟s/manager‟s check, bank draft/guarantee, or irrevocable letter of credit from other banks certified by the BSP as authorized to issue such financial statement.

15.2 The offer security should be valid for the period specified in the NDS. Any offer not accompanied by an acceptable offer security shall be rejected by the Procuring Entity as non-responsive.

15.3 No offer securities shall be returned to the Consultants after the opening of proposals and before contract signing, except to those that failed or declared as post-disqualified, upon submission of a written waiver of their right to file a motion for reconsideration and/or protest. Without prejudice on its forfeiture, bid securities shall be returned only after the Offeror with the Lowest Calculated and Responsive Offer has signed the contract and furnished the performance security, but in no case later than the expiration of the bid security validity period indicated in ITO Clause 15.2.

15.4 Upon signing and execution of the contract pursuant to ITO Clause 33, and the posting of the performance security pursuant to ITO Clause 34, the Consultant‟s offer security will be discharged, but in no case later than the offer security validity period as indicated in ITO Clause 15.2.

15.5 The offer security may be forfeited:

(a) if a Consultant:

(i) withdraws its bid during the period of bid validity specified in ITO Clause 15.2;

(ii) does not accept the correction of errors pursuant to ITO Clause 11.6;

(iii)fails to submit the requirements within the prescribed period or a finding against their veracity as stated in ITO Clause 29.2; or

(iv) any other reason stated in the NDS.

(b) if the successful Consultant:

(i) fails to sign the contract in accordance with ITO Clause 33;


(ii) fails to furnish performance security in accordance with ITO Clause 34;or

(iii)any other reason stated in the NDS.

16. Format and Signing of Offers/Proposals

16.1. Offerors shall submit their offers/proposals through their duly authorized representative using the appropriate forms provided in Section VII: Negotiation Forms on or before 19 October at 10:00 a.m. specified in the NDS and ITO Clause 17 in two (2) separate sealed bid envelopes, and which shall be submitted simultaneously. The first envelope shall contain the Eligibility Documents and Technical Proposal while the second envelope shall contain the Financial Proposal.

16.2. The Consultant shall prepare an original of the first and second envelopes as described in ITO Clauses 10 and 11. In addition, the Consultant shall submit copies of the first and second envelopes. In the event of any discrepancy between the original and the copies, the original shall prevail.

16.3. The offer, except for unamended printed literature, shall be signed, and each and every page thereof shall be initialed, by the duly authorized representative/s of the Consultant.

16.4. Any interlineations, erasures, or overwriting shall be valid only if they are signed or initialed by the duly authorized representative/s of the Consultant.

16.5. Defects as to the form (i.e. sealing and marking of proposals) may be waived by the Procuring Entity. If proposals are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the Proposal.

17. Sealing and Marking of Offers

17.1. Unless otherwise indicated in the NDS, Consultants shall enclose their original technical proposal described in ITO Clause 10, in one sealed envelope marked “ORIGINAL - TECHNICAL PROPOSAL”, and the original of their financial proposal in another sealed envelope marked “ORIGINAL - FINANCIAL PROPOSAL”, sealing them all in an outer envelope marked “ORIGINAL BID”.

17.2. Each copy of the first and second envelopes shall be similarly sealed duly marking the inner envelopes as “COPY NO. ___ - TECHNICAL PROPOSAL” and “COPY NO. ___ – FINANCIAL PROPOSAL” and the outer envelope as “COPY NO. ___”, respectively. These envelopes containing the original and the copies shall then be enclosed in one single envelope.

17.3. The original and the number of copies of the offer as indicated in the NDS shall be typed or written in indelible ink and shall be signed by the Offeror or its duly authorized representative/s.


17.4. All envelopes shall:

(a) contain the name of the contract to be negotiated in capital letters;

(b) bear the name and address of the Consultant in capital letters;

(c) be addressed to the Procuring Entity‟s BAC identified in the NDS;

(d) bear the specific identification of this procurement process indicated in the Invitation to Offerors to ; and

(e) bear a warning “DO NOT OPEN BEFORE…” the date and time for the opening of bids, in accordance with ITO Clause 18.

17.5. If offers are not sealed and marked as required, the Procuring Entity will assume no responsibility for the misplacement or premature opening of the proposals.

17.6. Defects as to form or in relation to this Clause may be waived by the Procuring Entity.

D. Submission of Offers

18. Deadline for Submission of Offers

Offers must be received by the Procuring Entity‟s BAC at the address and on or before the date and time indicated in the NDS.

19. Late Offers

Any offer submitted after the deadline for submission and receipt of offers prescribed by the Procuring Entity, pursuant to ITO Clause 18, shall be declared “Late” and shall not be accepted by the Procuring Entity.

20. Modification and Withdrawal of Offers/Proposals

20.1. The Consultant may modify its proposal after it has been submitted; provided that the modification is received by the Procuring deadline Entity prior to the prescribed for submission and receipt of proposals. The Consultant shall not be allowed to retrieve its original proposal, but shall be allowed to submit another proposal equally sealed, properly identified, linked to its original proposal marked as “TECHNICAL MODIFICATION” or “FINANCIAL MODIFICATION” and stamped “received” by the BAC Secretariat. Proposal modifications received after the applicable deadline shall not be considered and shall be returned to the Consultant unopened.

20.2. A Consultant may, through a letter of withdrawal, withdraw its bid after it has been submitted, for valid and justifiable reason; provided that the letter of withdrawal is received by the Procuring Entity prior to the deadline prescribed for submission and receipt of proposals.


20.3. Proposals requested to be withdrawn in accordance with ITO Clause 20.1 shall be returned unopened to the Consultants. A Consultant may also express its intention not to participate in the negotiations through a letter which should reach and be stamped by the BAC Secretariat before the deadline for submission and receipt of proposals. A Consultant that withdraws its proposal shall not be permitted to submit another proposal, directly or indirectly, for the same contract.

20.4. Proposals may be modified only after the opening and preliminary evaluation of the “First Envelope” containing the Eligibility documents and Technical proposals pursuant to ITO Clause 26.1. During the preliminary evaluation, the Procuring Entity shall evaluate the completeness of an Offeror‟s proposal against a checklist of required documents and shall issue a notice to an Offeror if its proposal has failed to include any requirement or are incomplete or patently insufficient. The aforementioned Offeror shall be given three (3) calendar days from notice to submit the required document or to cure any defect in the submission.

20.5. No proposals may be withdrawn in the interval between the deadline for submission of proposals and the expiration of the period of offer validity specified by the Consultant on the Financial Proposal Form. Withdrawal of a proposal during this interval shall result in the forfeiture of the Consultant‟s offer security, pursuant to ITO Clause 15.5, and the imposition of administrative, civil, and criminal sanctions as prescribed by R.A. 9184 and its IRR.

21. Eligibility, Technical and Financial Components

21.1 A Proposal of an Offeror containing the Eligibility Documents and Technical Proposal (“First Envelope”) and the Financial Proposal (“Second Envelope”) must be received by the Procuring Entity‟s Bids and Awards Committee (BAC) Secretariat on or before 19 October 2015 at 10:00 a.m. through the BAC Secretariat at Unit 153, 15th Floor, The Columbia Tower, Ortigas Avenue, Mandaluyong City. Any Proposal submitted after the deadline for submission and receipt of the Proposal shall be declared “late” and shall not be accepted by the Procuring Entity.

21.2 An eligible Offeror who passed the eligibility and technical requirements will be invited to witness the opening of its Proposal containing the Financial Component (“Second Envelope”). Any Proposal submitted after the deadline for submission and receipt of the Proposal shall be declared “late” and shall not be accepted by the Procuring Entity.

22. Authorized Representative

22.1 Offerors shall submit their proposals through their duly authorized representative.

E. Opening, Evaluation and Comparison of Offers

23. Process to be Confidential


23.1. Members of the BAC, including its staff and personnel, as well as its Secretariat and Negotiating Team, are prohibited from making or accepting any kind of communication with any Consultant regarding the evaluation of their proposals until the issuance of the Notice of Award, unless otherwise allowed in the NDS or in the case of ITO Clause 25.

23.2. Any effort by an Offeror to influence the Procuring Entity in the Procuring Entity‟s decision in respect of proposal evaluation, proposal comparison or contract award will result in the rejection of the Consultant‟s proposal.

24. Clarification of Offers

24.1 To assist in the evaluation, comparison and post-qualification of the proposals, the Procuring Entity may ask in writing any Consultant for a clarification of its proposal. All responses to requests for clarification shall be in writing. Any clarification submitted by a Consultant in respect to its proposal and that is not in response to a request by the Procuring Entity shall not be considered.

25. Proposal Evaluation

25.1. The entire evaluation process, including the submission of the results thereof to the Head of the Procuring Entity for approval, shall be completed in not more than twenty-one (21) calendar days after the deadline for receipt of proposals. The offer with the highest rank shall be identified as the Highest Rated Offer. The Head of the Procuring Entity shall approve or disapprove the recommendations of the BAC within two (2) calendar days after receipt of the results of the evaluation from the BAC.

25.2. All participating and eligible consultants shall be furnished the results (ranking and total scores only) of the evaluation after the approval by the Head of the Procuring Entity of the ranking. Said results shall also be posted in the PhilGEPS and the website of the Procuring Entity, if available, for a period of not less than seven (7) calendar days.

26. Opening and Preliminary Evaluation of the Eligibility Documents

26.1. The Negotiating Team shall open the First Envelope of Offeror/s to determine each Offeror‟s compliance with the Eligibility Documents and Technical Proposal prescribed in the NDS and ITO Clause 10. For this purpose, the Negotiating Team shall check the submitted documents of each Offeror against a checklist of required documents to ascertain if they are all present. If an Offeror submits the required document, it shall be rated “passed” for that particular requirement. In this regard, proposals that fail to include any requirement or are incomplete or patently insufficient shall be given three (3) calendar days from notice to submit the required document or to cure any defect in the submission. Failure to submit the required Eligibility and Technical documents in the First Envelope within the said period shall be rated “failed”. Otherwise, the Negotiating Team shall rate the said First Envelope as “passed”.


26.2. To assist in the evaluation, comparison and post-qualification of the proposals, the Procuring Entity may ask in writing any Consultant for a clarification of its proposal. All responses to requests for clarification shall be in writing. Any clarification submitted by a Consultant in respect to its proposal and that is not in response to a request by the Procuring Entity shall not be considered.

26.3. All Offerors shall be furnished the results (ranking and total scores only) of the evaluation.

27. Opening and Evaluation of Technical Proposal

27.1. The Procuring Entity shall conduct a detailed evaluation of technical proposals following the procedures identified in the NDS depending on the evaluation procedure identified in the Invitation to Offerors to Negotiate.

27.2. The Negotiating Team evaluates the Technical Proposals on the basis of their compliance with the requirements under the NDS and TOR using the following criteria:

(a) Quality of personnel to be assigned to the Project which covers suitability of Key Personnel to perform the duties for the Project and general qualifications and competence including education and training of the Key Personnel;

(b) Experience and capability of the CONSULTANT which include records of previous engagement and quality of performance in similar and in other projects; relationship with previous and current clients; and, overall work commitments, geographical distribution of current/impending projects and attention to be given by the consultant. The suitability of the CONSULTANT to the Project shall consider both the overall experiences of the firm and the individual experiences of the principal and Key Personnel including the times when employed by other consultants; and

(c) Plan of approach and methodology with emphasis on clarity, feasibility, innovativeness and comprehensiveness of the plan of approach, and the quality of interpretation of project problems, risks and suggested solutions.

27.3. The Negotiating Team shall assign numerical weights to each of the above criteria which shall be indicated in the NDS. If an Offeror nominates a CONSULTANT who satisfies the minimum eligibility requirements, the nominated CONSULTANT shall be assigned a numerical score as prescribed in the technical evaluation score sheet.

If the nominated CONSULTANT of an Offeror does not satisfy the minimum experience requirement in years, the Negotiating Team shall request for a candidate who will meet the said requirement. In this regard, the Offeror shall be given three (3) calendar days from notice to replace their original candidate and submit the curriculum vitae of the replacement CONSULTANT to cure


any defect in the submission. Failure to replace the CONSULTANT within the said period shall disqualify the Offeror.

An Offer shall be rejected at this stage if it does not respond to important aspects of the TOR or if it fails to achieve the minimum Technical Score (St) indicated in the NDS.

27.4. Technical Proposals shall not be considered for evaluation in any of the following cases:

(a) late submission, i.e., after the deadline set in the Invitation to Offerors to Negotiate;

(b) failure to submit any of the technical requirements and/or to address or cure the defects or absence in any of the technical requirements provided under this ITO and TOR;

(c) the Consultant that submitted an Offer or any of its partner and/or subcontractor belongs to one of the conflict of interest cases as described in ITO Clause 2 and failed to make a proper statement to that effect in the cover letter; or

(d) the Technical Proposal included any cost of the services.

28. Opening and Evaluation of Financial Proposal

28.1. The Financial Proposal shall be opened on the date indicated in the NDS.

28.2. The Financial Proposals opened shall be evaluated based on the evaluation procedure indicated in the NDS using the corresponding procedure provided therein.

29. Negotiations

29.1. Negotiations shall be held at the address indicated in the NDS. The aim is to reach agreement on all points.

29.2. Negotiations shall cover the following:

(a) Discussion and clarification of the TOR and Scope of Services;

(b) Discussion and finalization of the methodology and work program proposed by the Consultant;

(c) Discussion on the services, facilities and data, if any, to be provided by Procuring Entity concerned;

(d) Unless otherwise indicated in the NDS, discussion on the Financial Proposal submitted by the Consultant; and

(e) Provisions of the Contract.


29.3. Having selected the Consultant on the basis of, among other things, an evaluation of the proposed Key Personnel, the Procuring Entity expects to negotiate a contract on the basis of the experts named in the proposal. Before contract negotiations, the Procuring Entity shall require assurances that the experts shall be actually available. The Procuring Entity shall not consider substitutions other than for reasons of death or illness unless both parties agree that undue delay in the selection process makes such substitution unavoidable or that such changes are critical to meet the objectives of the Project. If this is not the case and if it is established that Key Personnel were offered in the proposal without confirming their availability, the Consultant may be disqualified.

29.4. Negotiations shall include a discussion of the technical proposal, the proposed methodology (work plan), staffing and any suggestions made by the Consultant to improve the TOR. The Procuring Entity and Consultant shall then work out the final TOR, staffing, and bar charts. The agreed work plan and final TOR shall then be incorporated in Appendix I and form part of the contract. Special attention shall be paid to getting the most the Consultant can offer within the available budget and to clearly defining the inputs required from the Procuring Entity to ensure satisfactory implementation of the Project.

29.5. The financial negotiations shall include a clarification of the Consultant‟s tax liability in the Philippines, if any, and the manner in which it shall be reflected in the contract; and shall reflect the agreed technical modifications in the cost of the services. The negotiations shall conclude with a review of the draft form of the contract. To complete negotiations, the Procuring Entity and the Consultant shall initial the agreed contract. If negotiations fail, the Procuring Entity shall invite the Consultant whose Offer received the second highest score to negotiate a contract. If negotiations still fail, the Procuring Entity shall repeat the process for the next-in-rank Consultant until the negotiation is successfully completed.

30. Post Qualification

30.1. The Procuring Entity shall determine to its satisfaction whether the Consultant that is evaluated as having submitted the Highest Rated Offer (HRO) complies with and is responsive to all the requirements and conditions specified in the Eligibility Documents and ITO Clauses 1.8, 10 and 11.

30.2. Within a non-extendible period of three (3) calendar days from receipt by the Consultant of the notice from the Negotiating Team that it is the HRO, the Consultant shall submit the following documentary requirements:

(a) Latest income and business tax returns in the form specified in the NDS;

(b) Certificate of PhilGEPS Registration, provided that participating Offerors should register with the PHILGEPS prior to opening of proposals; and

(c) Other appropriate licenses and permits required by law and stated in the NDS.


Failure of the Consultant declared as HRO to duly submit the requirements under this Clause or a finding against the veracity of such, shall be ground for disqualification of the Consultant for award.

30.3. The determination shall be based upon an examination of the documentary evidence of the Consultant‟s qualifications submitted pursuant to Clauses 1.8, 10 and 11, as well as other information as the Procuring Entity deems necessary and appropriate, using a non-discretionary “pass/fail” criterion.

30.4. If the BAC through the Negotiating Team determines that the Consultant with the HRO passes all the criteria for post-qualification, it shall declare the said proposal as the Consultant with the Highest Rated and Responsive Offer (HRRO), and recommend to the Head of the Procuring Entity the award of contract to the said Consultant at its submitted price or its calculated proposal price, whichever is lower, subject to Clause 34.3.

30.5. A negative determination shall result in rejection of the Consultant‟s proposal, in which event the Procuring Entity shall proceed to the next HRO to make a similar determination of that Consultant‟s capabilities to perform satisfactorily. If the second Consultant, however, fails the post qualification, the procedure for post qualification shall be repeated for the Consultant with the next HRO, and so on until the HRRO is determined for contract award.

30.6. Within a period not exceeding seven (7) calendar days from the date of receipt of the recommendation of the BAC, the Head of the Procuring Entity shall approve or disapprove the said recommendation.

31. Reservation Clause

31.1. Notwithstanding the eligibility, or post-qualification of a Consultant, the Procuring Entity concerned reserves the right to review its qualifications at any stage of the procurement process if it has reasonable grounds to believe that a misrepresentation has been made by the said Consultant, or that there has been a change in the Consultant‟s capability to undertake this Project from the time it submitted its eligibility requirements. Should such review uncover any misrepresentation made in the eligibility and negotiation requirements, statements or documents, or any changes in the situation of the Consultant which will affect its capability to undertake the project so that it fails the preset eligibility or proposal evaluation criteria, the Procuring Entity shall consider the said Consultant as ineligible and shall disqualify it from submitting a proposal or from obtaining an award or contract.

31.2. Based on the following grounds, the Procuring Entity reserves the right to reject any and all offers, declare a failure of negotiation at any time prior to the contract award, or not to award the contract, without thereby incurring any liability, and make no assurance that a contract shall be entered into as a result of the negotiation:

(a) if there is prima facie evidence of collusion between appropriate public officers or employees of the Procuring Entity, or between the Negotiating Team and any of the Offerors, or if the collusion is between


or among the Offerors themselves, or between a Offeror and a third party, including any act which restricts, suppresses or nullifies or tends to restrict, suppress or nullify competition;

(b) if the Procuring Entity‟s Negotiating Team is found to have failed in following the prescribed negotiation procedures; or

(c) for any justifiable and reasonable ground where the award of the contract will not redound to the benefit of the GOP as follows:

(i) If the physical and economic conditions have significantly changed so as to render the project no longer economically, financially or technically feasible as determined by the head of the procuring entity;

(ii) If the project is no longer necessary as determined by the Head of the Procuring Entity; and

(iii) If the source of funds for the project has been withheld or reduced through no fault of the Procuring Entity.

31.3. In addition, the Procuring Entity may likewise declare a failure of negotiations when:

(a) No offers are received;

(b) All prospective Offerors are declared ineligible;

(c) All offers fail to comply with all the requirements or fail post-qualification; or

(d) The offer with the HRRO refuses, without justifiable cause to accept the award of contract, and no award is made.

F. Award of Contract

32. Contract Award

32.1. Subject to ITO Clause 31, the Procuring Entity shall award the contract to the Offeror whose proposal has been determined to be the HRRO.

32.2. Prior to the expiration of the period of bid validity, the Procuring Entity shall notify the successful Consultant in writing that its offer has been accepted, through a Notice of Award received personally or sent by registered mail or electronically, receipt of which must be confirmed in writing within two (2) days by the Consultant with the HRRO and submitted personally or sent by registered mail or electronically to the Procuring Entity.

32.3. Notwithstanding the issuance of the Notice of Award, award of contract shall be subject to the following conditions:


(a) Submission of the valid JVA, if applicable, within three (3) calendar days from receipt by the Consultant of the notice from the BAC that the Consultant has the HRRO;

(b) Posting of the performance security in accordance with ITO Clause 34;

(c) Signing of the contract as provided in ITO Clause 33; and

(d) Approval by higher authority, if required.

32.4. Notwithstanding the approval of the multiyear contract, it is understood that the agency may only be held liable for the payment of obligations incurred for that portion of the contract covered by authorized appropriations for the program, activity or project herein described. It commits, however, to include the funding requirements for the remaining portions of the contract in its annual budget proposals until the program, activity or project is completed.

33. Signing of the Contract

33.1. At the same time as the Procuring Entity notifies the successful Offeror that its proposal has been accepted, the Procuring Entity shall send the Contract Form to the Offeror, which contract has been provided in the TOR, incorporating therein all agreements between the parties.

33.2. Within three (3) calendar days from receipt of the Notice of Award, the successful Offeror shall post the required performance security and sign and date the contract and return it to the Procuring Entity.

33.3. The Procuring Entity shall enter into contract with the successful Offeror within the same three (3) calendar day period provided that all the documentary requirements are complied with.

33.4. The following documents shall form part of the contract:

(a) Contract Agreement;

(b) Instructions to Offerors;

(c) Terms of Reference;

(d) Winning Offeror‟s proposal, including the Technical and Financial Proposals, and all other documents/statements submitted;

(e) Performance Security;

(f) Notice of Award of Contract; and

(g) Other contract documents that may be required by existing laws and/or specified in the NDS.

34. Performance Security


34.1. Unless otherwise provided in the NDS, to guarantee the faithful performance by the winning Consultant of its obligations under the contract, it shall post a performance security within a maximum period of three (3) calendar days from the receipt of the Notice of Award from the Procuring Entity and in no case later than the signing of the contract.

34.2. The procuring entity shall prescribe at least two (2) acceptable forms of performance security taken from two (2) categories below that Offeror may opt to use, denominated in Philippine Pesos and posted in favor of the Procuring Entity in an amount equal to the percentage of the total contract price in accordance with the following schedule:

Form of Performance Security Amount of Performance Security (Equal to Percentage of the Total

Contract Price) a. Cash or cashier‟s/manager‟s

check issued by a Universal or Commercial Bank.

Five percent (5%)

b. Bank draft/guarantee or irrevocable letter of credit issued by a Universal or Commercial Bank: Provided, however, that it shall be confirmed or authenticated by a Universal or Commercial Bank, if issued by a foreign bank.

c. Surety bond callable upon demand issued by a surety or insurance company duly certified by the Insurance Commission as authorized to issue such security; and/or

Thirty percent (30%)

d. Any combination of the foregoing.

Proportionate to share of form with respect to total amount of security

34.3. Failure of the successful Consultant to comply with the above-mentioned requirement shall constitute sufficient ground for the annulment of the award and forfeiture of the proposal security, in which event the Procuring Entity shall initiate and complete the post qualification of the second HRO. The procedure shall be repeated until the HRRO is identified and selected for contract award. However if no Consultant passed post-qualification, the BAC shall declare the negotiations a failure and conduct a re-negotiations.

35. Notice to Proceed

35.1. Within three (3) calendar days from the date of approval of the contract by the appropriate government approving authority, the Procuring Entity shall issue its Notice to Proceed to the Consultant.

35.2. The date of the Consultant‟s receipt of the Notice to Proceed will be regarded as the effective date of the contract, unless otherwise specified in the NDS.

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Section III. Negotiation Data Sheet

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Negotiation Data Sheet

ITO Clause

1.1 The Procuring Entity is Department of Transportation and Communications The evaluation procedure is Quality Cost Based Evaluation/Selection (QCBE/QCBS).

1.2 The total budget of the contract is Forty Eight Million Nine Hundred Ninety Two Thousand Nine Hundred Forty Four Pesos (Php 48,992,944.00) to be funded through: 1. Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy

Two Pesos (Php 24,496,472.00) from GAA CY 2015 being the Approved Budget for the Contract; and

2. Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy

Two Pesos (Php 24,496,472.00) to be shouldered by MWM Terminals, Inc Offers received in excess of the ABC shall be automatically rejected at the opening of the financial proposals. The name of the project: “Negotiated Procurement of the Independent Consultant for the Southwest Integrated Transport System PPP Project (Two Failed Biddings)”

1.3 Project Description: Provision of Consulting Services for the Independent Consultant of the Southwest Integrated Transport System PPP Project Consulting services to review the design, review of construction and project management as described in the TOR.

1.4 The Project shall not be phased.

1.8(b) Those that will be practicing regulated professions must be licensed by the appropriate Philippine regulatory body.

For Filipinos, a certified true copy of his Professional Regulation Commission (PRC) license clearly reflecting the license number should be attached to EDF No. 4. Any expired PRC license must be accompanied by proof of submission of application for renewal to PRC. The Offeror must submit a certified true copy of the renewed PRC license during the post-qualification stage in case the Offeror is declared to have the Highest Rated Offer.

Foreign individuals may only be allowed to practice their profession in the Philippines when specifically allowed by law. For professions regulated by the PRC, foreign individuals must obtain the necessary permits. (see: http:www.prc.gov.ph/international/?id=35). In case such permits are not yet available during the date of submission of the Eligibility Documents, these should be submitted during the post-qualification stage if the Offeror is declared to have the

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Highest Rated Offer.

For foreign individuals with their license written in English, a copy of the foreign license and other accompanying documents set out in the NDS should be attached to EDF No. 4.

For foreign individuals with their license written in a foreign language, a copy of the foreign license, an English translation duly certified and other accompanying documents set out in the NDS should be attached to EDF No. 4. Please refer to the website of the Professional Regulation Commission for more information (http://www.prc.gov.ph/default.aspx).

1.8(c) Foreign consultants may participate in this Project, subject to the following qualifications:

a) must be registered with the SEC and/or any agency authorized by the laws of the Philippines;

b) when the types and fields of consulting services in which the foreign consultant wishes to engage involve the practice of regulated professions, the foreign consultant must be authorized by the appropriate GOP professional regulatory body specified in Clause 1.2 to engage in the practice of those professions and allied professions: Provided, however, That the limits of such authority shall be strictly observed.

1.9(a)(i) Eligibility Requirements: Legal Documents

a. Registration Certificate from Securities and Exchange Commission (SEC), Department of Trade and Industry (DTI) for sole proprietorship, or Cooperative Development Authority (CDA) for cooperatives, or any proof of such registration Participant Document to be submitted Philippine firm, sole proprietorship or cooperative

Registration certificate issued by the Philippine SEC, DTI or CDA, as may be appropriate

Foreign firm registered as a corporation, whether participating on its own or through a joint venture

Registration certificate issued by the Philippine SEC or such other Philippine agency allowed by law

Foreign firm registered as a branch office or other local office allowed to be established under Philippine laws, whether participating on its own or through a joint venture

Registration certificate issued by the Philippine SEC or such other Philippine agency allowed by law

Foreign firm not registered Either:

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with the Philippine SEC but participating in a joint venture with Philippine participant(s) - Allowed only if the

foreign participation in the joint venture is 40% or less

1. Foreign equivalent of the registration certificate issued by the foreign firm‟s country; or

2. If there is no appropriate equivalent of the registration certificate in the country of the foreign firm, a certification under oath to that effect.

In case of a joint venture, each joint venture member, including foreign members, must submit a registration certificate or a certification that there is no equivalent of the registration certificate in the country of the foreign firm.

b. Valid and current Mayor’s permit issued by the city or municipality where the principal place of business of the prospective Offeror is located (issued for the year 2015) Participant Document to be submitted Philippine firm, sole proprietorship or cooperative

Mayor‟s permit issued by the appropriate Philippine city or municipality for the year 2015

Foreign firm registered as a corporation


Foreign firm registered as a branch office or other local office allowed to be established under Philippine laws


Foreign firm not registered with the Philippine SEC but participating in a joint venture with Philippine participant(s) - Allowed only if the


Either: 1. Foreign equivalent of

the Mayor‟s permit issued by the city or municipality where the principal place of business of the foreign firm is located for the year 2015; or

2. If there is no appropriate equivalent of the Mayor‟s permit in the country of the foreign firm, a certification under

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oath to that effect.

* In case of a joint venture, each joint venture member, including foreign members, must submit a Mayor‟s permit or a certification that there is no equivalent of the Mayor‟s permit in the country of the foreign firm.

c. Current and valid Tax Clearance per Executive Order No. 398, Series of 2005, as finally reviewed and approved by the BIR Participant Document to be submitted Philippine firm, sole proprietorship or cooperative

Tax clearance reviewed and approved by the Philippine BIR

Foreign firm registered as a corporation


Foreign firm registered as a branch office or other local office allowed to be established under Philippine laws


Foreign firm not registered with the Philippine SEC but participating in a joint venture with Philippine participant(s) - Allowed only if the


Either: 1. Tax clearance; or 2. Delinquency

Verification Certificate* issued by the Philippine BIR

In case of a joint venture, each joint venture member, including foreign members, must submit either a Tax Clearance or a Delinquency Verification Certificate*, as may be appropriate. *Applicable only to Non-Resident Foreign Corporations or Non-Resident Aliens Not Engaged in Trade or Business, in accordance with GPPB NPM 045-2013.

If certified true copies of the above documents are submitted, the certification must be made by the corresponding government agency. However, true copies of the SEC registration certificate, Mayor‟s Permit, Tax Clearance, and the PRC License may be certified by the authorized representative of the firm or JV subject to the general rules stated in Clause 1.9(a)(i) of the NDS and verification during post-qualification.

If the Offeror is a JV, then each of the members of the JV must comply with the submission of the Legal Documents under Clause 1.9(a)(i)(a), 1.9(a)(i)(b) and 1.9(a)(i)(c). For JV, the equity share of each firm should be indicated in the Joint Venture Agreement (JVA) or in the duly notarized statements from all the potential joint venture partners stating that they will enter into and abide by the provisions of the JVA in the instance that the proposal is successful. Failure to comply shall be a ground for disqualification. The JVA shall state that all JV members are jointly and severally liable.

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All documents required to be submitted must be the original or a certified true copy of the original. If certified true copies are submitted, the certification must be made by the corresponding government agency. However, true copies of the SEC registration certificate, Mayor‟s Permit, Tax Clearance, and the PRC License may be certified by the authorized representative of the firm or JV subject to the general rules stated in Clause 1.9 (a)(i) of the NDS and verification during post-qualification.

All documents specifically required to be notarized must be sworn under oath before a notary public or any other public officer duly authorized to administer oaths. If a document is issued or originates outside of the Philippines, it must unless otherwise stated, in addition to being notarized in its place of execution:

a) consularized if it is written in English. b) translated to English if it is not written in English and certified by the

appropriate embassy or consulate in the Philippines. The English translation should also be notarized and consularized if the English translation is prepared outside of the Philippines. If the English translation is prepared in the Philippines, the translation has to be notarized but there is no need to have it consularized.

Consularization should be performed by the Philippine embassy/consulate in the place or nearest the place where the document was issued, executed or where it originated.

If the document issued or originates outside of the Philippines is an official document issued by a foreign Government, any of its departments, agencies, bureaus, offices or instrumentalities, there is no need to have it notarized but it has to be consularized. If the document is not an official document issued by a foreign Government, any of its departments, agencies, bureaus, offices or instrumentalities, such document has to be both notarized and consularized. In case a document is required to be consularized, written evidence that the application for consularization from the concerned Philippine embassy/consulate must be submitted as part of the Eligibility Documents if the consularization is not yet ready prior to the deadline for submission of bids. The Offeror must submit the duly consularized document during the post-qualification stage in case the Offeror is declared to have the highest rated bid and did not submit the duly consularized document during the submission of the Eligibility Documents. Failure to submit the actual consularized document at the time of post-qualification shall be a ground for disqualification.

The Offeror may likewise submit the duly consularized document if it is already available on the date of the submission of the Eligibility Documents.

1.9(a)(i)d. Eligibility Requirements: Technical Documents

EDF No. 2 (Statement of Ongoing Projects) shall include all government and private

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contracts whether similar or not similar in nature and complexity to the contract to be bid

EDF No. 3 (Statement of Completed Projects) shall include all government and private contracts completed within the last fifteen (15) years prior to the deadline for the submission and receipt of Eligibility Documents shall be listed, whether similar or not similar in nature and complexity to the contract to be bid.

Similar Contracts shall refer to:

Type A: either:

(a) Contracts for transport planning of the Developments; or (b) Contracts for the review of detailed design of the Developments; or (c) Contracts for the certification of detailed design of the Developments; or (d) Contracts for engineering consultancy on the Developments.

Type B: either:

(a) Contracts for project management of the Developments; or (b) Contracts for construction management of the Developments.

“Developments” shall refer to any of the following: a bus terminal, commercial complex, shopping mall, airport terminal, parking complex, freight terminal; provided that :

1. The minimum cumulative development cost of project must be at least Four Hundred Million Philippine Pesos (Php 400,000,000), excluding the price of land; and

2.Each individual project must have a minimum development cost of project of at least One Hundred Million Philippine Pesos (Php 100,000,000); and

3. Each individual project must involve a capacity of at least thirty (30) parking bays for land surface transport vehicles with four (4) or more wheels, excluding rail.

For completed contracts (EDF No. 3) The Offerors must have at least one (1) Type A Similar Contract and Type B Similar Contract. Offerors may use separate contracts to comply with each of the requirements. Offerors may also use the same contract to comply with each of the requirements.

Developments described above may be an independent project or may be assimilated with another facility as identified under the definition of “Developments.” In the latter case, the cost of the entire project shall be considered in the evaluation.

The following must be attached to EDF No. 3 for each Similar Contract listed: 1. Contract; and 2. Certificate or acceptable proof of completion or acceptance issued by the client under oath.

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In the event that a Certificate of completion or acceptance cannot be secured, a letter or any document from the client stating, under oath, completion of work will suffice.

In lieu of such attachments and subject to inspection of the original contracts during the post-qualification, the Offerors may instead submit a notarized certificate from their client summarizing salient portions of such attachments, which should include, but not limited to the following:

a) Name and Location of Project; b) Description of the Services and indication whether it falls under Type A or

Type B Similar Contracts; c) Type of Consulting Services (Specify whether Lone Consultant, Sub-

contractor, or as Lead JV Member Specifying Nature, Degree and Scope of Participation);

d) Classification of client (Government/Private) and address; e) Date of Contract; f) Amount of Contract; g) Participation of firm in Amount of Contract (If Joint Venture); h) Contract Duration; i) Development Cost of Project; j) Capacity of the Project (in terms of parking bays); and k) Proof of completion

In addition to this, note that the Offerors must have personnel with experience in the review of/ certification of/ preparation of detailed design, and review of/actual project or construction management of Developments. Any of its personnel may fulfill these requirements.

1.9(a)(i)f Eligibility Requirements: Financial Documents

If certified true copies of the above documents are submitted, the certification may be made by the authorized representative of the firm or JV to the general rules stated in Clause 1.9(a)(i) of the NDS and verification during post-qualification.

5 No further instructions.

6.1 Subcontracting is not allowed.

6.2 Not applicable.

7.1 The Procuring Entity will hold a pre-negotiation conference for this Project on 14 October 2015, 2:00 p.m.at the DOTC Conference Room, 16th Floor, The Columbia Tower, Ortigas Avenue, Brgy. Wack-Wack, Mandaluyong City

8.1 The Procuring Entity‟s address is: Department of Transportation and Communications Unit 153, 15th Floor, The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City

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Contact No.: 790-8300 loc. 235 and 272 Email Address: [email protected] Website: www.dotc.gov.ph

10.1(b) Not applicable.

10.1(c) During preliminary evaluation of the Technical Proposals, an Offeror will be requested to replace a nominated candidate if Offeror fails to nominate a candidate or a candidate does not meet the eligibility requirements.

Key Personnel

Minimum Educational

Qualification

Preferred Length of Professional Experience2

Experience on Eligible

Assignments Project

Manager Licensed in

Civil Engineering,

1. With a masteral degree related to Engineering Management; and/or 2. With a project management certification.

10 years He should have led project teams for at least two (2) Eligible Assignments provided that 1. The minimum cumulative development cost must be at least Four Hundred Million Philippine Pesos (Php 400,000,000), excluding the price of land; and 2.Each individual project must have a minimum development cost of at least One Hundred Million Philippine Pesos (Php 100,000,000); and 3. Each individual project must involve a capacity of at least thirty (30) parking bays for land surface transport vehicles with four (4) or more wheels, excluding rail.

Civil/ Structural Engineer –

Vertical

Licensed in Civil

Engineering / Structural

With a masteral degree related to Civil/

7 years He should have worked as civil / structural engineer on at least one (1)

2 Professional experience refers to the experience of the Key Personnel in the position he/she is being nominated for. Experience in the academe is not counted.

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Engineering Structural Engineering

Eligible Assignment provided that the project is at least two-storey.

Civil/ Structural Engineer –Horizontal

Licensed in Civil

Engineering / Structural

Engineering

With a masteral degree related to Civil/ Structural Engineering

7 years He should have worked as civil /structural engineer on at least one (1) Eligible Assignment provided that the project has a concrete paved road at least half a kilometer in length and at least seven (7) meters wide.

Operations and

Maintenance Expert

Licensed in any

Engineering course

With a masteral degree related to any Engineering course

5 years He should have been involved in operations and maintenance of at least one (1) Eligible Assignment.

Electrical Engineer

Licensed in Electrical

Engineering

With a masteral degree related to Electrical Engineering

5 years He should have worked as an electrical engineer on at least one (1) Eligible Assignment.

Transport Planner

Graduate of any bachelor's

degree

1. An engineering course; and/or 2. With a Masteral degree in Transport Planning

7 years He should have been engaged as a Transport Planner in at least one (1) Eligible Assignment, preferably on a project involving transport terminal planning, including but not limited to forecasting facility requirements based on projected passenger demand and setting out operational requirements and minimum performance standards and specifications.

Deputy Project

Manager

Licensed in Civil

Engineering

1. With a masteral degree related to Engineering Management;

7 years He should have led project teams for at least one (1) Eligible Assignment

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and/or 2. With a project management certification.

provided that 1. The minimum cumulative development cost must be at least Four Hundred Million Philippine Pesos (Php 400,000,000), excluding the price of land; and 2.Each individual project must have a minimum development cost of at least One Hundred Million Philippine Pesos (Php 100,000,000); and 3. Each individual project must involve a capacity of at least thirty (30) parking bays for land surface transport vehicles with four (4) or more wheels, excluding rail.

Architect Licensed in Architecture

With a masteral degree to Architecture

5 years He must have worked as senior architect on at least one (1) Eligible Assignment.

Safety Expert/

Engineer

Graduate of any Engineering course, with

certification on Safety

Engineering

5 years He should have worked as safety expert on at least one (1) Eligible Assignment.

Quantity Surveyor/

Cost Engineer

Licensed in Civil

Engineering course

With a masteral degree related to Civil Engineering

5 years He should have worked as quantity surveyor/cost engineer on at least one (1) Eligible Assignment.

Mechanical Engineer

Licensed in Mechanical Engineering

With a masteral degree related to Mechanical Engineering

5 years He should have worked as a mechanical engineer on at least one (1) Eligible Assignment.

IT/ MIS Expert

Graduate of any information technology or

computer/engin

With a masteral degree related to information

5 years He should have demonstrated experience in the design /

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eering science course

technology or engineering science course.

development / implementation / maintenance of at least one (1) IT systems or MIS.

Materials/Quality

Control Engineer

Licensed in Civil

Engineering

Licensed in Materials Engineering

5 years He should have demonstrated experience as Materials Engineer in the construction of at least one (1) Eligible Assignment.

Environmental Specialist

Licensed Environmental

Planner

With a masteral degree related to Environmental Planning

7 years He should have demonstrated experience in environmental impact assessment and mitigation measures for at least five (5) projects in accordance with the specific environmental and safeguard requirements in the Philippines and of existing Philippine laws.

Surveyor Licensed in Geodetic

Engineering

With a masteral degree related to Geodetic Engineering

5 years

Sanitary Engineer

Licensed in Sanitary

Engineering

With a masteral degree related to Sanitary Engineering

5 years

Legal Specialist

Integrated Bar of the

Philippines member in good

standing

With a masteral degree related to Law

7 years He should have demonstrated experience in providing legal services/advice in relation to infrastructure projects.

The Offeror shall nominate at least one expert for each Key Personnel listed above. Offerors will be allowed to cure all Key Personnel however, failure to nominate an eligible candidate for all Key Personnel after the curing period shall be a ground for disqualification.

The Independent Consultant shall determine the need for any additional staff/personnel not considered as Key Personnel who are necessary to perform the scope of work set out in the Negotiation Documents. All costs arising from the

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engagement of such staff/personnel shall be included in the proposal.

Note that Curriculum Vitae (CVs) and certifications (for the Safety Expert) of the nominated Key Personnel shall be included in the submission of Technical Proposals, following TFP 6. All CVs and certifications to be issued by the nominated Key Personnel should be notarized/ executed under oath.

The Offeror may nominate a maximum of three (3) experts/CVs for each Key Personnel position but such expert must be nominated in the order of preference. For example, if the Offeror nominated Expert A, Expert B, and Expert C for one position, the Offeror must indicate their ranking. Expert A could be ranked 1. Expert B ranked 2 and Expert C ranked 3. Note that if the first ranked expert already qualifies for the position, the CVs of the other experts nominated for the position shall no longer be considered for evaluation. Note further that no expert shall be designated for more than one (1) position.

Eligible Assignments

Eligible Assignments include those that have allowed the candidate to gain the experience in the development of any of the following: a bus terminal, commercial complex, shopping mall, airport terminal, parking complex, freight terminal.

Eligible Assignments may be an independent project or may be assimilated with another facility as mentioned above. In the latter case, the cost of the entire project shall be considered in the evaluation.

The enumeration of the Eligible Assignments should be included in both EDF No. 4 and the CV of the nominated Key Personnel.

11.5 Taxes: Consultants shall shoulder all relevant taxes Amounts payable to the Independent Consultant under this contract shall be subject to Philippine taxes, paid as follows: Value-Added Tax and Income Tax

11.7 The GOP‟s ABC is Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy Two Pesos (Php 24,496,472.00), covering fifty percent of the total contract cost. The balance of Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy Two Pesos (Php 24,496,472.00) will be drawn from the funds of the MWM Terminals, Inc. Any bid with a financial component exceeding the total budget for the contract of Forty Eight Million Nine Hundred Ninety Two Thousand Nine Hundred Forty Four Pesos (PhP 48,992,944.00) shall not be accepted.

13.1 The bid prices shall be quoted in Philippine Pesos. The bid price should be inclusive of 12% VAT.

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13.3 No further instructions.

14.1 Offers will be valid until at least one hundred twenty (120) calendar days from the date of the negotiations.

15.1 The offer security shall be in the following amount: 1. Nine Hundred Seventy Nine Thousand Eight Hundred Fifty Eight Pesos and

Eighty Eight Centavos (PhP 979,858.88) if offer security is in cash, cashier‟s/manager‟s check, bank draft/guarantee or irrevocable letter of credit;

2. Two Million Four Hundred Forty Nine Thousand Six Hundred Forty Seven Pesos and Twenty Centavos (PhP 2,449,647.20) if offer security is in Surety Bond; or

3. Any combination of the foregoing proportionate to the share of form with respect to total amount of security.

15.2 The offer security shall be valid one hundred twenty (120) calendar days from the date of the submission of proposals.

15.5(a)(iv) 1. Submission of eligibility requirements containing false information or falsified documents.

2. Submission of proposals that contain false information or falsified documents, or the concealment of such information in the bids in order to influence the outcome of eligibility screening or any other stage of the negotiated procurement.

3. Allowing the use of one‟s name, or using the name of another for purposes of negotiated procurement.

4. Withdrawal of a proposal, or refusal to accept an award, or enter into contract with the Government without justifiable cause, after the Offeror had been adjudged as having submitted the Lowest Calculated and Responsive Offer.

5. Refusal or failure to post the required performance security within the prescribed time.

6. Refusal to clarify or validate in writing its offer during post-qualification within a period of seven (7) calendar days from receipt of the request for clarification.

7. Any documented unsolicited attempt by a Offeror to unduly influence the outcome of the bidding in his favor.

8. Failure of the potential joint venture partners to enter into the joint venture after the offer is declared as successful.

9. All other acts that tend to defeat the purpose of the competitive bidding, such as habitually withdrawing from bidding, submitting late proposals or patently insufficient proposals, for at least three (3) times within a year, except for valid

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reasons.

15.5(b)(iii)

No further instructions.

16.1 Prospective Offerors shall submit their Eligibility Documents through their duly authorized representative on or before 19 October 2015 at 10:00 A.M. If a partnership, corporation, cooperative or joint venture, Offerors must also attach a document showing proof of authorization (e.g. duly notarized valid appointment in the form of Board Resolution and/or Board Secretary‟s Certificate) with the specimen signature of the Offeror‟s authorized representative to transact with DOTC relative to the subject procurement process and/or signatory in all the required tender documents, including the authority to enter into a Joint Venture Agreement (JVA) (if applicable), and appoint the lead partner and representative of the JVA. If executed abroad, the same must be duly authenticated by the Philippine Consulate in the place of execution.


17.3 Each Offeror shall submit one (1) original and two (2) copies of the first and second components of its offer, properly bound with corresponding index tab. Failure to comply with the said binding and tabbing requirements shall not be a ground for ineligibility. For Clarification: First component refers to the first envelope containing the Eligibility Documents and the Technical Proposal. On the other hand, the second component refers to the second envelope containing the Financial Proposal.

17.4(c) The Procuring Entity‟s address is: Department of Transportation and Communications Unit 153, 15th Floor, The Columbia Tower, Ortigas Avenue, Brgy. Wack-Wack, Mandaluyong City Contact Nos.: 790-8300 loc. 235 and 272 Email Address: [email protected] Website: www.dotc.gov.ph

18 The address for submission of proposals is Unit 153, 15th Floor, The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City.

The deadline for submission of bids is on or before 19 October 2015 at 10:00 a.m. The proposals shall contain the Eligibility Documents, Technical Proposal and Financial Proposal. The Eligibility Documents and Technical proposals shall be enclosed in the “first envelope” while the Financial proposal shall be enclosed in the “second envelope”.

mailto:[email protected]

http://www.dotc.gov.ph/

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27.1 The following processes for the opening and evaluation of proposals shall be adopted:

1. After the curing period of the first envelope as specified in ITO Clause 25.1, failure of an Offeror to submit the required Eligibility and Technical Documents in the first envelope within the three (3) day curing period shall be rated “failed”. Otherwise, the Negotiating Team shall rate an Offeror‟s first envelope as “passed”.

2. The Negotiating Team shall conduct a detailed evaluation of the Eligibility and Technical Proposals of Offerors after the curing period. The technical proposal together with the financial proposal shall be considered in the evaluation of consultants. The technical proposals shall be evaluated first using the criteria in ITO Clause 26.2. The financial proposals of the Offerors who meet the minimum technical score shall then be opened.

3. The financial and technical proposals shall be given corresponding weights with the financial proposal given a weighted score of thirty percent (30%) while the technical proposal has a weighted score of seventy percent (70%). The total weighted score of the financial and technical proposal shall add to one hundred percent (100%). The BAC through the Negotiating Team shall rank the consultants in descending order based on the combined numerical ratings of their technical and financial proposals and identify the Highest Rated Offer.

4. After determination of the Highest Rated Offer, the Negotiating Team shall, within three (3) calendar days, notify and invite the consultant with the Highest Rated Offer for negotiation in accordance with ITO Clause 29.

27.3 The minimum required Technical Score for each criterion is as follows:

Applicable experience of the firm 35% Qualification of personnel who may be assigned to the job vis-à-vis extent and complexity of the undertaking; 30%

Plan of Approach and Methodology 35%

Additional Documentary Requirements

1. The Offeror or any of the JV members must be a holder of ISO 9001 Certificate and must submit the same together with the Eligibility Documents. If such ISO 9001 Certificate originates from outside the Philippines, it need not be notarized or consularized.*

* A copy of the ISO 9001 Certificate will be accepted subject to verification during the post-qualification stage.

2. The Offeror and any of its employees and agents shall submit EDF No. 5 which must be notarized (in case of a JV, all parties must submit such notarized statement), specifying that it does not have any past, present and anticipated or planned future relationships, with the DOTC, PPP

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Center, MWM, or any other individual or entity, in relation to the Integrated Transport System – Southwest Terminal PPP Project. For the avoidance of doubt, the mere involvement with an entity which purchased the bidding documents for the Integrated Transport System – Southwest Terminal PPP Project will not be a ground for disqualification from participating in the bidding for the Independent Consultancy contract.

3. The Offeror shall submit a list of personnel to be assigned to the Project

together with their Curriculum Vitae and latest professional licenses, and professional affiliation.

The minimum Technical Score required to pass is Seventy (70) Points.

28.1 The opening of Financial Proposals shall be on the date as indicated in the Notice to Offerors rated “Passed” at the DOTC Conference Room, 16th Floor, The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City.

28.2 The following processes for the opening and evaluation of the Financial Proposal shall be adopted: After the curing period and evaluation of the first envelope containing the Eligibility Documents and Technical Proposals, the Negotiating Team shall rank the consultants in descending order based on the numerical ratings of their technical proposals. The Procuring Entity shall notify those Offerors whose offers did not meet the minimum qualifying mark of seventy (70) points or were considered non-responsive to the Negotiation Documents and TOR, indicating that their Financial Proposals shall be returned unopened after completing the selection process. The Procuring Entity shall simultaneously notify the Offerors that have secured the minimum qualifying mark, indicating the date and time set for opening the Financial Proposals. The opening date shall not be sooner than three days after the notification date unless otherwise specified in ITO 30.1. The notification may be sent by registered letter, facsimile, or electronic mail. In case one or more of the requirements in the second envelope of the proposal is missing, incomplete or patently insufficient, and/or if the submitted total financial proposal exceeds the ABC, the Negotiating Team shall rate the proposal concerned as “failed”. Only proposals that are determined to contain all the proposal requirements for both components shall be rated “passed” and shall immediately be considered for evaluation and comparison. After the detailed evaluation of the eligibility documents and technical proposal is completed, The Financial Proposals shall be opened publicly in the presence of the Offerors‟ representatives who choose to attend. The name of the Offeror, the quality scores, and the proposed prices shall be read aloud and recorded when the Financial Proposals are opened. The Procuring Entity shall prepare minutes of the public opening. The BAC through the Negotiating Team shall determine whether the Financial

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Proposals are complete, i.e., whether all the documents mentioned in ITO Clause 11 are present and all items of the corresponding Technical Proposals that are required to be priced are so priced. If not, the Procuring Entity shall reject the proposal. and shall be deemed to include the cost of all taxes, duties, fees, levies, and other charges imposed under the applicable laws. The evaluation shall include all such taxes, duties, fees, levies, and other charges imposed under the applicable laws; where special tax privileges are granted to a particular class or nationality of Consultant by virtue of the GOP‟s international commitments, the amount of such tax privileges shall be included in the Financial Proposal for purposes of comparative evaluation of proposals. The lowest Financial Proposal (Fm) shall be given a Financial Score (Sf) of 100 points. The Sf of other Financial Proposals shall be computed based on the formula indicated below: Sf = 100 Fl/F Where: Sf is the financial score of the Financial Proposal under consideration, Fl is the price of the Fm, and F is the price of the Financial Proposal under consideration. Using the formula S = St T% + Sf F%, the offers shall then be ranked according to their combined St and Sf using the weights (T = the weight given to the Technical Proposal; F = the weight given to the Financial Proposal; T + F = 1) indicated below: T _________ [Normallybetween 0.6 and 0.85]; and F _________ [Normallybetween 0.15 and 0.4]; provided that the total weights given to the Technical and Financial Proposals shall add up to 1.0. The Technical and Financial Proposals shall be given weights at 70% and 30% respectively, comprising a total of 100%, with a minimum technical score of seventy (70) points. The Procuring Entity shall announce the results of the Technical and Financial evaluations in order of ranking from Highest Rated Offeror to Lowest Rated Offeror. The Procuring Entity shall notify the Highest Rated Offeror on the schedule of negotiations.

29.1 The address for negotiations is Unit 153, 15thFloor, The Columbia Tower, Ortigas Avenue, Barangay Wack-Wack, Mandaluyong City.

29.2(e) No negotiations pertaining to the Financial Proposal shall be undertaken.

30.2(b) Tax returns filed manually and filed through the BIR Electronic Filing and Payments System (EFPS) shall be accepted. NOTE: The latest income and business tax returns are those within the last six months preceding the date of bid submission.

30.2(e) No further instructions.

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33.4(g) Approved BAC Resolution to Award.


35.2 The effective date of the contract is from the date of the Notice to Proceed which shall not be later than seven (7) days upon its issuance.

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Section IV. General Conditions of Contract

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TABLE OF CONTENTS 1. DEFINITIONS ....................................................................................... 55 2. HEADINGS .......................................................................................... 56 3. LOCATION .......................................................................................... 56 4. LAW GOVERNING CONTRACT AND SERVICES......................................... 56 5. LANGUAGE ......................................................................................... 57 6. CONSULTANTS AND AFFILIATES NOT TO ENGAGE IN CERTAIN

ACTIVITIES ......................................................................................... 57 7. AUTHORITY OF MEMBER IN CHARGE .................................................... 57 8. RESIDENT PROJECT MANAGER ............................................................. 57 9. ENTIRE AGREEMENT ........................................................................... 57 10. MODIFICATION.................................................................................... 57 11. RELATIONSHIP OF PARTIES................................................................... 58 12. AUTHORIZED REPRESENTATIVES .......................................................... 58 13. GOOD FAITH ....................................................................................... 58 14. OPERATION OF THE CONTRACT............................................................. 58 15. NOTICES ............................................................................................. 58 16. WARRANTY AS TO ELIGIBILITY ............................................................ 59 17. CONFIDENTIALITY ............................................................................... 59 18. PAYMENT ........................................................................................... 59 19. CURRENCY OF PAYMENT ..................................................................... 59 20. LIABILITY OF THE CONSULTANT ........................................................... 60 21. INSURANCE TO BE TAKEN OUT BY THE CONSULTANT ............................. 60 22. EFFECTIVITY OF CONTRACT ................................................................. 60 23. COMMENCEMENT OF SERVICES ............................................................ 60 24. EXPIRATION OF CONTRACT .................................................................. 60 25. FORCE MAJEURE ................................................................................. 60 26. SUSPENSION........................................................................................ 62 27. TERMINATION BY THE PROCURING ENTITY ............................................ 62 28. TERMINATION BY THE CONSULTANT ..................................................... 63 29. PROCEDURES FOR TERMINATION OF CONTRACTS ................................... 64 30. CESSATION OF SERVICES...................................................................... 65 31. PAYMENT UPON TERMINATION ............................................................ 65 32. DISPUTES ABOUT EVENTS OF TERMINATION .......................................... 65 33. CESSATION OF RIGHTS AND OBLIGATIONS............................................. 65 34. DISPUTE SETTLEMENT ......................................................................... 66 35. DOCUMENTS PREPARED BY THE CONSULTANT AND SOFTWARE

DEVELOPED TO BE THE PROPERTY OF THE PROCURING ENTITY ............... 66 36. EQUIPMENT AND MATERIALS FURNISHED BY THE PROCURING

ENTITY ............................................................................................... 66 37. SERVICES, FACILITIES AND PROPERTY OF THE PROCURING ENTITY.......... 66

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38. CONSULTANT‟S ACTIONS REQUIRING PROCURING ENTITY‟S PRIOR APPROVAL .......................................................................................... 67

39. PERSONNEL ........................................................................................ 67 40. WORKING HOURS, OVERTIME, LEAVE, ETC. .......................................... 68 41. COUNTERPART PERSONNEL .................................................................. 69 42. PERFORMANCE SECURITY .................................................................... 69 43. STANDARD OF PERFORMANCE .............................................................. 70 44. CONSULTANT NOT TO BENEFIT FROM COMMISSIONS, DISCOUNTS,

ETC. ................................................................................................... 70 45. PROCUREMENT BY THE CONSULTANT ................................................... 71 46. SPECIFICATIONS AND DESIGNS ............................................................. 71 47. REPORTS ............................................................................................ 71 48. ASSISTANCE BY THE PROCURING ENTITY ON GOVERNMENT

REQUIREMENTS................................................................................... 71 49. ACCESS TO LAND ................................................................................ 72 50. SUBCONTRACT .................................................................................... 72 51. ACCOUNTING, INSPECTION AND AUDITING ............................................ 72 52. CONTRACT COST................................................................................. 73 53. REMUNERATION AND REIMBURSABLE EXPENDITURES............................ 73 54. FINAL PAYMENT ................................................................................. 74 55. LUMP SUM CONTRACTS ....................................................................... 75 56. LIQUIDATED DAMAGES FOR DELAY ...................................................... 75

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1. Definitions

1.1. Unless the context otherwise requires, the following terms whenever used in this Contract have the following meanings:

(a) “Applicable Law” means the laws and any other instruments having the force of law in the Philippines as they may be issued and enforced from time to time.

(b) “Consultant” refers to the short listed consultant with the Highest Rated and Responsive Offer determined by the Procuring Entity as such in accordance with the ITO and specified in the SCC.

(c) “Consulting Services” refer to services for Infrastructure Projects and other types of projects or activities of the Government of the Philippines (GOP) requiring adequate external technical and professional expertise that are beyond the capability and/or capacity of the Procuring Entity to undertake such as, but not limited to: (i) advisory and review services; (ii) pre-investment or feasibility studies; (iii) design; (iv) construction supervision; (v) management and related services; and (vi) other technical services or special studies.

(d) “Contract” means the agreement signed by the Parties, to which these General Conditions of Contract (GCC) and other sections of the Negotiating Documents are attached.

(e) “Effective Date” means the date on which this Contract comes into full force and effect.

(f) “Foreign Currency” means any currency other than the currency of the Philippines.

(g) “Funding Source” means the entity indicated in the SCC.

(h) “GCC” means these General Conditions of Contract.

(i) “Government” means the Government of the Philippines (GOP).

(j) “Local Currency” means the Philippine Peso (Php).

(k) “Member,” in case the Consultant is a Joint Venture (JV) of two (2) or more entities, means any of these entities; and “Members” means all these entities.

(l) “Party” means the Procuring Entity or the Consultant, as the case may be, and “Parties” means both of them.

(m) “Personnel” means persons hired by the Consultant or by any Sub-Consultant as employees and assigned to the performance of the Services or any part thereof; “Foreign Personnel” means such persons who at the time of being so hired had their domicile outside the Government‟s country; “Local Personnel” means such persons who at

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the time of being so hired had their domicile inside the Philippines; and “Key Personnel” means the Personnel referred to in GCC Clause 39.

(n) “Procuring Entity” refers to any branch, constitutional commission or office, agency, department, bureau, office or instrumentality of the Government, including GOCC, GFI, SUC, and LGU procuring Goods, Consulting Services, and Infrastructure Projects.

(o) “SCC” means the Special Conditions of Contract by which the GCC may be amended or supplemented.

(p) “Services” means the work to be performed by the Consultant pursuant to this Contract, as described in Appendix I.

(q) “Sub-consultant” means any person or entity to whom/which the Consultant subcontracts any part of the Services in accordance with the provisions of GCC Clause 50.

(r) “Third Party” means any person or entity other than the Government, the Procuring Entity, the Consultant or a Sub-Consultant.

2. Headings

The headings shall not limit, alter or affect the meaning of this Contract.

3. Location

The Services shall be performed at such locations as are specified in Appendix I and, where the location of a particular task is not so specified, at such locations, whether in the Philippines or elsewhere, as the Procuring Entity may approve.

4. Law Governing Contract and Services

4.1. This Contract, its meaning and interpretation, and the relation between the Parties shall be governed by the Applicable Law.

4.2. The Consultant shall perform the Services in accordance with the Applicable Law and shall take all practicable steps to ensure that any Sub-Consultant, as well as the Personnel of the Consultant and any Sub-Consultant, complies with the Applicable Law. The Procuring Entity shall notify the Consultant in writing of relevant local customs, and the Consultant shall, after such notification, respect such customs.

4.3. If, after the date of this Contract, there is any change in the Applicable Law with respect to taxes and duties which increases or decreases the cost incurred by the Consultant in performing the Services, then the remuneration and reimbursable expenses otherwise payable to the Consultant under this Contract shall be increased or decreased on a no loss-no gain basis, and corresponding adjustments shall be made to the ceiling amounts specified in GCC Clause 52, provided that the cost is within the Approved Budget for the Contract (ABC).

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5. Language

This Contract has been executed in the English language, which shall be the binding and controlling language for all matters relating to the meaning or interpretation of this Contract.

6. Consultants and Affiliates Not to Engage in Certain Activities

6.1. The Consultant agrees that, during the term of this Contract and after its termination, the Consultant and any entity affiliated with the Consultant, as well as any Sub-Consultant and any entity affiliated with such Sub-Consultant, shall be disqualified from providing goods, works, or consulting services for any project resulting from or closely related to this Contract other than the Services and any continuation thereof provided there is no current or future conflict.

6.2. The Consultant shall not engage, and shall cause their Personnel as well as their Sub-Consultants and their Personnel not to engage, either directly or indirectly, in any of the following activities:

(a) during the term of this Contract, any business or professional activities in the Government‟s country which would conflict with the activities assigned to them under this Contract; and

(b) after the termination of this Contract, such other activities as may be specified in the SCC.

7. Authority of Member in Charge

In case the Consultant is a JV, the Members hereby authorize the entity specified in the SCC to act on their behalf in exercising all the Consultant‟s rights and obligations towards the Procuring Entity under this Contract, including without limitation the receiving of instructions and payments from the Procuring Entity.

8. Resident Project Manager

If required by the SCC, the Consultant shall ensure that at all times during the Consultant‟s performance of the Services in the Government‟s country, a resident project manager, acceptable to the Procuring Entity, shall take charge of the performance of such Services.

9. Entire Agreement

This Contract, including the documents specified in Section 37.2.3 of the IRR, contains all covenants, stipulations and provisions agreed by the Parties. No agent or representative of either Party has authority to make any statement, representation, promise, or agreement not set forth herein of which the Parties shall not be bound by or be liable for.

10. Modification

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Unless otherwise specified in the SCC, no modification of the terms and conditions of this Contract, including any modification of the scope of the Services shall be allowed. Pursuant to GCC Clause 14 hereof, however, each Party shall give due consideration to any proposal for modification made by the other Party.

11. Relationship of Parties

11.1. Nothing contained herein shall be construed as establishing a relation of employer and employee or of principal and agent as between the Procuring Entity and the Consultant. The Consultant, subject to this Contract, has complete charge of its Personnel and Sub-Consultants, if any, performing the Services and shall be fully responsible for the Services performed by them or on their behalf hereunder.

11.2. The Consultant shall during the performance of the Services be an independent contractor, retaining complete control over its Personnel, conforming to all statutory requirements with respect to all its employees, and providing all appropriate employee benefits.

12. Authorized Representatives

Any action required or permitted to be taken, and any document required or permitted to be executed, under this Contract by the Procuring Entity or the Consultant may be taken or executed by the officials specified in the SCC.

13. Good Faith

The Parties undertake to act in good faith with respect to each other‟s rights under this Contract and to adopt all reasonable measures to ensure the realization of the objectives of this Contract.

14. Operation of the Contract

The Parties recognize that it is impractical for this Contract to provide for every contingency which may arise during the life of this Contract, and the Parties hereby agree that it is their intention that this Contract shall operate fairly as between them, and without detriment to the interest of either of them; and that, if during the term of this Contract either Party believes that this Contract is operating unfairly, the Parties shall use their best efforts to agree on such action as may be necessary to remove the cause or causes of such unfairness, but no failure to agree on any action pursuant to this Clause shall give rise to a dispute subject to arbitration in accordance with GCC Clause 34 hereof.

15. Notices

15.1. Any notice, request or consent required or permitted to be given or made pursuant to this Contract shall be in writing. Any such notice, request or consent shall be deemed to have been given or made when received by the concerned party, either in person or through an authorized representative of the Party to whom the communication is addressed, or when sent by registered

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mail, telex, telegram or facsimile to such Party at the address specified in the SCC.

15.2. Notice shall be deemed to be effective as specified in the SCC.

15.3. A Party may change its address for notice hereunder by giving the other Party notice of such change pursuant to the provisions listed in the SCC with respect to GCC Clause 15.2.

16. Warranty as to Eligibility

16.1. The Consultant represents, warrants, and confirms that it, as well as its Sub-Consultant, if any, is eligible, i.e., has the legal personality to act as a consultant in accordance with ITO Clause 1.8 issued for this project.

16.2. The Consultant shall fulfill its obligations under this Contract by using knowledge according to the best accepted professional standards. The Consultant shall exercise all reasonable skill, care and diligence in the discharge of duties agreed to be performed and shall work in the best interest of the GOP.

17. Confidentiality

Except with the prior written consent of the Procuring Entity, the Consultant and the Personnel shall not at any time communicate to any person or entity any confidential information acquired in the course of the Services, nor shall the Consultant and the Personnel make public the recommendations formulated in the course of, or as a result of, the Services. For purposes of this clause, “confidential information” means any information or knowledge acquired by the Consultant and/or its Personnel arising out of, or in connection with, the performance of the Services under this Contract that is not otherwise available to the public.

18. Payment

18.1. In consideration of the Services performed by the Consultant under this Contract, the Procuring Entity shall make to the Consultant such payments and in such manner as is provided by GCC Clause 53 of this Contract. However, the Procuring Entity may refuse to make payments when the terms and conditions of the contract are not satisfactorily performed by the Consultant.

18.2. Subject to the ceilings specified in GCC Clause 52 hereof, the Procuring Entity shall pay to the Consultant: (i) remuneration as set forth in GCC Clause 53.2; and (ii) reimbursable expenditures as set forth in GCC Clause 53.4. Said remuneration shall not be subject to price adjustment.

18.3. All payments under this Contract shall be made to the account of the Consultant specified in the SCC.

19. Currency of Payment

All payments shall be made in Philippine Pesos.

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20. Liability of the Consultant

Subject to additional provisions, if any, set forth in the SCC, the Consultant‟s liability under this Contract shall be as provided by the laws of the Republic of the Philippines.

21. Insurance to be Taken Out by the Consultant

21.1. The Consultant, at its own cost, shall be responsible for taking out or maintaining any insurance policy against any risk related to the project.

21.2. The Procuring Entity undertakes no responsibility in respect of life, health, accident, travel or any other insurance coverage for the Personnel or for the dependents of any such Personnel.

22. Effectivity of Contract

This Contract shall take effect on the date of the Consultant‟s receipt of the NTP, in accordance with ITO Clause 35, provided that the effectiveness of the conditions, if any, listed in the SCC have been met.

23. Commencement of Services

The Consultant shall begin carrying out the Services starting from the effectivity date of this Contract, as mentioned in GCC Clause 22.

24. Expiration of Contract

Unless sooner terminated pursuant to GCC Clauses 27 or 28 hereof, this Contract shall terminate at the end of such time period after the effectivity date as shall be specified in the SCC.

25. Force Majeure

25.1. For purposes of this Contract the terms “force majeure” and “fortuitous event” may be used interchangeably. In this regard, a fortuitous event or force majeure shall be interpreted to mean an event which the Consultant could not have foreseen, or which though foreseen, was inevitable. It shall not include ordinary unfavorable weather conditions; and any other cause the effects of which could have been avoided with the exercise of reasonable diligence by the Consultant.

25.2. The failure of a Party to fulfill any of its obligations hereunder shall not be considered to be a breach of, or default under, this Contract insofar as such inability arises from an event of force majeure, provided that the Party affected by such an event has taken all reasonable precautions, due care and reasonable alternative measures, all with the objective of carrying out the terms and conditions of this Contract.

25.3. Unless otherwise agreed herein, force majeure shall not include:

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(a) any event which is caused by the negligence or intentional action of a Party or such Party‟s Sub-Consultants or agents or employees;

(b) any event which a diligent Party could reasonably have been expected to both take into account at the time of the conclusion of this Contract and avoid or overcome in the carrying out of its obligations hereunder;

(c) insufficiency of funds or failure to make any payment required hereunder; or

(d) the Procuring Entity‟s failure to review, approve or reject the outputs of the Consultant beyond a reasonable time period.

25.4. A Party affected by an event of force majeure shall take all reasonable measures to remove such Party‟s inability to fulfill its obligations hereunder immediately or within a reasonable time.

25.5. A Party affected by an event of force majeure shall notify the other Party of such event as soon as possible, and in any event not later than fifteen (15) days following the occurrence of such event, providing evidence of the nature and cause of such event, and shall similarly give notice of the restoration of normal conditions as soon as possible.

25.6. The Parties shall take all reasonable measures to minimize the consequences of any event of force majeure.

25.7. Any period within which a Party shall, pursuant to this Contract, complete any action or task, shall be extended for a period equal to the time during which such Party was unable to perform such action as a direct and proximate result of force majeure.

25.8. During the period of their inability to perform the Services as a direct and proximate result of an event of force majeure, the Consultant shall be entitled to continue receiving payment under the terms of this Contract as well as to be reimbursed for additional costs reasonably and necessarily incurred by it during such period for the purposes of the Services and in reactivating the Services after the end of such period, provided that such costs are still within the total contract price. However, the foregoing provision shall not apply if the Procuring Entity suspends or terminates this Contract in writing, notice thereof duly received by the Consultant, pursuant to GCC Clauses 26 and 27 hereof with the exception of the direct and proximate result of force majeure.

25.9. Not later than fifteen (15) days after the Consultant, as the direct and proximate result of an event of force majeure, has become unable to perform a material portion of the Services, the Parties shall consult with each other with a view to agreeing on appropriate measures considering the circumstances.

25.10. In the case of disagreement between the parties as to the existence, or extent of force majeure, the matter shall be submitted to arbitration in accordance with GCC Clause 34 hereof.

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26. Suspension

26.1. The Procuring Entity shall, by written notice of suspension to the Consultant, suspend all payments to the Consultant hereunder if the Consultant fail to perform any of their obligations due to their own fault or due to force majeure or other circumstances beyond the control of either party (e.g. suspension of civil works being supervised by the consultant) under this Contract, including the carrying out of the Services, provided that such notice of suspension:

(a) shall specify the nature of the failure; and

(b) shall request the Consultant to remedy such failure within a period not exceeding thirty (30) days after receipt by the Consultant of such notice of suspension.

26.2. The Consultant may, without prejudice to its right to terminate this Contract pursuant to GCC Clause 28, by written notice of suspension, suspend the Services if the Procuring Entity fails to perform any of its obligations which are critical to the delivery of the Consultant‟s services such as, non-payment of any money due the Consultant within forty-five (45) days after receiving notice from the Consultant that such payment is overdue.

27. Termination by the Procuring Entity

27.1. The Procuring Entity shall terminate this Contract when any of the following conditions attends its implementation:

(a) Outside of force majeure, the Consultant fails to deliver or perform the Outputs and Deliverables within the period(s) specified in the Contract, or within any extension thereof granted by the Procuring Entity pursuant to a request made by the Consultant prior to the delay;

(b) As a result of force majeure, the Consultant is unable to deliver or perform a material portion of the Outputs and Deliverables for a period of not less than sixty (60) calendar days after the Consultant‟s receipt of the notice from the Procuring Entity stating that the circumstance of force majeure is deemed to have ceased;

(c) In whole or in part, at any time for its convenience, the Head of the Procuring Entity may terminate the Contract for its convenience if he has determined the existence of conditions that make Project Implementation economically, financially or technically impractical and/or unnecessary, such as, but not limited to, fortuitous event(s) or changes in law and National Government policies;

(d) If the Consultant is declared bankrupt or insolvent as determined with finality by a court of competent jurisdiction; in which event, termination will be without compensation to the Consultant, provided that such termination will not prejudice or affect any right of action or remedy which has accrued or will accrue thereafter to the Procuring Entity and/or the Consultant;

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(e) In case it is determined prima facie that the Consultant has engaged, before or during the implementation of this Contract, in unlawful deeds and behaviors relative to contract acquisition and implementation, such as, but not limited to, the following: corrupt, fraudulent, collusive and coercive practices; drawing up or using forged documents; using adulterated materials, means or methods, or engaging in production contrary to rules of science or the trade; and any other act analogous to the foregoing. For purposes of this clause, corrupt, fraudulent, collusive, and coercive practices shall have the same meaning as that provided in ITO Clause 3.1(a).

(f) The Consultant fails to remedy a failure in the performance of their obligations hereunder, as specified in a notice of suspension pursuant to GCC Clause 15.2 hereinabove, within thirty (30) days of receipt of such notice of suspension or within such further period as the Procuring Entity may have subsequently approved in writing;

(g) The Consultant‟s failure to comply with any final decision reached as a result of arbitration proceedings pursuant to GCC Clause 34 hereof; or

(h) The Consultant fails to perform any other obligation under the Contract.

27.2. In case of termination, written notice shall be understood to mean fifteen (15) days for short term contracts, i.e., four (4) months or less, and thirty (30) days for long term contracts.

28. Termination by the Consultant

The Consultant must serve a written notice to the Procuring Entity of its intention to terminate this Contract at least thirty (30) calendar days before its intended termination. This Contract is deemed terminated if no action has been taken by the Procuring Entity with regard to such written notice within thirty (30) calendar days after the receipt thereof by the Procuring Entity. The Consultant may terminate this Contract through any of the following events:

(a) The Procuring Entity is in material breach of its obligations pursuant to this Contract and has not remedied the same within sixty (60) calendar days following its receipt of the Consultant‟s notice specifying such breach;

(b) The Procuring Entity‟s failure to comply with any final decision reached as a result of arbitration pursuant to GCC Clause 34 hereof

(c) As the direct and proximate result of force majeure, the Consultant is unable to perform a material portion of the Services for a period of not less than sixty (60) days; or

(d) The Procuring Entity fails to pay any money due to the Consultant pursuant to this Contract and not subject to dispute pursuant to GCC Clause 32 hereof within eighty four (84) days after receiving written notice from the Consultant that such payment is overdue.

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29. Procedures for Termination of Contracts

The following provisions shall govern the procedures for the termination of this Contract:

(a) Upon receipt of a written report of acts or causes which may constitute ground(s) for termination as aforementioned, or upon its own initiative, the Procuring Entity shall, within a period of seven (7) calendar days, verify the existence of such ground(s) and cause the execution of a Verified Report, with all relevant evidence attached;

(b) Upon recommendation by the Procuring Entity, the Head of the Procuring Entity shall terminate this Contract only by a written notice to the Consultant conveying such termination. The notice shall state:

(i) that the contract is being terminated for any of the ground(s) afore-mentioned, and a statement of the acts that constitute the ground(s) constituting the same;

(ii) the extent of termination, whether in whole or in part;

(iii) an instruction to the Consultant to show cause as to why the contract should not be terminated; and

(iv) special instructions of the Procuring Entity, if any.

The Notice to Terminate shall be accompanied by a copy of the Verified Report;

(c) Within a period of seven (7) calendar days from receipt of the Notice of Termination, the Consultant shall submit to the Head of the Procuring Entity a verified position paper stating why this Contract should not be terminated. If the Consultant fails to show cause after the lapse of the seven (7) day period, either by inaction or by default, the Head of the Procuring Entity shall issue an order terminating this Contract;

(d) The Procuring Entity may, at anytime before receipt of the Consultant‟s verified position paper to withdraw the Notice to Terminate if it is determined that certain services subject of the notice had been completed or performed before the Consultant‟s receipt of the notice;

(e) Within a non-extendible period of ten (10) calendar days from receipt of the verified position paper, the Head of the Procuring Entity shall decide whether or not to terminate this Contract. It shall serve a written notice to the Consultant of its decision and, unless otherwise provided, this Contract is deemed terminated from receipt of the Consultant of the notice of decision. The termination shall only be based on the ground(s) stated in the Notice to Terminate; and

(f) The Head of the Procuring Entity may create a Contract Termination Review Committee (CTRC) to assist him in the discharge of this function. All

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decisions recommended by the CTRC shall be subject to the approval of the Head of the Procuring Entity.

30. Cessation of Services

Upon termination of this Contract by notice of either Party to the other pursuant to GCC Clauses 27 or 28 hereof, the Consultant shall, immediately upon dispatch or receipt of such notice, take all necessary steps to bring the Services to a close in a prompt and orderly manner and shall make every reasonable effort to keep expenditures for this purpose to a minimum. With respect to documents prepared by the Consultant and equipment and materials furnished by the Procuring Entity, the Consultant shall proceed as provided, respectively, by GCC Clauses 35 or 36 hereof.

31. Payment Upon Termination

Upon termination of this Contract pursuant to GCC Clauses 27 or 28 hereof, the Procuring Entity shall make the following payments to the Consultant:

(a) remuneration pursuant to GCC Clause 53 hereof for Services satisfactorily performed prior to the effective date of termination;

(b) reimbursable expenditures pursuant to GCC Clause 53 hereof for expenditures actually incurred prior to the effective date of termination; and

(c) in the case of termination pursuant to GCC Clause 27.1(b) hereof, reimbursement of any reasonable cost incident to the prompt and orderly termination of this Contract including the cost of the return travel of the Personnel and their eligible dependents.

32. Disputes about Events of Termination

If either Party disputes whether an event specified in GCC Clause 27.1 or in GCC Clause 28 hereof has occurred, such Party may refer the matter to arbitration pursuant to GCC Clause 34 hereof, and this Contract shall not be terminated on account of such event except in accordance with the terms of any resulting arbitral award.

33. Cessation of Rights and Obligations

Upon termination of this Contract pursuant to GCC Clauses 27 or 28 hereof, or upon expiration of this Contract pursuant to GCC Clause 24, all rights and obligations of the Parties hereunder shall cease, except:

(a) such rights and obligations as may have accrued on the date of termination or expiration;

(b) the obligation of confidentiality set forth in GCC Clause 17 hereof; and

(c) the Consultant‟s obligation to permit inspection, copying and auditing of their accounts and records set forth in GCC Clauses 51.1(b) and 51.1(c) hereof, any right which a Party may have under the Applicable Law.

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34. Dispute Settlement

34.1. If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with the implementation of this Contract, the Parties shall make every effort to resolve amicably such dispute or difference by mutual consultation.

34.2. Any and all disputes arising from the implementation of this Contract shall be submitted to arbitration in accordance with the rules of procedure specified in the SCC.

35. Documents Prepared by the Consultant and Software Developed to be the Property of the Procuring Entity

35.1. All plans, drawings, specifications, designs, reports, other documents and software prepared by the Consultant for the Procuring Entity under this Contract shall become and remain the property of the Procuring Entity, and the Consultant shall, prior to termination or expiration of this Contract, deliver all such documents to the Procuring Entity, together with a detailed inventory thereof. The Consultant may retain a copy of such documents and software. The plans, drawings, specifications, designs, reports, other documents and software, including restrictions on future use of such documents and software, if any, shall be specified in the SCC.

35.2. All computer programs developed by the Consultant under this Contract shall be the sole and exclusive property of the Procuring Entity; provided, however, that the Consultant may use such programs for its own use with prior written approval of the Procuring Entity. If license agreements are necessary or appropriate between the Consultant and third parties for purposes of development of any such computer programs, the Consultant shall obtain the Procuring Entity‟s prior written approval to such agreements. In such cases, the Procuring Entity shall be entitled at its discretion to require recovering the expenses related to the development of the program(s) concerned.

36. Equipment and Materials Furnished by the Procuring Entity

Equipment and materials made available to the Consultant by the Procuring Entity, or purchased by the Consultant with funds provided by the Procuring Entity, shall be the property of the Procuring Entity and shall be marked accordingly. Upon termination or expiration of this Contract, the Consultant shall make available to the Procuring Entity an inventory of such equipment and materials and shall dispose of such equipment and materials in accordance with the Procuring Entity‟s instructions. While in possession of such equipment and materials, the Consultant, unless otherwise instructed by the Procuring Entity in writing, shall insure it at the expense of the Procuring Entity in an amount equal to their full replacement value.

37. Services, Facilities and Property of the Procuring Entity

The Procuring Entity shall make available to the Consultant and the Personnel, for the purposes of the Services and free of any charge, the services, facilities and property

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described in Appendix V at the terms and in the manner specified in said appendix, provided that if such services, facilities and property shall not be made available to the Consultant as and when so specified, the Parties shall agree on:

(a) any time extension that it may be appropriate to grant to the Consultant for the performance of the Services;

(b) the manner in which the Consultant shall procure any such services, facilities and property from other sources; and

(c) the additional payments, if any, to be made to the Consultant as a result thereof pursuant to GCC Clause 52 hereinafter which should be within the agreed contract ceiling.

38. Consultant’s Actions Requiring Procuring Entity’s Prior Approval

The Consultant shall obtain the Procuring Entity‟s prior approval in writing before taking any of the following actions:

(a) appointing such members of the Personnel as are listed in Appendix III merely by title but not by name;

(b) entering into a subcontract for the performance of any part of the Services, it being understood that:

(i) the selection of the Sub-Consultant and the terms and conditions of the subcontract shall have been approved in writing by the Procuring Entity prior to the execution of the subcontract; and

(ii) the Consultant shall remain fully liable for the performance of the Services by the Sub-Consultant and its Personnel pursuant to this Contract;

(c) replacement, during the performance of the contract for any reason, of any Personnel as listed in Appendix III of this Contract requiring the Procuring Entity‟s prior approval; and

(d) any other action that may be specified in the SCC.

39. Personnel

39.1. The Consultant shall employ and provide such qualified and experienced Personnel and Sub-Consultants as are required to carry out the Services.

39.2. The title, agreed job description, minimum qualification and estimated period of engagement in the carrying out of the Services of each of the Consultant‟s Key Personnel are described in Appendix III.

39.3. The Key Personnel and Sub-Consultants listed by title as well as by name in Appendix III are hereby approved by the Procuring Entity. In respect of other Key Personnel which the Consultant proposes to use in the carrying out of the Services, the Consultant shall submit to the Procuring Entity for review and

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approval a copy of their biographical data and, in the case of Key Personnel to be assigned within the GOP, a copy of a satisfactory medical certificate attached as part of Appendix III. If the Procuring Entity does not object in writing; or if it objects in writing but fails to state the reasons for such objection, within twenty-one (21) calendar days from the date of receipt of such biographical data and, if applicable, such certificate, the Key Personnel concerned shall be deemed to have been approved by the Procuring Entity.

39.4. The Procuring Entity may request the Consultants to perform additional services not covered by the original scope of work but are determined by the Procuring Entity to be critical for the satisfactory completion of the Services, subject to GCC Clause 55.6.

39.5. No changes shall be made in the Key Personnel, except for justifiable reasons beyond the control of the Consultant, as indicated in the SCC, and only upon prior approval of the Procuring Entity. If it becomes justifiable and necessary to replace any of the Personnel, the Consultant shall forthwith provide as a replacement a person of equivalent or better qualifications. If the Consultant introduces changes in Key Personnel for reasons other than those mentioned in the SCC, the Consultant shall be liable for the imposition of damages as described in the SCC.

39.6. Any of the Personnel provided as a replacement under GCC Clauses 39.5 and 39.7, the rate of remuneration applicable to such person as well as any reimbursable expenditures the Consultant may wish to claim as a result of such replacement, shall be subject to the prior written approval by the Procuring Entity. Except as the Procuring Entity may otherwise agree, the Consultant shall bear all additional travel and other costs arising out of or incidental to any removal and/or replacement, and the remuneration to be paid for any of the Personnel provided as a replacement shall not exceed the remuneration which would have been payable to the Personnel replaced.

39.7. If the Procuring Entity finds that any of the Personnel has committed serious misconduct or has been charged with having committed a criminal action as defined in the Applicable Law, or has reasonable cause to be dissatisfied with the performance of any of the Personnel, then the Consultant shall, at the Procuring Entity‟s written request specifying the grounds therefore, forthwith provide as a replacement a person with qualifications and experience acceptable to the Procuring Entity.

40. Working Hours, Overtime, Leave, etc.

40.1. Working hours and holidays for Key Personnel are set forth in Appendix III. Any travel time prior to and after contract implementation shall not be considered as part of the working hours.

40.2. The Key Personnel shall not be entitled to claim payment for overtime work, sick leave, or vacation leave from the Procuring Entity since these items are already covered by the Consultant‟s remuneration. All leaves to be allowed to the Personnel are included in the staff-months of service set forth in Appendix

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III. Taking of leave by any Personnel should not delay the progress and adequate supervision of the Services.

40.3. If required to comply with the provisions of GCC Clause 43.1 hereof, adjustments with respect to the estimated periods of engagement of Key Personnel set forth in Appendix III may be made by the Consultant by prior written notice to the Procuring Entity, provided that:

(a) such adjustments shall not alter the originally estimated period of engagement of any individual by more than ten percent (10%); and

(b) the aggregate of such adjustments shall not cause payments under this Contract to exceed the ceilings set forth in GCC Clause 52.1 of this Contract. Any other such adjustments shall only be made with the Procuring Entity‟s prior written approval.

41. Counterpart Personnel

41.1. If so provided in Appendix III hereto, the Procuring Entity shall make available to the Consultant, as and when provided in such Appendix III, and free of charge, such Counterpart Personnel to be selected by the Procuring Entity, with the Consultant‟s advice, as shall be specified in such Appendix III. Counterpart Personnel shall work with the Consultant. If any member of the Counterpart Personnel fails to perform adequately any work assigned to such member by the Consultant which is consistent with the position occupied by such member, the Consultant may request the replacement of such member, and the Procuring Entity shall not unreasonably refuse to act upon such request.

41.2. The responsibilities of the Counterpart Personnel shall be specified in Appendix III, attached hereto, and the Counterpart Personnel shall not perform any work beyond the said responsibilities.

41.3. If Counterpart Personnel are not provided by the Procuring Entity to the Consultant as and when specified in Appendix III, and or if the Counterpart Personnel lack the necessary training, experience or authority to effectively undertake their responsibilities, the Procuring Entity and the Consultant shall agree on how the affected part of the Services shall be carried out, and the additional payments, if any, to be made by the Procuring Entity to the Consultant as a result thereof pursuant to GCC Clause 52 hereof.

42. Performance Security

42.1. Unless otherwise specified in the SCC, within ten (10) calendar days from receipt of the Notice of Award from the Procuring Entity but in no case later than the signing of the contract by both parties, the Consultant shall furnish the performance security in any the forms prescribed in the ITO Clause 34.2.

42.2. The performance security posted in favor of the Procuring Entity shall be forfeited in the event it is established that the Consultant is in default in any of its obligations under the contract.

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42.3. The performance security shall remain valid until issuance by the Procuring Entity of the Certificate of Final Acceptance.

42.4. The performance security may be released by the Procuring Entity and returned to the Consultant after the issuance of the Certificate of Final Acceptance subject to the following conditions:

(a) There are no pending claims against the Consultant or the surety company filed by the PROCURING ENTITY;

(b) The Consultant has no pending claims for labor and materials filed against it; and

(c) Other terms specified in the SCC.

42.5. In case of a reduction of the contract value, the Procuring Entity shall allow a proportional reduction in the original performance security, provided that any such reduction is more than ten percent (10%) and that the aggregate of such reductions is not more than fifty percent (50%) of the original performance security.

43. Standard of Performance

43.1. The Consultant shall perform the Services and carry out their obligations hereunder with all due diligence, efficiency and economy, in accordance with generally accepted professional techniques and practices, and shall observe sound management practices, and employ appropriate advanced technology and safe and effective equipment, machinery, materials and methods.

43.2. The Consultant shall always act, in respect of any matter relating to this Contract or to the Services, as faithful advisers to the Procuring Entity, and shall at all times support and safeguard the Procuring Entity‟s legitimate interests in any dealings with Sub-Consultants or third parties.

43.3. The Consultant shall furnish to the Procuring Entity such information related to the Services as the Procuring Entity may from time to time reasonably request.

43.4. The Consultant shall at all times cooperate and coordinate with the Procuring Entity with respect to the carrying out of its obligations under this Contract.

44. Consultant Not to Benefit from Commissions, Discounts, etc.

The remuneration of the Consultant pursuant to GCC Clause 53 hereof shall constitute the Consultant‟s sole remuneration in connection with this Contract or the Services and, subject to GCC Clause 45 hereof, the Consultant shall not accept for their own benefit any trade commission, discount or similar payment in connection with activities pursuant to this Contract or to the Services or in the discharge of their obligations hereunder, and the Consultant shall use its best efforts to ensure that any Sub-Consultants, as well as the Personnel and agents of either of them, similarly shall not receive any such additional remuneration.

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45. Procurement by the Consultant

If the Consultant, as part of the Services, has the responsibility of advising or procuring goods, works or services, for the Procuring Entity, the Consultant shall comply with any applicable procurement guidelines of the Funding Source, and shall at all times exercise such responsibility in the best interest of the Procuring Entity. Any discounts or advantages obtained by the Consultant in the exercise of such procurement responsibility shall be for the benefit of the Procuring Entity.

46. Specifications and Designs

46.1. The Consultant shall prepare all specifications and designs using the metric system and shall embody the best design criteria applicable to Philippine conditions. The Consultant shall specify standards which are accepted and well-known among industrial nations.

46.2. The Consultant shall ensure that the specifications and designs and all documentation relating to procurement of goods and services for this Contract are prepared on an impartial basis so as to promote national and international competitive negotiation.

47. Reports

The Consultant shall submit to the Procuring Entity the reports, deliverables and documents in English, in the form, in the numbers, and within the time periods set forth in Appendix II.

48. Assistance by the Procuring Entity on Government Requirements

48.1. The Procuring Entity may assist the Consultant, Sub-Consultants, and Personnel in the payment of such taxes, duties, fees and other impositions as may be levied under the Applicable Law by providing information on the preparation of necessary documents for payment thereof.

48.2. The Procuring Entity shall use its best efforts to ensure that the Government shall:

(a) provide the Consultant, Sub-Consultants, and Personnel with work permits and such other documents as shall be necessary to enable the Consultant, Sub-Consultants, or Personnel to perform the Services;

(b) arrange for the foreign Personnel and, if appropriate, their eligible dependents to be provided promptly with all necessary entry and exit visas, residence permits, and any other documents required for their stay in the Philippines for the duration of the Contract;

(c) facilitate prompt clearance through customs of any property required for the Services and of the necessary personal effects of the foreign Personnel and their eligible dependents;

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(d) issue to officials, agents and representatives of the Government all such instructions as may be necessary or appropriate for the prompt and effective implementation of the Services; and

(e) grant to foreign Consultant, any foreign Sub-Consultant and the Personnel of either of them the privilege, pursuant to the Applicable Law, of bringing into the Government‟s country reasonable amounts of foreign currency for purposes of the Services or for the personal use of the foreign Personnel and their dependents.

49. Access to Land

The Procuring Entity warrants that the Consultant shall have, free of charge, unimpeded access to all lands in the Philippines in respect of which access is required for the performance of the Services. The Procuring Entity shall be responsible for any damage to such land or any property thereon resulting from such access and shall indemnify the Consultant and each of the Personnel in respect of liability for any such damage, unless such damage is caused by the default or negligence of the Consultant or any Sub-Consultant or the Personnel of either of them.

50. Subcontract

50.1. Subcontracting of any portion of the Consulting Services, if allowed in the NDS, does not relieve the Consultant of any liability or obligation under this Contract. The Consultant will be responsible for the acts, defaults, and negligence of any sub-consultant, its agents, servants or workmen as fully as if these were the Consultant‟s own acts, defaults, or negligence, or those of its agents, servants or workmen.

50.2. Sub-consultants disclosed and identified during the negotiation may be changed during the implementation of this Contract, subject to compliance with the required qualifications and the approval of the Procuring Entity.

51. Accounting, Inspection and Auditing

51.1. The Consultant shall:

(a) keep accurate and systematic accounts and records in respect of the Services hereunder, in accordance with internationally accepted accounting principles and in such form and detail as shall clearly identify all relevant time changes and costs, and the bases thereof;

(b) permit the Procuring Entity or its designated representative and or the designated representative of the Funding Source at least once for short-term Contracts, and annually in the case of long-term Contracts, and up to one year from the expiration or termination of this Contract, to inspect the same and make copies thereof as well as to have them audited by auditors appointed by the Procuring Entity; and

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(c) permit the Funding Source to inspect the Consultant‟s accounts and records relating to the performance of the Consultant and to have them audited by auditors approved by the Funding Source, if so required.

51.2. The basic purpose of this audit is to verify payments under this Contract and, in this process, to also verify representations made by the Consultant in relation to this Contract. The Consultant shall cooperate with and assist the Procuring Entity and its authorized representatives in making such audit. In the event the audit discloses that the Consultant has overcharged the Procuring Entity, the Consultant shall immediately reimburse the Procuring Entity an amount equivalent to the amount overpaid. If overpayment is a result of the Consultant having been engaged in what the Procuring Entity (or, as the case may be, the Funding Source) determines to constitute corrupt, fraudulent, or coercive practices, as defined in GCC Clause 27.1(e) and under the Applicable Law, the Procuring Entity shall, unless the Procuring Entity decides otherwise, terminate this Contract.

51.3. The determination that the Consultant has engaged in corrupt, fraudulent, coercive practices shall result in the Procuring Entity and/or the Funding Source seeking the imposition of the maximum administrative, civil and criminal penalties up to and in including imprisonment.

52. Contract Cost

52.1. Except as may be otherwise agreed under GCC Clause 10, payments under this Contract shall not exceed the ceiling specified in the SCC. The Consultant shall notify the Procuring Entity as soon as cumulative charges incurred for the Services have reached eighty percent (80%) of this ceiling.

52.2. The cost of the Services shall be payable in Philippine Pesos and shall be set forth in the Appendix IV attached to this Contract.

53. Remuneration and Reimbursable Expenditures

53.1. Payments of Services do not relieve the Consultant of any obligation hereunder.

53.2. Remuneration for the Personnel shall be determined on the basis of time actually spent by such Personnel in the performance of the Services including other additional factors indicated in the SCC after the date determined in accordance with GCC Clause 22, or such other date as the Parties shall agree in writing, including time for necessary travel via the most direct route, at the rates referred to, and subject to such additional provisions as are set forth, in the SCC.

53.3. Remuneration for periods of less than one month shall be calculated on an hourly basis for time spent in home office (the total of 176 hours per month shall apply) and on a calendar-day basis for time spent away from home office (1 day being equivalent to 1/30th of a month).

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53.4. Reimbursable expenditures actually and reasonably incurred by the Consultants in the performance of the Services are provided in the SCC.

53.5. Billings and payments in respect of the Services shall be made as follows:

(a) The Procuring Entity shall cause to be paid to the Consultant an advance payment as specified in the SCC, and as otherwise set forth below. The advance payment shall be due after the Consultant provides a bank guarantee in favor of the Procuring Entity issued by a bank acceptable to the Procuring Entity in accordance with the requirements provided in the SCC.

(b) As soon as practicable and not later than fifteen (15) days after the end of each calendar month during the period of the Services, the Consultant shall submit to the Procuring Entity, in duplicate, itemized statements, accompanied by copies of receipted invoices, vouchers and other appropriate supporting materials, of the amounts payable pursuant to GCC Clauses 52.1 and 53 for such month. Separate monthly statements shall be submitted in respect of amounts payable in foreign currency and in local currency. Each separate monthly statement shall distinguish that portion of the total eligible costs which pertains to remuneration from that portion which pertains to reimbursable expenditures.

(c) The Procuring Entity shall cause the payment of the Consultant‟s monthly statements within sixty (60) days after the receipt by the Procuring Entity of such statements with supporting documents. Only such portion of a monthly statement that is not satisfactorily supported may be withheld from payment. Should any discrepancy be found to exist between actual payment and costs authorized to be incurred by the Consultant, the Procuring Entity may add or subtract the difference from any subsequent payments. Interest shall be paid for delayed payments following the rate provided in the SCC.

54. Final Payment

54.1. The final payment shall be made only after the final report and a final statement, identified as such, shall have been submitted by the Consultant and approved as satisfactory by the Procuring Entity. The Services shall be deemed completed and finally accepted by the Procuring Entity and the final report and final statement shall be deemed approved by the Procuring Entity as satisfactory ninety (90) calendar days after receipt of the final report and final statement by the Procuring Entity unless the Procuring Entity, within such ninety (90)-day period, gives written notice to the Consultant specifying in detail deficiencies in the Services, the final report or final statement. The Consultant shall thereupon promptly make any necessary corrections within a maximum period of ninety (90) calendar days, and upon completion of such corrections, the foregoing process shall be repeated.

54.2. Any amount which the Procuring Entity has paid or caused to be paid in accordance with this clause in excess of the amounts actually payable in

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accordance with the provisions of this Contract shall be reimbursed by the Consultant to the Procuring Entity within thirty (30) days after receipt by the Consultant of notice thereof. Any such claim by the Procuring Entity for reimbursement must be made within twelve (12) calendar months after receipt by the Procuring Entity of a final report and a final statement approved by the Procuring Entity in accordance with the above.

55. Lump Sum Contracts

55.1. For Lump Sum Contracts when applicable, notwithstanding the terms of GCC Clauses 10, 18.1, 31(c), 41.3, 53.2, 53.3, 53.4, 53.5, and 54.1, the provisions contained hereunder shall apply.

55.2. Personnel - Any replacement approved by the Procuring Entity in accordance with ITO Clause 29.3 shall be provided by the Consultant at no additional cost.

55.3. Staffing Schedule - Should the rate of progress of the Services, or any part hereof, be at any time in the opinion of the Procuring Entity too slow to ensure that the Services are completed in accordance with the Staffing Schedule, the Procuring Entity shall so notify the Consultant in writing and the Consultant shall at its sole cost and expense, thereupon take such steps as necessary, subject to the Procuring Entity‟s approval, or as reasonably required by the Procuring Entity, to expedite progress so as to ensure that the Services are completed in accordance with the Staffing Schedule.

55.4. Final payment pursuant to the Payment Schedule in Appendices IV and V shall be made by the Procuring Entity after the final report has been submitted by the Consultant and approved by the Procuring Entity.

55.5. Termination - Upon the receipt or giving of any notice referred to in GCC Clause 29 and if the Consultant is not in default under this Contract and has partly or substantially performed its obligation under this Contract up to the date of termination and has taken immediate steps to bring the Services to a close in prompt and orderly manner, there shall be an equitable reduction in the maximum amount payable under this Contract to reflect the reduction in the Services, provided that in no event shall the Consultant receive less than his actual costs up to the effective date of the termination, plus a reasonable allowance for overhead and profit.

55.6. Unless otherwise provided in the SCC, no additional payment for variation order, if any, shall be allowed for this Contract.

56. Liquidated Damages for Delay

If the Consultant fails to deliver any or all of the Services within the period(s) specified in this Contract, the Procuring Entity shall, without prejudice to its other remedies under this Contract and under the Applicable Law, deduct from the contract price, as liquidated damages, a sum equivalent to one-tenth of one percent of the price of the unperformed portion of the Services for each day of delay based on the approved contract schedule up to a maximum deduction of ten percent (10%) of the

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contract price. Once the maximum is reached, the Procuring Entity may consider termination of this Contract pursuant to GCC Clause 27.

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Section V. Special Conditions of Contract

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Special Conditions of Contract

GCC Clause 1.1(g) The Funding Source is:

The Government of the Philippines (GOP) through the GAA CY 2015 and the funds of the MWM Terminals, Inc. (“MWM”), the concessionaire

6.2(b) For a period of two years after the expiration of this Contract, the Consultant shall not engage, and shall cause its Personnel as well as their Sub-Consultants and its Personnel not to engage, in the activity of a purchaser (directly or indirectly) of the assets on which they advised the Procuring Entity under this Contract nor in the activity of an adviser (directly or indirectly) of potential purchasers of such assets. The Consultant also agree that their affiliates shall be disqualified for the same period of time from engaging in the said activities. As provided by Section 2.8 of the Instruction to Offerors (“ITO”) also referred to as the Negotiation Documents, the Consultant shall not enter into any future relationship or contract relative to or in connection with the Project which would have to be passed upon, reviewed and certified to by the Independent Consultant of the Project except for the procurement of an Operations and Maintenance Independent Consultant for the project.

7 Authority of Member in Charge

The Member in Charge is [name of member, address, and other necessary contact information].

NOTE: If the Consultant consists only of one entity, state “Not Applicable.”

8 Name of Resident Project Manager: ____________________________ The person designated as resident project manager shall serve in that capacity, as specified in GCC Clause 8.

10 No further instructions.

Should there be variations between the GCC/SCC and Form of Appointment in the Concession Agreement, a copy of which is attached as Annex “A”, the latter shall prevail to the extent that no relevant law, rule or regulation shall be violated thereby

12 The Authorized Representatives are as follows:

For the Procuring Entity: Assistant Secretary Jaime Fortunato A. Caringal For the Consultant: ___________________

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15.1 The addresses are: Procuring Entity: Department of Transportation and Communications Attention: Assistant Secretary Jaime Fortunato A. Caringal Address: 17th Floor, The Columbia Tower, Barangay Wack-Wack Ortigas Avenue, Mandaluyong City Facsimile: 654-7725 Email Address: [email protected] Consultants: __________________ Attention: __________________ Address: ____________________ Facsimile:___________________ Email Address: __________________

15.2 and 15.3 Notice shall be deemed to be effective as follows:

(a) in the case of personal delivery or registered mail, on delivery;

(b) in the case of facsimiles, within 3 hours following confirmed transmission; or (c) in the case of telegrams, within 24 hours following confirmed transmission.

18.3 Payable to [Name of Consultant]. 20

No additional provision; or, if the consultant is a JV, all partners to the JV shall be jointly & severally liable to the Procuring Entity

A commensurate level of accountability must be attached to the significant authority being assigned to the IC for patently erroneous acts which the DOTC could not have guarded against with the exercise of reasonable diligence.

22 None

24 Expiration of Contract Termination shall be on the earlier of the completion of the Independent Consultant‟s performance of its obligations and the termination of the Independent Consultant‟s appointment under Section 9 of Schedule 16 of the Concession Agreement.

34.2 Dispute Settlement All disputes shall be resolved in accordance with Section 22 of Schedule 16 Form of Appointment of the Concession Agreement.

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35.1 Documents Prepared by the Consultant and Software Developed shall become the Property of the Procuring Entity. The drawings, specifications, designs, reports, other documents and software prepared by the Consultant for the Procuring Entity under this Contract that shall become and remain the property of the Procuring Entity. Reproduction of aforesaid documents shall not be allowed except with prior approval of the Department of Transportation and Communications.

38.1 (d) Consultant‟s Actions Requiring Procuring Entity‟s Prior Approval

1. Organizational chart, staffing inputs in person-months, title and responsibility of each staff;

2. Format for the monthly and quarterly reports; 3. Form of the report and procedure for conducting Construction

Monitoring activities; 4. Form of the Incident Report for Incidents 5. The Format for the Certified DED; 6. The Format for the Notice of DED Non-Conformity; 7. The Format for the validation of the As-Built Drawings; 8. The Format of the Rectification Completion Notice; 9. The Format of the Rectification Inspection Notice; 10. The Format of the Evaluation of the Rectification Inspection; 11. The Form to be used for Punch List Inspections, which shall

include the procedure to be used in conducting the same; 12. Form of the Sub-Project Completion Report; 13. Form of the Contract Completion Report; 14. Format of the Certificate of Completion ;and 15. All other forms deemed necessary to the IC‟s functions.

39.5 The Consultant may change its Key Personnel only for reasons of death, serious illness, incapacity of an individual Consultant, and requires the Procuring Entity prior approval. An amount equal to the refund of the replaced Personnel's basic rate, which should be at least fifty percent (50%) of the total basic rate for the duration of the engagement, shall be imposed in case of non-compliance with the requirement.

42.1 Please refer to Schedule 16: Form of Appointment of the Concession Agreement

42.4(c) Please refer to Schedule 16: Form of Appointment of the Concession Agreement

52.1 The total ceiling amount in Philippine Pesos is Forty Eight Million Nine Hundred Ninety Two Thousand Nine Hundred Forty Four Pesos (PhP 48,992,944.00).

53.2 Not applicable. 53.4 Not applicable.

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53.5(a) No advance payment is allowed. DOTC will only pay for each accepted deliverables.

53.5(c) The interest rate is zero percent (0%). 55.6 No further instructions.

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Section VI. Terms of Reference

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INDEPENDENT CONSULTANT SOUTHWEST INTEGRATED TRANSPORT SYSTEM PPP PROJECT

TERMS OF REFERENCE

A. Background The Government of the Republic of the Philippines, acting through its Department of Transportation and Communications (hereinafter referred to as the "DOTC” or the “Grantor") have entered into an agreement (the “Concession Agreement”) with MWM Terminals, Inc., a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines (hereinafter referred to as the "Concessionaire") for the: (i) engineering, procurement, construction and financing of the Southwest Integrated Transport System Terminal (hereinafter referred to as the "ITS Terminal”) and access roads leading to the Southwest ITS Terminal (both of which shall be referred to as the "Works”); and the (ii) operation and maintenance of the Southwest ITS Terminal (“Project”). The Project consists of the development of a mass transportation intermodal terminal at the southwestern outskirts of Metropolitan Manila in order to provide effective interconnection between different transport modes and services and thus ensure efficient and seamless travel for the commuting public. The Grantor is in need of the services of an “Independent Consultant” (or “IC”) to review the design, construction, commissioning, operation and maintenance deliverables of the Concessionaire under the Concession Agreement. With this background, the DOTC intends to appoint an Independent Consultant, having not less than fifteen (15) years' relevant experience to carry out the functions outlined in Section C below, and compliant with all applicable Philippine tax laws, rules and regulations. The Grantor shall procure and award, on behalf of the Grantor and Concessionaire the pertinent contract, based on applicable provisions of R.A. No. 9184 and its Revised Implementing Rules and Regulations. As part of the competitive bidding process, the prospective Independent Consultant shall be required by the Grantor to submit a complete disclosure statement specifying all past, present and anticipated or planned future relationships of the prospective Independent Consultant to the Project and with every person who has or is likely to have a connection with it, confirming that there is or is not likely to be any conflict of interest.

B. Project Description 1. The Project to be effected by the Concessionaire consists of:

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1.1 the design, engineering and construction of the ITS Terminal, Access Road3 and the pedestrian connection/s between the ITS Terminal and LRT 1 Asia World Station concourse within eighteen (18) months from the Construction Start Date;

1.2 from its completion until the end of the Concession Period, the operation and maintenance of the ITS Terminal in accordance with the Concession Agreement;

1.3 the collection and remittance to Grantor of the Terminal Fee from the Users of the ITS Terminal;

1.4 the financing of the above activities; 1.5 the design, financing, engineering and construction of Commercial Assets,

carrying out of the Commercial Business, and collection of any Commercial Revenue at the Concessionaire‟s option; and

1.6 turn-over of the Project Assets to the Grantor at the end of the Concession Period

all in accordance with the Concession Agreement. 2 The accompanying work to be effected by the Grantor or for which the

Grantor is responsible consists of: 2.1 the provision or acquisition of the Project Land on Construction Start Date; 2.2 the provision of the ROW over the Access Road Land to facilitate the

construction of the Access Road, on Construction Start Date; and 2.3 the financing of the above activities under this section 2; all in accordance with the Concession Agreement (the obligations set out in Sections 1 and 2 shall collectively be referred to as the “Main Obligations”).

Refer further to attached “Annex A” – the Concession Agreement and its Schedules for Southwest Integrated Transport System Project.

C. Scope of IC Services

1. Functions in relation to the Main Obligations under the Concession Agreement

1.1 Grantor’s Delivery of Project Land

1.1.1 Upon the acquisition of the Project Land or any part thereof, the Grantor shall provide all the information and documents in relation to such acquisition to the Independent Consultant. Thereafter, the Independent Consultant shall undertake an inspection of such Project Land and, it shall:

1.1.1.1 confirm to the Grantor and the Concessionaire, by issuance of a

binding certificate, that such Project Land has been provided or acquired; or

3Capitalized terms used herein shall, unless otherwise provided in this Terms of Reference, have the meaning ascribed to them in the Concession Agreement executed by DOTC and MWM Terminal, Inc. on 24 April 2015.

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1.1.1.2 state the Grantor has not provided or acquired such Project Land, notifying the Grantor of all missing elements of such Project Land.

1.1.2 Where the Independent Consultant determines that the Grantor has not provided or acquired any part of the Project Land, it shall undertake further inspection once the Grantor has confirmed that the remainder of such Project Land (as notified by the Independent Consultant in accordance with paragraph 1.1.1.2) has been provided or acquired.

1.1.3 Where satisfied that the Grantor has acquired the Project Land the Independent Consultant shall issue a Certificate of Project Land acquisition to the Relevant Parties.

1.2 Concessionaire’s Submission of Documents

1.2.1 Approval of Design Submittals Schedule

1.2.1.1 The Independent Consultant shall within ten (10) days of receipt of the

same, review the Design Submittals Schedule and consider the proposed schedule against the timescales and Milestones stipulated in the Concession Agreement. If in the Independent Consultant's reasonable opinion the Design Submittals Schedule is consistent to the satisfaction of the Grantor, Concessionaire and the Independent Consultant with the timescales and Milestones stipulated in the Concession Agreement, it shall, subject to paragraph 2.3.2, approve the Design Submittals Schedule and issue a Certificate of Approval to the Concessionaire.

1.2.1.2 The Independent Consultant may require revisions to be made to the Design Submittals Schedule prior to issuing a Certificate of Approval. However, such revisions shall not unreasonably prejudice the Concessionaire‟s ability to achieve the Milestones set out in the Concession Agreement.

1.2.2 Issuance of Design Acceptance Certificate (and any updates)

General

1.2.2.1 The Independent Consultant agrees to follow the following principles in the approval of Detailed Design submitted by the Concessionaire: 1.2.2.1.1 The relevant Detailed Design is in accordance with the

relevant Minimum Performance Specification and Standards (MPSS) and Minimum Security Standards and Mandatory Requirements (MSSMR) as detailed in Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road) to the Concession Agreement;

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1.2.2.1.2 The relevant Detailed Design follows the minimum standards to be applied as detailed in Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road) and Prudent Industry Practice;

1.2.2.1.3 The relevant Detailed Design meets all Relevant Rules and Procedures; and

1.2.2.1.4 The Detailed Design does not, in the implementation, contemplate or require that the relevant Detailed Design is or is likely to:

(a) be completed later than the time provided for

that completion in the Concession Agreement; and/or

(b) lead to the costs to be borne by the Grantor in

carrying out their obligations under the Concession Agreement, being higher (whether by reason of Delay, inefficient operation or otherwise) that are contemplated by the Concession Agreement.

Submissions for Approval

1.2.2.2 Each relevant Detailed Design submission for approval provided by the Concessionaire shall be accompanied by: 1.2.2.2.1 the proposed relevant Detailed Design in respect of the

Works; and

1.2.2.2.2 an explanation, in such detail as is necessary or expedient to enable the Independent Consultant to fully and efficiently to understand the relevant Detailed Design, and in particular how it complies with the Design Requirements.

1.2.2.3 For the purposes of the Independent Consultant's consideration of the

relevant Detailed Design, where it requires further information to be provided by the Concessionaire in accordance with paragraph 1.2.2.2, it may reasonably request the same from the Concessionaire. In such case, the Independent Consultant shall promptly make such a request, in writing, of the Concessionaire.

Review and Approval of Detailed Design 1.2.2.4 The Independent Consultant shall review for compliance with the

Design Requirements the submissions of the Concessionaire of the Detailed Design and make a decision as to its approval, rejection or request for further information within ten (10) days of receipt of such submission from the Concessionaire. The Independent Consultant‟s

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responsibility shall be to determine the Detailed Design‟s compliance with Section 1.2.2 as well as the Design Requirements. The Independent Consultant shall not reject the Detailed Design on the sole ground that, in its opinion, the Detailed Design can be improved further, when it already complies with the Design Requirements.

1.2.2.5 Following the decision by the Independent Consultant in accordance with paragraph 1.2.2.4, where the Independent Consultant approves a submitted Detailed Design, the Independent Consultant shall issue a Design Acceptance Certificate within the time specified, approving the submitted Detailed Design.

Rejection of Detailed Design

1.2.2.6 If a submitted Detailed Design is rejected, the Independent Consultant shall issue a notice of rejection to the Concessionaire that must specify in detail why the submitted Detailed Design fails to comply with the Design Requirements and in general terms what the Independent Consultant considers necessary to be done to the submitted Detailed Design to make it compliant with the Design Requirements.

Request for Further Information 1.2.2.7 The Independent Consultant shall stipulate a reasonable time for the

Concessionaire to respond to a request for further information.

1.2.2.8 In the case of a rejection of a Detailed Design or request for further information, the Independent Consultant shall engage in an iterative dialogue with the Relevant Parties in relation to further submission (whether amended or a new Detailed Design) so as to maximize the probability that the further submission shall be approved.

1.2.3 Changes in the Detailed Design following issuance of a Design Acceptance

Certificate

1.2.3.1 The Grantor and Concessionaire shall ensure that the Independent Consultant is involved in the process for the submission and approval of Detailed Design Changes in accordance with Part 2 (Minimum Performance Specification and Standards) of Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road) to the Concession Agreement.

1.2.3.2 The Independent Consultant shall review the Relevant Parties‟ proposed Detailed Design Changes submitted after the Design Acceptance Certificate has been issued. In addition, the Independent Consultant shall evaluate the submitted Detailed Design Change and ensure the proposed Detailed Design Change has been submitted in accordance with the Concession Agreement.

1.2.3.3 The Independent Consultant shall review the impact of the proposed

Detailed Design Change to ascertain any material adverse effect upon:

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1.2.3.3.1 The cost of the relevant Works; 1.2.3.3.2 The probability that the requirements of the Design

Submittals Schedule shall be met; 1.2.3.3.3 The probability that the requirements of the Works

Timetable shall be met; and 1.2.3.3.4 The probability that the Required Extension Completion

Date shall be met.

1.2.3.4 Following a review in accordance with paragraphs 1.2.3.2 and 1.2.3.3, the Independent Consultant shall provide the Grantor and the Concessionaire with a report: 1.2.3.4.1 Detailing the findings of the Independent Consultant‟s

review of the proposed Detailed Design Change against the objectives and the submission requirements set in the Concession Agreement;

1.2.3.4.2 Prepared on a 'by exception' basis, setting out the conclusion(s) and any recommendation(s) of the Independent Consultant;

1.2.3.4.3 Where the Independent Consultant is satisfied that the Proposed Detailed Design Change meets the objectives and the submission requirements set in the Concession Agreement, then the Independent Consultant will issue a notice of approval authorizing the required changes to the Design Acceptance Certificate and will issue an updated Design Acceptance Certificate to the Concessionaire; and

1.2.3.4.4 Where the Independent Consultant considers the proposed Detailed Design Change does not satisfy the requirements of the Concession Agreement, identifying such deviations in any recommendation(s) made pursuant to paragraph 1.2.3.4.2 above, for the consideration of the Grantor and the Concessionaire.

1.2.4 Changes to Minimum Performance Specification and Standards (MPSS) following issuance of a Design Acceptance Certificate

1.2.4.1 The Grantor and Concessionaire shall ensure that the Independent

Consultant is involved in the process for the submission and approval of MPSS Changes in accordance with Part 2 (Minimum Performance Specification and Standards) of Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road) to the Concession Agreement.

1.2.4.2 The Independent Consultant shall review the Relevant Parties‟ proposed MPSS Changes submitted after the Design Acceptance

89

Certificate has been issued. In addition, the Independent Consultant shall evaluate the submitted MPSS Change and ensure the proposed MPSS Change has been submitted in accordance with the Concession Agreement.

1.2.4.3 The Independent Consultant shall review the impact of the proposed MPSS Change to ascertain any material adverse affect upon:

1.2.4.3.1 The cost of the relevant Works; 1.2.4.3.2 The quality of the relevant Works; 1.2.4.3.3 The probability that the requirements of the Design

Submittals Schedule shall be met; 1.2.4.3.4 The probability that the requirements of the Works

Timetable shall be met; and 1.2.4.3.5 The probability that the Required Construction

Completion Date shall be met.

1.2.4.4 Following a review in accordance with paragraph 1.2.4.2 and 1.2.4.3, the Independent Consultant shall provide the Grantor and the Concessionaire with a report: 1.2.4.4.1 detailing the findings of the Independent Consultant‟s

review of the proposed MPSS Change against the objectives in paragraph 5 and the submission requirements set in the Concession Agreement;

1.2.4.4.2 prepared on a 'by exception' basis, setting out the conclusion(s) and any recommendation(s) of the Independent Consultant;

1.2.4.4.3 where the Independent Consultant is satisfied that the Proposed MPSS Change meets the objectives and the submission requirements set in the Concession Agreement, then the Independent Consultant will issue a notice of approval authorizing the required changes to the Design Acceptance Certificate and will issue an updated Design Acceptance Certificate to the Concessionaire; and

1.2.4.4.4 where the Independent Consultant considers the proposed MPSS Change does not satisfy the requirements of the Concession Agreement, identifying such deviations in any recommendation(s) made pursuant to paragraph 1.2.4.4.2 above, for the consideration of the Grantor and the Concessionaire.

1.2.5 Assistance in Review of Draft Commercial Development Plan (and any updates)

1.2.5.1 The Independent Consultant shall within ten (10) days from receipt of

the Draft Commercial Development Plan or any amendment thereto, recommend to the Grantor a decision as to its approval or request for amendments, for the purpose of ensuring that the Commercial

90

Development Plan does not prevent, hamper, delay or adversely affect the implementation of the ITS Terminal. Amendments may only be requested on the basis that the Draft Commercial Development Plan is inconsistent with this Concession Agreement.

1.3 Concessionaire’s Completion of Construction

Commissioning and Acceptance

1.3.1 The Independent Consultant shall review the Commissioning and Acceptance

Plan relating to the ITS Terminal and Access Road, provided by the Concessionaire to verify to the satisfaction of the Relevant Parties that the Commissioning and Acceptance Plan and procedures:

1.3.1.1 includes all processes, outputs and contractual requirements of all

suppliers and Sub-Contractors of the Concessionaire; 1.3.1.2 provides clear milestones for the measurement of:

1.3.1.2.1 progress of the ITS Terminal to completion; 1.3.1.2.2 achieving the Completion Date on or before the

Required Completion Date; and 1.3.1.3 encompasses all the requirements contemplated in Schedule 5 Part 3

(Commissioning and Acceptance), and the Concession Agreement.

1.3.2 The Independent Consultant shall require the Concessionaire to amend or provide additions to the Commissioning and Acceptance Plan to meet the above requirements as necessary.

1.3.3 The IndependentConsultant shall be present at all Commissioning and Acceptance Tests. This shall include the Commissioning and Acceptance Tests associated with the Works and various parts thereof as contemplated in the Concession Agreement.

Commissioning and Acceptance Notice

1.3.4 Following each Commissioning and Acceptance Test, the Independent

Consultant shall, within ten (10) days of the Concessionaire carrying out the Commissioning and Acceptance Tests, issue a Commissioning and Acceptance Notice to the Relevant Parties where the requirements contemplated in Concession Agreement have been met and the Independent Consultant shall comply with the provisions of Concession Agreement to issue a „Provisional Acceptance Certificate‟ or a „Full Acceptance Certificate‟, whichever is applicable.

Provisional Acceptance Certificate

1.3.5 When the requirements of Section 12.8 (Substantial Acceptance) of the Concession Agreement are satisfied, the Independent Consultant shall issue a Provisional Acceptance Certificate(s) (including the detail at Sections 12.8 of the Concession Agreement).

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1.3.6 Following receipt of a notice from the Concessionaire in accordance with Section 12.11 (Notice of rectification of Punch List Items) of the Concession Agreement, the Independent Consultant shall:

1.3.6.1 be present at the re-testing of any relevant Punch List Item(s); and 1.3.6.2 comply with its obligations under the provisions of Section 12.6

(Determination) of the Concession Agreement in relation to such Punch List Item(s).

1.3.7 Following a re-test of any relevant Punch List Item(s), where such Punch List Item(s) are assessed by the Independent Consultant as: 1.3.7.1 having been rectified, the Independent Consultant shall comply with

the provisions of paragraph 1.3.10 and 1.3.7.2 subject to Section 12.12 (Failure to rectify defects) of the Concession

Agreement, not having been rectified, the Independent Consultant shall comply with the provisions of paragraph 1.3.9.

Rejection of Commissioning and Acceptance Test

1.3.8 The Independent Consultant may reject a Commissioning and Acceptance Test. In doing so the Independent Consultant shall provide the Grantor and the Concessionaire with an Independent Consultant Failure Report specifying the detail contemplated in the Concession Agreement.

1.3.9 Once notified by the Concessionaire that the requirements of Sections 12.13

(Rejection) of the Concession Agreement have been met, the Independent Consultant shall observe the requirements of Provisional Acceptance Certificate.

Full Acceptance

1.3.10 The Independent Consultant shall issue a Final Acceptance Certificate for the Works to the Concessionaire as contemplated in Section 12.7 (Full acceptance) of the Concession Agreement.

2. Functions not related to the Main Obligations under the Concession

Agreement 2.1 Assistance during Termination Proceedings 2.1.1 On a termination of the Concession Agreement the Independent Consultant

shall provide such assistance as is within its power to the Expert to determine the sums payable upon the termination pursuant to the Concession Agreement including the certification to the Expert of the values of: 2.1.1.1 works in progress and other capital works carried out and paid for by

the Concessionaire; and 2.1.1.2 total cost incurred (net of accumulated amortization or depreciation, till

the time of termination of the Concession Agreement) of capital works

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approved by the Grantor and carried out and paid for by the Concessionaire

and shall confirm the absence of double counting in the valuations thereof. 2.2 Assistance during Dispute Resolutions

2.2.1 As and when requested by the Grantor or the Concessionaire, the Independent

Consultant shall participate in the resolution of any dispute between the Grantor and the Concessionaire under Section 31 (Dispute Resolution) of the Concession Agreement to the extent that the issues that are the subject of dispute under the Concession Agreement and have been referred to the said dispute resolution procedure relate to any of the Independent Consultant's services, duties and/or obligations.

2.3 Opinion on Sufficiency of Time Extensions 2.3.1 Where the Grantor and the Concessionaire are unable to agree upon any Time

Extension in accordance with Sections 14.6 (Consequences of Grantor Delay Event) and 14.7 (Consequences of Force Majeure Delay Event) of the Concession Agreement, the Independent Consultant shall promptly meet with the Grantor and the Concessionaire to discuss such Time Extension requirement.

2.3.2 Within three (3) working days of the meeting in accordance with paragraph 1.2.2.1, the Independent Consultant shall notify the Grantor and the Concessionaire in writing of its determination of the relevant Time Extension. Such determination shall be binding.

3. General Functions or Tasks

3.1 Perform all of the duties, tasks, functions and obligations; and exercise all of

the rights (as appropriate), of the Independent Consultant as set out and provided in the Concession Agreement or as would be reasonably foreseen by an experienced Independent Consultant as forming a necessary part of an Independent Consultant‟s duties.

3.2 Monitor construction activities as follows:

3.2.1 During the carrying out of the Works, visit that part of the Works at

appropriate intervals to inspect the various elements of the Works in the presence of the relevant Works Subcontractor (if so required by them) to verify that the same are constructed in accordance with the requirements of the Concession Agreement; and keep the Grantor and the Concessionaire advised of such matters. Reviewing and determining whether the mitigations identified in the environmental and social management system (“ESMS”) developed by the Concessionaire are being applied and approving the same (in accordance with Section 10.1.c (Design) of the Concession Agreement) and the assessment of the E&S management and monitoring plans prepared by the Concessionaire as required by Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road) of the Concession Agreement.

93

3.2.2 Monitor, inspect and keep the Grantor and the Concessionaire advised of the

state and progress of the Work(s) and participate, as required, in the procedures for the identification, approval and implementation of Changes in accordance with the Concession Agreement.

3.2.3 Undertake regular site visits throughout the duration of the IC Services,

recognizing that the frequency and timing of the Independent Consultant's visits shall be dependent on the progress of Works at and on the Project Land.

3.2.4 Undertake the Service Inspection. 3.2.5 Review the O&M Manual submitted by the Concessionaire and provide

recommendations to the Grantor for its approval;

3.3 Comply with its reportorial obligations as follows: 3.3.1 In accordance with the Concession Agreement, the Independent Consultant

shall provide the following: Certification 3.3.1.1 Certificate of Project Land acquisition; 3.3.1.2 Certificate of Approval of Design Submittals Schedule; 3.3.1.3 Design Acceptance Certificate (and any updates); 3.3.1.4 Provisional Acceptance Certificate(s); and/or Final Acceptance

Certificate; and 3.3.1.5 certificate of approval of Proposed Scheduling System Reports and Notices, together with all notices and reports as required by the Grantor and the Concessionaire under the provisions of the Concession Agreement, including but not limited to: 3.3.1.6 Commissioning and Acceptance Notice; 3.3.1.7 Detailed Design Rejection Notice; 3.3.1.8 Independent Consultant Failure Report; 3.3.1.9 Notice regarding Construction Completion Date is not likely to be

achieved on or before the Required Completion Date; and 3.3.1.10 Notice regarding Concessionaire‟s breach of its obligation under the

Concession Agreement

3.3.2 Provide to the Grantor and/or the Concessionaire at their request such additional copies of all or any of the documents prepared by the Independent Consultant as are reasonably requested by the Grantor and/or the Concessionaire from time to time and provide such additional information and co-operation as is reasonably required in connection with the same.

3.4 Liaise, as necessary, with the nominated representatives of the Concessionaire and the Grantor.

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3.5 Undertake an audit of the quality control documentation for the Works to verify that quality control in accordance with the Minimum Performance Standards and Specifications (or “MPSS”) relating to the Works has been implemented.

4. Term of Contract Termination shall be on the earlier of the completion of the Independent Consultant‟s performance of its obligations and the termination of the Independent Consultant‟s appointment under Section 9 of Schedule 16 of the Concession Agreement.

D List of Key Personnel

Key Personnel Minimum

Educational Qualification

Preferred Length of Professional

Experience4

Experience on Eligible Assignments

Project Manager

Licensed in Civil Engineering,


10 years He should have led project teams for at least two (2) Eligible Assignments provided that 1. The minimum cumulative development cost must be at least Four Hundred Million Philippine Pesos (Php 400,000,000), excluding the price of land; and 2.Each individual project must have a minimum development cost of at least One Hundred Million Philippine Pesos (Php 100,000,000); and 3. Each individual project must involve a capacity of at least thirty (30) parking bays for land surface transport vehicles with four (4) or more wheels, excluding rail.

Civil/ Structural Engineer –

Vertical

Licensed in Civil Engineering /

Structural Engineering


7 years He should have worked as civil / structural engineer on at least one (1) Eligible Assignment provided that the project is at least two-storey.

Civil/ Structural Engineer –Horizontal

Licensed in Civil Engineering /

Structural Engineering


7 years He should have worked as civil /structural engineer on at least one (1) Eligible Assignment provided that the project has a concrete paved road at least half a kilometer in length and at least seven (7) meters wide.

Operations Licensed in any With a masteral 5 years He should have been involved in

4 Professional experience refers to the experience of the Key Personnel in the position he/she is being nominated for. Experience in the academe is not counted.

95




Experience4


and Maintenance

Expert

Engineering course

degree related to any Engineering course

operations and maintenance of at least one (1) Eligible Assignment.

Electrical Engineer

Licensed in Electrical

Engineering

With a masteral degree related to Electrical Engineering

5 years He should have worked as an electrical engineer on at least one (1) Eligible Assignment.

Transport Planner

Graduate of any bachelor's degree

1. An engineering course; and/or 2. With a Masteral degree in Transport Planning

7 years He should have been engaged as a Transport Planner in at least one (1) Eligible Assignment, preferably on a project involving transport terminal planning, including but not limited to forecasting facility requirements based on projected passenger demand and setting out operational requirements and minimum performance standards and specifications.

Deputy Project

Manager

Licensed in Civil Engineering


7 years He should have led project teams for at least one (1) Eligible Assignment provided that 1. The minimum cumulative development cost must be at least Four Hundred Million Philippine Pesos (Php 400,000,000), excluding the price of land; and 2.Each individual project must have a minimum development cost of at least One Hundred Million Philippine Pesos (Php 100,000,000); and 3. Each individual project must involve a capacity of at least thirty (30) parking bays for land surface transport vehicles with four (4) or more wheels, excluding rail.

Architect Licensed in Architecture

With a masteral degree to Architecture

5 years He must have worked as senior architect on at least one (1) Eligible Assignment.

Safety Expert/ Engineer

Graduate of any Engineering course, with

certification on Safety

Engineering

5 years He should have worked as safety expert on at least one (1) Eligible Assignment.

Quantity Surveyor/

Cost Engineer


course

With a masteral degree related to Civil Engineering

5 years He should have worked as quantity surveyor/cost engineer on at least one (1) Eligible Assignment.

Mechanical Licensed in With a masteral 5 years He should have worked as a

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Experience4


Engineer Mechanical Engineering

degree related to Mechanical Engineering

mechanical engineer on at least one (1) Eligible Assignment.

IT/ MIS Expert

Graduate of any information

technology or computer/engine

ering science course

With a masteral degree related to information technology or engineering science course.

5 years He should have demonstrated experience in the design / development / implementation / maintenance of at least one (1) IT systems or MIS.

Materials/Quality Control

Engineer


Licensed in Materials Engineering

5 years He should have demonstrated experience as Materials Engineer in the construction of at least one (1) Eligible Assignment.

Environmental Specialist

Licensed Environmental

Planner

With a masteral degree related to Environmental Planning

7 years He should have demonstrated experience in environmental impact assessment and mitigation measures for at least five (5) projects in accordance with the specific environmental and safeguard requirements in the Philippines and of existing Philippine laws.

Surveyor Licensed in Geodetic

Engineering

With a masteral degree related to Geodetic Engineering

5 years

Sanitary Engineer

Licensed in Sanitary

Engineering

With a masteral degree related to Sanitary Engineering

5 years

Legal Specialist

Integrated Bar of the Philippines

member in good standing

With a masteral degree related to Law

7 years He should have demonstrated experience in providing legal services/advice in relation to infrastructure projects.

The Independent Consultant shall determine the need for any additional staff/personnel outside the Key Personnel necessary to perform the scope of work set out in the Negotiation Documents. All costs arising from the engagement of such staff/personnel shall be included in the proposal. Eligible Assignments

Eligible Assignments include those that have allowed the candidate to gain the following experience in the development of any of the following: a bus terminal, commercial complex, shopping mall, airport terminal, parking complex, freight terminal.

E Description/Specification for the Contract

Refer to “Schedule 16: Independent Consultant – Form of Appointment” of the Concession Agreement in relation to Southwest Integrated Transport System Project.

97

Refer to attached “Annex B” – Detailed Requirements of the Independent Consultant per Southwest Integrated Transport System Project Concession Agreement and its Schedules. F Approved Budget for the Contract The total cost of the contract (inclusive of professional fees, out-of-pocket expenses, reimbursable expenses and taxes) is capped at Forty Eight Million Nine Hundred Ninety Two Thousand Nine Hundred Forty Four Pesos (Php 48,992,944.00). The DOTC intends to apply the sum of Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy Two Pesos (Php 24,496,472.00) through GAA CY 2015 being the Approved Budget for the Contract (ABC), and the funds of the MWM Terminals, Inc. amounting to Twenty Four Million Four Hundred Ninety Six Thousand Four Hundred Seventy Two Pesos (Php 24,496,472.00) to payments under the contract of the Independent Consultant for the Southwest Integrated Transport System PPP Project.

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“Annex B”

Detailed Requirements of the Independent Consultant under the Concession Agreement Section

Reference Scope Deadline Remarks

Schedule 16 Issue a certificate of Project Land Provision or Acquisition

Not defined* (1) The Grantor shall provide the Independent Consultant with all the information and documents in relation to the provision or acquisition. Thereafter, the Independent Consultant shall undertake an inspection of such Project Land and, it shall: (a) confirm to the Relevant Parties, by issuance of a binding certificate, such Project Land has been acquired; or (b) state the Grantor have not acquired such Project Land, notifying the Grantor of all missing elements of such Project Land. (2) Where the Independent Consultant determines that the Grantor have not provided or acquired any part of the Project Land, it shall undertake further inspection once the Grantor has confirmed that the remainder of such Project Land has been provided or acquired. (3) Where satisfied that the Grantor has provided or acquired the Project Land the Independent Consultant shall issue a Certificate of Project Land provision or acquisition to the Relevant Parties.

Schedule 5 Part 2; Schedule 16 Review and approve the Design

Submittals Schedule Within ten (10) days from receipt of the Design Submittals Schedule.

The Independent Consultant may either approve the Design Submittals Schedule or require revisions thereto. If revisions are required, the Concessionaire shall make such revisions (but shall be entitled to make representations to the Independent Consultant if it considers that the revisions required would unreasonably prejudice its ability to achieve the

99

Section Reference Scope Deadline Remarks

Milestones). Schedule 5 Part 2; Schedule 16

Issue the Design Acceptance Certificate

Within ten (10) business days from receipt of the Detailed Design.

A Design Acceptance Certificate is a certificate given by the Independent Consultant to the Concessionaire, after consultation with the Grantor, stating that the Detailed Design in respect of the part of the Works to which it relates complies with the Design Requirements The Independent Consultant shall decide whether the Detailed Design is approved, partially approved (with a request for further information from the Concessionaire relating to the submitted Detailed Design) or rejected. After having a submitted Detailed Design rejected or a request for further information, the Concessionaire and the Independent Consultant shall engage in iterative dialogue in relation to the further submission to be made (whether of an amended or a new Detailed Design) so as to maximize the probability that the further submission shall be approved.

Schedule 16 Review and determine whether the mitigations identified in the E&S Impact Assessment submitted by the Concessionaire are being applied and approving the same

Not defined* During the carrying out of the Works, visit that part of the Works at appropriate intervals to inspect the various elements of the Works in the presence of the relevant Works Subcontractor (if so required by them) to verify that the same are constructed in accordance with the requirements of the Concession Agreement; and keep the Relevant Parties advised of such matters. This provision includes the reviewing and determining whether the mitigations

100


identified in the E&S Impact Assessment submitted by the Concessionaire are being applied and approving the same (in accordance with Section 10.1.c (Design) of this Concession Agreement) and the assessment of the E&S management and monitoring plans prepared by the Concessionaire as required by Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and Access Road).

Schedule 5 Part 2 Engagement and participation in the processes for the evaluation and determination of proposals for changes to Detailed Designs and MPSS

Not defined*

Section 15.11; Schedule 15 Part 1; Schedule 16

Review the O&M Manual submitted by the Concessionaire and provide recommendations to the Grantor for its approval. Determine whether the Concessionaire has adopted provisions necessary to ensure the safe (including, without limitation, structural safety and life, fire and safety systems) operation and maintenance of the ITS Terminal

Not defined*

Section 12.2.b; Schedule 16; Review the Commissioning and

Acceptance Plan relating to the Within thirty (30) days of receipt of the Commissioning

101


ITS Terminal and Access Road;

The Grantor and the Independent Consultant shall provide their comments and suggestions for modifications of the Commissioning and Acceptance Plan; and

Approve the final Commissioning and Acceptance Plan after taking into account any observations from the Grantor.

and Acceptance Plan. Not defined*

Section 12.3.a(2); Schedule 16;

Attend all Commissioning and Acceptance Tests.

Not defined*

Section 12.3.(c) Agree (with Concessionaire and Grantor) on the reduction in time provided for such re-testing.

Not defined*

Section 12.6 Issue a Commissioning and Acceptance Notice to the Parties.

Within ten (10) days from the carrying out of the Commissioning and Acceptance Tests.

Section 12.7.a Issue a Final Acceptance Certificate for the Tested Works if the Works comply with the relevant Detailed Design and

Within ten (10) days from the issuance of the Commissioning and Acceptance Notice.

The issue of the Final Acceptance Certificate shall signify achievement of the Construction Completion Date.

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MPSS. Section 12.8 Issue a Provisional Acceptance

Certificate if the Works substantially comply with the relevant Detailed Design and MPSS.

Within ten (10) days from the issuance of the Commissioning and Acceptance Notice

Following receipt of a notice from the Concessionaire in accordance with Section 12.11 (Notice of rectification of Punch List Items) of the Concession Agreement, the Independent Consultant shall: (a) be present at the re-testing of any relevant Punch List Item(s); and (b) comply with its obligations under the provisions of Section 12.6 (Determination) of the Concession Agreement in relation to such Punch List Item(s).

Section 12.13 Issue a report in respect of the relevant part or parts of the Tested Works ("Independent Consultant Failure Report") upon finding that (a) the Commissioning and Acceptance Test has not been carried out in accordance with the Commissioning and Acceptance Plan; or (b) Tested Works do not comply with the Commissioning and Acceptance Standards.

Within ten (10) days from issuance of the Commissioning and Acceptance Notice.

Section 14.6.a; Section 14.7.a; Schedule 16

Determine the Time Extension in the event of dispute between Grantor and Concessionaire.

Within three (3) working days from the conduct of meeting with the Relevant Parties to discuss the Time Extension requirement.

If the Concessionaire is delayed by a Grantor Delay Event or MAGA Delay Event or Force Majeure Delay Event, the Concessionaire shall be entitled to a Time Extension as may be reasonably required to complete the Works. The amount of the Time Extension shall be reduced to the extent that there is a Concessionaire Delay Event.

Section 15.8 Review the Commercial No later than fifteen (15) days

103


Development Plan and assist the Grantor in the approval or the making of request for any amendments to the Draft Commercial Development Plan, for the purpose of ensuring that the Commercial Development Plan does not prevent, hamper, delay or adversely affect the implementation of the ITS Terminal.

after the receipt of the Draft Commercial Development Plan or any amendment thereto

Section 15.12.a Approve and certify the proposed information technology system and software for the preparation, management, monitoring and implementation of timetable/departure schedule of the provincial buses (“Proposed Scheduling System”).

Not defined*

Section 19.1; Schedule 5 Part 1 Inspect, check or test: (1) the

extent (including as to quality) of the Works and the provision of any Service; and (2) any part or parts of the Project Assets

Not defined* Can be done by either the Grantor or Independent Consultant.

Section 21.2.b Receive (on a monthly basis) from Concessionaire copies of

Report on Works from the Construction Start Date to the

None From the Construction Start Date to the Construction Completion Date the Concessionaire

shall submit to the Grantor (with a copy to the Independent Consultant) on a monthly basis no later

104


Construction Completion Date.

than thirty (30) days after the end of each month a Report on Works in the format contained in Schedule 17 (Reports) and containing the

information required therein.

Section 24.5.b In cases of damage caused by Force Majeure, resolve dispute between the Parties as to whether restoration would be “economic.”

Not defined* In Section 24.5, "economic" means that the Concessionaire is able to recover its share of the cost of the restoration, reconstruction or repair work (including the financing amortization and costs on any debt incurred to finance such restoration, reconstruction or repair) over the Concession Period (as extended), as may be determined by the Independent Consultant. A dispute between the Parties as to whether restoration would be economic shall be resolved by the Independent Consultant.

Section 26.3 Determine extension to the Concession Period in cases when Grantor Compensation has to be given to the Concessionaire.

Not defined* Grantor Compensation shall be through an adjustment to the Annual Grantor Payment, the making of additional payments to the Concessionaire, other forms of compensation agreed by the Parties ("Grantor Compensation Payment") or (by agreement between the Parties) an extension to the Concession Period (to be determined by the Independent Consultant) or a combination of the above, subject to the applicable Legal Requirements.

Schedule 16; Section 27.5.b(3)

Carrying out the duties required in the event of Termination as contemplated in Schedule 8 (Financial Consequences of

Not defined* On a termination of the Concession Agreement the Independent Consultant shall provide such assistance as is within its power to the Expert to determine the sums payable upon the termination

105


Termination), pursuant to Schedule 8 to the Concession Agreement including the certification to the Expert of the values of “WIP” and “Concessionaire Capex” (each defined in Schedule 8 and shall confirm the absence of double counting in the valuations thereof).

Schedule 5 Part 1 Engagement and participation in questions concerning the disposal of Project Assets.

Not defined*

* As per Section 10.1.g of the Concession Agreement; where the Independent Consultant is required to give an approval o r consent or issue a certification, then, unless a specific other period of time is stated, the Grantor shall ensure that he does so within fourteen (14) days of receipt of the relevant documents or request. Note: Independent Consultant shall refer to the Concession Agreement enclosed with this document for further details of the responsibilities of the Independent Consultant provided under the Concession Agreement.

106

Section VII. Negotiation Forms

107

Proposal Submission Form

[Date] [Name and address of the Procuring Entity] Ladies/Gentlemen:

In connection with your Invitation to Offerors to Negotiate dated [insert date] for [Title of Project], [Name of Consultant] hereby expresses interest in participating in the Negotiated Procurement for said Project and submits the attached documents in compliance with the Negotiation Documents therefor.

In line with this submission, we certify that: a) [Name of Consultant] is not blacklisted or barred from bidding by the GOP or

any of its agencies, offices, corporations, or LGUs, including foreign government/foreign or international financing institution whose blacklisting rules have been recognized by the Government Procurement Policy Board, and that each of the documents submit; and

b) Each of the documents submitted herewith is an authentic copy of the original, complete, and all statements and information provided therein are true and correct.

We acknowledge and accept the Procuring Entity‟s right to inspect and audit all records relating to our submission irrespective of whether we are declared eligible or not.

Yours sincerely, Signature

Name and Title of Authorized Signatory Name of Consultant

Address

EDF No. 1

108

EDF No. 2

STATEMENT O F O N-GO ING PRO JECTS

List of On-going Government and Private Contracts, including contracts awarded but not yet started, whether similar in nature and complexity to the contract to be bid.

Name of Offeror :

Business Address :

Name and Location of

Project

Description of the

Services

Type of Consulting Services

(Specify Whether Lone Consultant,

Sub-contractor, or as Lead JV Member

Specifying Nature, Degree and Scope of

Participation)

Classification (Government / Private) of client and Address

Date of Contract

(mm/yyyy)

Amount of

Contract

Participation of firm in Amount

of Contract (If Joint Venture)

Contract Duration (mm/yyyy)

to (mm/yyyy)

Development Cost of Project5

Capacity of the

Project (specify

number of parking bays for various

categories of vehicles)

1

2

3

4

5

6

7

8

9

Note that parts left blank will not be considered.

Submitted by:

Name of Authorized Representative of Offeror

Position

Date

5This refers to the Development Cost of the Project and not the Consulting Cost of the Project.

109

EDF No. 3

STATEMENT O F CO MPLETED PRO JECTS

List of Completed Government and Private Contracts, whether similar in nature and complexity to the contract to be bid within the last fifteen (15) years prior to deadline for the submission and receipt of Eligibility Documents

Name of Offeror: :

Business Address : :

Name and Location of

Project

Description of the

Services

Type of Consulting

Services (Specify Whether Lone Consultant, Sub- contractor,

or as Lead JV Member

Specifying Nature, Degree

and Scope of Participation)

Classification (Government /

Private) of client and Address

Date of Contrac

t (mm/yy

yy)

Amount of

Contract

Participation of firm in Amount of Contract (If

Joint Venture)

Contract Duration (mm/yyy

y) to (mm/yyy

y)

Development

Cost of Project6

Capacity of the

Project (specify

number of parking bays for various


1

2

3

4

5

6

7

8

9

Attachment for completed Similar Contracts:

1 Contract; and

2 Certificate or acceptable proof of satisfactory completion or acceptance issued by the client or equivalent document as stated in the EDS.

In lieu of such attachments and subject to inspection of the originals by DOTC, the Offeror may also submit a certificate from their client summarizing salient portions of such attachments, which should include, but not limited to the details required in this form. However, a Offeror who is determined to have the highest bid must allow the DOTC, during the post-qualification stage, to inspect and/or examine the originals of the attachments to this Form. Equivalent documents to the above-listed documents shall also be acceptable. Note that parts left blanked will not be considered.

Submitted by:


Position Date

6This refers to the Development Cost of the Project and not the Consulting Cost of the Project.

110

EDF No. 4

STATEMENT O F KEY PERSO NNEL FO R CO NSULTING SERVICES

Name of Offeror :

Business Address :

Field of Expertise/Name of Personnel

Name and brief description of

Eligible Assignment

Involved With

Duration of Involvement with Eligible Assignment

(mm/yyyy) to (mm/yyyy)

Position and Involvement in

the Eligible Assignment

(please indicate if engaged

intermittently)

Cost of Project

handled in the Eligible Assignment

Capacity of the Project handled in the Eligible Assignment

(specify number of

parking bays for various


Number of Study Currently

Involved With and Duration of

involvement (mm/yyyy) to

(mm/yyyy)

A Project Manager

1

To

3

B Deputy Project Manager

1

To

3

C Civil/Structural Engineer - Vertical

Number of Storey of the

Eligible Assignment

1

To

3

D Civil/Structural Engineer –Horizontal

Length of Concrete

Pave Road in the

Eligible Assignment

Width of Concrete

Pave Road in the Eligible Assignment

1

To

3

E Architect

1

To

3

F Operations and Maintenance Expert

1

To

3

G Safety Expert/ Engineer

1

111

To

3

H Quantity Surveyor/Cost Engineer

1

To

3

I Electrical Engineer

1

To

3

J Mechanical Engineer

1

To

3

K IT/ MIS Expert

1

To

3

L Transport Planner

1

To

3

M Materials/Quality Control Engineer

1

To

3

N Environmental Specialist

1

To

3

O Surveyor

1

To

3

P Sanitary Engineer

1

To

3

Q Legal Specialist

1

To

3

It is hereby confirmed that the above consultants are registered professionals authorized by the appropriate regulatory body to practice their profession.

112

Note:

1. Should the personnel mentioned above are "on-call" or not a permanent employee of the consulting firm, please provide evidence that said personnel agreed to be nominated and once the firm is short listed, the personnel will submit letter of commitment. 2. Parts left blank will not be considered.

Attachment:

1

Certified true copy of the nominee‟s PRC license reflecting the license number and for the case of foreign individuals, any proof of submission of application to the Embassy for consularization.

2 Certified true copy of Certification for the case of Safety Expert/ Engineer

Submitted by:


Position

Date

113

EDF No. 5 NOTARIZED STATEMENT OF PAST, PRESENT AND ANTICIPATED OR

PLANNED FUTURE RELATIONSHIPS Name of Offeror: Business Address: Republic of the Philippines ) ) s.s. I, (name of authorized representative), (citizenship), of legal age, with office address at (address), as the (position/designation) of (name of entity represented), a (corporation/partnership) organized and existing under and by virtue of the laws of (place of incorporation/registration) hereby certify, for and on behalf of (name of entity represented), that (name of entity represented) and/or the nominated Key Personnel:

(1) was not involved in any manner in the Southwest Integrated Transport System PPP Project for or on behalf of DOTC, PPP Center, the consortium of MWM Terminals or any member or contractor thereof, or Filinvest Land Inc. or any of its contractors, by: (a) providing advice during the preparation of the feasibility study and/or business case; (b) rendering assistance in the preparation of bids of the consortium of MWM Terminals and/or Filinvest Land Inc.; (c) rendering assistance in the evaluation of bids submitted for the -Southwest Integrated Transport System PPP Project; and (d) being involved in any manner in the Southwest Integrated Transport System PPP Project that could compromise our professional independence in undertaking the project.

(2) has no involvement and is not anticipated to have any involvement in the implementation of the Southwest Integrated Transport System PPP Project for and on behalf of DOTC, PPP Center, and MWM Terminals, Inc., or any of its shareholders, agents, and contractors.

Date and Place of Execution. For and on behalf of (Name of Entity) (Signature of Authorized Representative) ______________________________________ (Name) (Designation) SUBSCRIBED AND SWORN TO before me this (____) day of (month and year) at (place), affiant exhibiting to me his/her (proof of identity acceptable under Philippine notarial regulations), issued at (city) on (date).

114

Notary Public Doc. No.: _________ Page No.: _________ Book No.: ________ Series of 2015.

115

OMNIBUS SWORN STATEMENT REPUBLIC OF THE PHILIPPINES ) CITY/MUNICIPALITY OF ______ ) S.S.

A F F I D A V I T

I, [Name of Affiant], of legal age, [Civil Status], [Nationality], and residing at [Address of Affiant], after having been duly sworn in accordance with law, do hereby depose and state that:

1. Select one, delete the other:

If a sole proprietorship: I am the sole proprietor of [Name of Consultant] with office address at [address of Consultant]; If a partnership, corporation, cooperative, or joint venture: I am the duly authorized and designated representative of [Name of Consultant] with office address at [address of Consultant];

2. Select one, delete the other:

If a sole proprietorship: As the owner and sole proprietor of [Name of Consultant], I have full power and authority to do, execute and perform any and all acts necessary to represent it in the negotiation for [Name of the Project] of the [Name of the Procuring Entity]; If a partnership, corporation, cooperative, or joint venture: I am granted full power and authority to do, execute and perform any and all acts necessary and/or to represent the [Name of Offeror] in the negotiations shown in the attached [state title of attached document showing proof of authorization (e.g., duly notarized Secretary’s Certificate issued by the corporation or the members of the joint venture)];

3. [Name of Consultant] is not “blacklisted” or barred from bidding by the Government of the Philippines or any of its agencies, offices, corporations, or Local Government Units, foreign government/foreign or international financing institution whose blacklisting rules have been recognized by the Government Procurement Policy Board;

4. Each of the documents submitted in satisfaction of the negotiation requirements is an authentic copy of the original, complete, and all statements and information provided therein are true and correct;

5. [Name of Consultant]is authorizing the Head of the Procuring Entity or its duly authorized representative(s) to verify all the documents submitted;

6. Select one, delete the rest:

EDF No. 6

116

If a sole proprietorship: I am not related to the Head of the Procuring Entity, members of the Bids and Awards Committee (BAC), the Technical Working Group, and the BAC Secretariat, the head of the Project Management Office or the end-user unit, and the project consultants by consanguinity or affinity up to the third civil degree; If a partnership or cooperative: None of the officers and members of [Name of Offeror] is related to the Head of the Procuring Entity, members of the Bids and Awards Committee (BAC), the Technical Working Group, and the BAC Secretariat, the head of the Project Management Office or the end-user unit, and the project consultants by consanguinity or affinity up to the third civil degree; If a corporation or joint venture: None of the officers, directors, and controlling stockholders of [Name of Consultant] is related to the Head of the Procuring Entity, members of the Bids and Awards Committee (BAC), the Technical Working Group, and the BAC Secretariat, the head of the Project Management Office or the end-user unit, and the project consultants by consanguinity or affinity up to the third civil degree;

7. [Name of Consultant] complies with existing labor laws and standards; and

8. [Name of Consultant] is aware of and has undertaken the following responsibilities as

a Offeror:

a) Carefully examine all of the Negotiation Documents;

b) Acknowledge all conditions, local or otherwise, affecting the implementation of the Contract;

c) Made an estimate of the facilities available and needed for the contract to be bid, if any; and

d) Inquire or secure Supplemental/Bid Bulletin(s) issued for the [Name of the Project].

9. [Name of Offeror] did not give or pay directly or indirectly, any commission, amount, fee, or any form of consideration, pecuniary or otherwise, to any person or official, personnel or representative of the government in relation to any procurement project or activity.

IN WITNESS WHEREOF, I have hereunto set my hand this __ day of ___, 20__ at

____________, Philippines. ______________________________________ [Offeror’s Representative/Authorized Signatory]

[JURAT]

117

Technical Proposal Forms

118

TPF 1. TECHNICAL PROPOSAL SUBMISSION FORM

[Date]

[Name and address of the Procuring Entity]

Ladies/Gentlemen:

We, the undersigned, offer to provide the consulting services for [Title of Project] in accordance with your Negotiation Documents dated [insert date] and our Offer/Proposal. We are hereby submitting our Offer/Proposal, which includes this Technical Proposal, and a Financial Proposal sealed under a separate envelope.

If negotiations are held during the period of bid validity, i.e., before [insert date], we undertake to negotiate on the basis of the proposed staff. Our Proposal is binding upon us and subject to the modifications resulting from contract negotiations.

In accordance with GCC Clause 18 we acknowledge and accept the PROCURING ENTITY‟s right to inspect and audit all records relating to our Proposal irrespective of whether we enter into a contract with the Procuring Entity as a result of this Proposal or not.

We understand you are not bound to accept any Proposal received for the selection of a consultant for the Project.

We remain,

Yours sincerely,

Authorized Signature: Name and Title of Signatory:

Name of Firm: Address:

119

TPF 2. CONSULTANT‟S REFERENCES

Relevant Services Carried Out in the Last Fifteen Years That Best Illustrate Qualifications

Using the format below, provide information on each project for which your firm/entity, either individually, as a corporate entity, or as one of the major companies within an association, was legally contracted.

Project Name:

Country:

Location within Country:

Professional Staff Provided by Your Firm/Entity(profiles):

Name of Client:

No of Staff:

Address:

No of Staff-Months; Duration of Project:

Start Date (Month/Year):

Completion Date (Month/Year): Approx. Value of Services (in Current US$):

Name of Associated Consultants, if any:

No of Months of Professional Staff Provided by Associated Consultants:

Name of Senior Staff (Project Director/Coordinator, Team Leader) Involved and Functions Performed:

Narrative Description of Project:

Description of Actual Services Provided by Your Staff:

Consultant‟s Name:

120

TPF 3. COMMENTS AND SUGGESTIONS OF CONSULTANT ON THE TERMS OF REFERENCE AND ON DATA, SERVICES, AND FACILITIES TO BE PROVIDED BY THE

PROCURING ENTITY On the Terms of Reference: 1. 2. 3. 4. 5. On the data, services, and facilities to be provided by the Procuring Entity: 1. 2. 3. 4. 5.

121

TPF 4. DESCRIPTION OF THE METHODOLOGY AND WORK PLAN FOR PERFORMING THE PROJECT

122

TPF 5. TEAM COMPOSITION AND TASK PROJECTS

1. Technical/Managerial Staff Name Position Task

2. Support Staff

Name Position Task

123

TPF 6. FORMAT OF CURRICULUM VITAE (CV) FOR PROPOSED PROFESSIONAL STAFF

Proposed Position: Name of Firm: Name of Staff: Profession: Date of Birth: Years with Firm/Entity: Nationality: Membership in Professional Societies: Detailed Tasks Assigned: Key Qualifications: [Give an outline of staff member’s experience and training most pertinent to tasks on project. Describe degree of responsibility held by staff member on relevant previous projects and give dates and locations. Use about half a page.] Education: [Summarize college/university and other specialized education o f staff members, giving names of schools, dates attended, and degrees obtained. Use about one quarter of a page.] Employment Record: [Starting with present position, list in reverse order every employment held. List all positions held by staff member since graduation, giving dates, names of employing organizations, titles of positions held, and locations of projects. For experience in last ten years, also give types of activities performed and client references, where appropriate. Use about two pages.]

124

Languages: [For each language, indicate proficiency: excellent, good, fair, or poor in speaking, reading, and writing. ] Certification: I, the undersigned, certify that to the best of my knowledge and belief, these data correctly describe me, my qualifications, and my experience. Date: [Signature of staff member and authorized representative of the firm] Day/Month/Year Full name of staff member: _______________________________________________ Full name of authorized representative: ______________________________________

125

TPF 7. TIME SCHEDULE FOR PROFESSIONAL PERSONNEL

Months (in the Form of a Bar Chart) Name Position Reports Due/Activities 1 2 3 4 5 6 7 8 9 10 11 12 Number of Months

Subtotal (1)

Subtotal (2)

Subtotal (3)

Subtotal (4)

Full-time: Part-time: Reports Due: Activities Duration: Location Signature:

(Authorized representative) Full Name: Title: Address:

126

TPF 8. ACTIVITY (WORK) SCHEDULE

A. Field Investigation and Study Items

[1st, 2nd, etc. are months from the start of project.]

1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th

Activity (Work)

_________________

_________________

_________________

_________________

B. Completion and Submission of Reports

Reports Date

1. Inception Report

2. Interim Progress Report

(a) First Status Report (b) Second Status Report

3. Draft Report

4. Final Report

127

FINANCIAL PROPOSAL FORMS

128

FPF 1. FINANCIAL PROPOSAL SUBMISSION FORM

[Date]

[Name and address of the Procuring Entity]

Ladies/Gentlemen:

We, the undersigned, offer to provide the consulting services for [Title of Project] in accordance with your Negotiation Documents dated [insert date] and our Offer (Technical and Financial Proposals). Our attached Financial Proposal is for the sum of [amount in words and figures]. This amount is exclusive of the local taxes, which we have estimated at [amount(s) in words and figures]. Our Financial Proposal shall be binding upon us subject to the modifications resulting from Contract negotiations, up to expiration of the bid validity period, i.e., [Date].

In accordance with GCC Clause 51, we acknowledge and accept the Procuring

Entity‟s right to inspect and audit all records relating to our Bid irrespective of whether we enter into a contract with the Procuring Entity as a result of this Bid.

We confirm that we have read, understood and accept the contents of the Instructions to Offerors (ITO), the Negotiation Data Sheet (NDS), General Conditions of Contract (GCC), Special Conditions of Contract (SCC), Terms of Reference (TOR), the provisions relating to the eligibility of Consultant and the applicable guidelines for the procurement rules of the Funding Source, any and all Negotiation bulletins issued and other attachments and inclusions included in the Negotiation Documents sent to us.

We understand you are not bound to accept any Bid you receive. We remain,

Yours sincerely,

Authorized Signature: Name and Title of Signatory:

Name of Firm: Address:

129

FPF 2. SUMMARY OF COSTS

Costs Currency(ies)7 Amount in Philippine Peso Subtotal Local Taxes Total Amount of Financial Proposal

______________________

7In cases of contracts involving foreign consultants, indicate the exchange rate used.

130

FPF 3. BREAKDOWN OF PRICE PER ACTIVITY

Activity No.:____________________

Activity No.:_____________________

Description:_____________________

Price Component Currency(ies)8 Amount in Philippine Peso

Remuneration Reimbursables Miscellaneous Expenses Subtotal

____________________________

8In cases of contracts involving foreign consultants, indicate the exchange rate used.

131

FPF 4. BREAKDOWN OF REMUNERATION PER ACTIVITY

Activity No._____________________________________ Name:______________________________

Names

Position

Input9

Remuneration

Currency(ies) Rate

Amount Regular staff Local staff Consultants Grand Total

___________________

9 Staff months, days, or hours as appropriate.

132

FPF 5.REIMBURSABLES PER ACTIVITY

Activity No:_________________________________ Name:_____________________

No. Description Unit Quantity Unit Price In Total Amount In 1. 2. 3. 4. 5.

International flights _____________________________ Miscellaneous travel expenses Subsistence allowance Local transportation costs10 Office rent/accommodation/ clerical assistance

Trip Trip Day

Grand Total

________________

10 Local transportation costs are not included if local transportation is being made available by the Entity. Similarly, in the project site, office rent/accommodations/clerical assistance costs are not to be included if being made available by the Entity.

133

FPF 6. MISCELLANEOUS EXPENSES

Activity No.______________________ Activity Name: ________________________

No. 1. 2. 3. 4.

Description Communication costs between ______________________and _________________________ (telephone, telegram, telex) Drafting, reproduction of reports Equipment: vehicles, computers, etc. Software Grand Total

Unit Quantity Unit Price Total Amount _______

134

FORM OF CONTRACT AGREEMENT

THIS AGREEMENT, made this [insert date] day of [insert month], [insert year] between [name and address of PROCURING ENTITY](hereinafter called the“Entity”) and [name and address of Consultant] (hereinafter called the “Consultant”).

WHEREAS, as a result of the two failed biddings for the Project, a Negotiated Procurement of the Independent Consultant for the Southwest Integrated Transport System PPP Project was undertaken pursuant to Section 53.1 of the Revised Implementing Rules and Regulations of Republic Act No. 9184;

WHEREAS, the Entity is desirous that the Consultant execute [name and identification number of contract] (hereinafter called “the Works”) and the Entity has accepted the bid for [insert the amount in specified currency in numbers and words] by the Consultant for the execution and completion of such Consulting Services and the remedying of any defects therein.

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:

1. In this Agreement, words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract hereinafter referred to.

2. The following documents shall be attached, deemed to form, and be read and construed as part of this Agreement, to wit:

(a) General and Special Conditions of Contract;

(b) Terms of Reference

(c) Instructions to Offerors;

(d) Negotiation Data Sheet;

(e) Addenda and/or Supplemental/Negotiation Bulletins, if any;

(f) Proposal/Negotiation forms, including all the documents/statements contained in the Offeror‟s proposal envelopes, as annexes;

(g) Eligibility requirements, documents and/or statements;

(h) Performance Security;

(i) Credit line issued by a licensed bank, if any;

(j) Notice of Award of Contract and the Offeror‟s conforme thereto;

(k) Other contract documents that may be required by existing laws and/or the Entity.

FPF 7.

135

3. In consideration of the payments to be made by the Entity to the Consultant as hereinafter mentioned, the Consultant hereby covenants with the Entity to execute and complete the Consulting Services and remedy any defects therein in conformity with the provisions of this Consultant in all respects.

4. The Entity hereby covenants to pay the Consultant in consideration of the execution and completion of the Consulting Services, the Contract Price or such other sum as may become payable under the provisions of this Contract at the times and in the manner prescribed by this Contract.

IN WITNESS whereof the parties thereto have caused this Agreement to be executed the day and year first before written.

Binding Signature of PROCURING ENTITY

________________________________________________

Binding Signature of Contractor

_____________________________________________

[Addendum showing the corrections, if any, made during the bid evaluation should be attached with this agreement]

136

I. BREAKDOWN OF AGREED FIXED RATES11

[Currencies:_________12]

Consultants 1 2 3 4 5 6 7 8

Name Position Basic Rate13 Social Charge

(__% of 1)

Overhead (__% of 1)

Subtotal Fee (__% of 4)

Away from Headquarters Allowance (__ % of 1)

Total Agreed

Fixed Rate

Agreed Fixed Rate (__ % of 1)

Philippines

Home Office

Signature of Consultant:________________________ Date:___________________

Authorized Representative:_____________________ Name:___________________

Title:______________________

11 This model form is given for negotiation purposes only. It is not part of the proposals (technical or financial). 12 If different currencies, a different table for each currency should be used. 13 Per month, day, or hour as appropriate.

158

SCHEDULE 16: INDEPENDENT CONSULTANT – FORM OF

APPOINTMENT

DATED [__]

(1) [GRANTOR]

(2) [CONCESSIONAIRE]

(3) [INDEPENDENT CONSULTANT]

INDEPENDENT CONSULTANT

FORM OF APPOINTMENT

159

Table of Contents

1. DEFINITIONS AND INTERPRETATION

2. APPOINTMENT

3. INDEPENDENT CONSULTANT'S OBLIGATIONS

4. VARIED IC SERVICES

5. REMUNERATION

6. STAFF

7. COMMENCEMENT AND DURATION

8. LIMITATIONS ON AUTHORITY

9. TERMINATION

10. CONFIDENTIAL INFORMATION

11. PROFESSIONAL INDEMNITY INSURANCE

12. NOTICE

13. ASSIGNMENT

14. CUMULATIVE RIGHTS AND ENFORCEMENT

15. PROHIBITED MATERIALS

16. STEP-IN PROVISIONS

17. IC PROJECT DOCUMENTS

18. WAIVER

19. SEVERABILITY

20. COUNTERPARTS

21. VARIATION

22. DISPUTES RESOLUTION PROCEDURE

23. GOVERNING LAW AND JURISDICTION

24. ENTIRE AGREEMENT

25. LIMITATION OF LIABILITY

26. INDEPENDENT CONTRACTOR, NO PARTNERSHIP

SCHEDULE 1 – IC SERVICES

SCHEDULE 2 – IC FEE

160

THIS AGREEMENT is made on [__]

AMONG -

(1) GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, acting through its DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (hereinafter referred to as the "DOTC") with office address at the [__], Manila, represented herein by its Secretary, [__]; (hereinafter referred to as the "Grantor");

(2) [__] a corporation duly organized and existing under and by virtue of the laws of the Republic of the Philippines with office address at [__], represented herein by its President/Chief Executive Officer [__] (hereinafter referred to as the "Concessionaire"); and

(3) [__] (the "Independent Consultant"),

each a "Party" and together the "Parties" to this Agreement.

WHEREAS:-

(A) The Concessionaire and the Grantor have entered into an agreement, pursuant to the approval by the Investment Coordination Committee and the Board of the National Economic and Development Authority of the Republic of the Philippines for the development and implementation of a project in accordance with the BOT Law for the: (i) engineering, procurement, construction and financing of the ITS Terminal; and (ii) operation and maintenance of the ITS Terminal (the "Project"), under the terms of which the Concessionaire and the Grantor have agreed to appoint an Independent Consultant (the "Concession Agreement").

(B) The Concessionaire has entered into or will enter into Works Subcontracts with [__] (company details) (the "Works Subcontractor"), [and has entered into or will enter into the Technical Services Agreement with [__] (company details) (the “O&M Sponsor”) and the O&M Agreement with [__] (company details) (the "Facility Operator")].†

(C) The Independent Consultant is an independent adviser who will provide services to the Concessionaire and the Grantor.

(D) The Concessionaire and the Grantor have agreed jointly to engage the Independent Consultant upon the terms of this Agreement to carry out the duties and obligations ascribed to the Independent Consultant in the Concession Agreement.

IT IS AGREED:-

† Note: This will be amended to refer to TSA only if no Facility Operator used by the Concessionaire (with the necessary consequential amendments throughout this Schedule [__]).

161

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement:-

"Documents" means the Concession Agreement, the Works Subcontract, the Finance Documents, [the O&M Agreement, the Technical Services Agreement], , and any attachment, annexure or schedule thereto or document referred to therein;

"IC Project Documents" means (to the extent such documents are relevant to the IC Services) all technical information (whether or not stored in computer system and including schedules, details, checking matrices, programmes, budgets, reports and minutes of meetings), drawings, models, bills of quantities, specifications, schedules, details, plans, programmes, budgets, reports, calculations or other documents whatsoever provided or to be provided by the Independent Consultant in connection with the Project; and

"Relevant Parties" means the Concessionaire and the Grantor.

1.2 Unless the context otherwise requires or this Agreement specifically provides

otherwise, words and expressions defined in the Concession Agreement have the

same meanings in this Agreement as in the Concession Agreement provided that

no change to the Concession Agreement shall have the effect of increasing,

extending or varying the Independent Consultant's obligations under this

Agreement unless otherwise agreed by the Independent Consultant or

implemented as a Varied IC Service in accordance with Section 4.

1.3 The headings in this Agreement are for convenience of reference only.

1.4 Unless the context otherwise requires, all references to Sections and Schedules

are references to Sections of and Schedules to this Agreement.

1.5 Words importing the singular meaning include the plural meaning and vice

versa.

1.6 Words denoting the masculine gender include the feminine and neuter genders

and words denoting natural persons include corporations and firms and all such

words shall be construed interchangeably in this manner.

1.7 Reference in this Agreement to any Relevant Rules and Procedures includes and

refers to any amendment or re-enactment thereof from time to time and for the

time being in force.

1.8 If any Party to this Agreement is a partnership then the provisions of this

Agreement shall bind each and every present and future partner of such

partnership jointly and severally.

162

1.9 References to the Concessionaire shall be deemed to include successors in title

and assignees of the Concessionaire.

2. APPOINTMENT

2.1 The Concessionaire and the Grantor jointly appoint the Independent Consultant

to perform the obligations and tasks which are ascribed to the Independent

Consultant under the Concession Agreement and which are set out in Schedule 1

(the "IC Services"), upon the terms and conditions set out below (the

"Appointment").

2.2 Subject to Sections 3.6 and 3.7, all approvals, instructions, consents and

directions to be given, and all requests, decisions, notices and arrangements to

be made by the Relevant Parties under this Agreement shall not be unreasonably

withheld or delayed and shall be given or made jointly in writing signed by the

nominated representative of the Concessionaire on behalf of the Concessionaire

and the nominated representative of the Grantor on behalf of the Grantor (in

both cases, the nominated representatives shall be appointed in accordance with

Section 20 (Project Management) of the Concession Agreement).

3. INDEPENDENT CONSULTANT'S OBLIGATIONS

3.1 The Independent Consultant shall provide the IC Services set out in Schedule 1

and any Varied IC Services (pursuant to Section 4).

3.2 The Independent Consultant undertakes and warrants to the Relevant Parties

that it has carried out and performed and shall carry out and perform the IC

Services and Varied IC Services and its duties under this Agreement:-

3.2.1 exercising all the reasonable skill, care and attention to be expected of a

competent independent consultant experienced in carrying out services

for works of a similar nature, value, complexity and time scale to those

parts of the Project to which the provision of the IC Services relates;

3.2.2 in accordance with good faith;

3.2.3 in accordance with all Relevant Rules and Procedures; and

3.2.4 in accordance with Prudent Industry Practice.

3.3 In addition (but subject to Section 3.2) the Independent Consultant shall:-

3.3.1 promptly and efficiently perform the IC Services and Varied IC Services as

soon as reasonably practicable but consistent with the standards

specified in Sections 3.2 and 3.5 and so as to achieve the Milestones set

out in Section 4.2 (Milestones) of the Concession Agreement;

3.3.2 perform the IC Services and Varied IC Services in such manner and at such

time so that no act or omission in breach of this Agreement or default by

the Independent Consultant shall cause any of the Relevant Parties to be

163

in material breach of any of the Documents or to otherwise give rise to a

claim against or reduce any entitlement of those parties;

3.3.3 keep the Relevant Parties fully and properly informed on all aspects of the

IC Services and Varied IC Services and provide the Relevant Parties with

such information and comments as they may from time to time require

from the Independent Consultant with regard to the IC Services and

Varied IC Services promptly and in good time so as not to delay or disrupt

the progress of the Project; and

3.3.4 comply with all reasonable instructions given to it by the Relevant Parties

except and to the extent that the Independent Consultant reasonably

considers (subject to Section 4) that any such instructions vary or might

vary the IC Services or Varied IC Services or its authority or

responsibilities under this Agreement or prejudice or might prejudice the

exercise by the Independent Consultant of its professional judgment. The

Independent Consultant shall promptly confirm in writing to the Relevant

Parties whether or not it shall comply with any such instruction setting

out the grounds upon which the decision is made. All instructions to the

Independent Consultant shall be given in writing jointly by the Relevant

Parties.

3.4 Except insofar as may be expressly provided in Schedule 1 to this Agreement or

save where instructed to do so pursuant to a Varied IC Service, the Independent

Consultant shall not, without the prior written approval of a Relevant Party, have

authority to act on behalf of that Relevant Party in relation to any matter in

connection with the Project or otherwise and shall not hold itself out as having

such authority to act on behalf of any of the Relevant Parties. The Independent

Consultant shall not express an opinion on and shall not interfere with or give

any advice or opinion or make any representation in relation to any matters

which are beyond its role and responsibilities under this Agreement.

3.5 The Independent Consultant hereby undertakes to perform all the duties to be

performed by the Independent Consultant under this Agreement in good faith,

independently, fairly and impartially as between the Relevant Parties and is to

have due, equal and proper regard to any representations made by or on behalf

of the Relevant Parties, the Works Subcontractor, the Facility Operator or any of

them, but not so as to exclude the exercise of independent judgement such that

the Independent Consultant shall not be bound to comply with any

representations made by them or by any one of them in connection with any

matter on which the Independent Consultant is required to exercise its

professional judgement.

3.6 Where, in the performance of the IC Services or Varied IC Services, the

Independent Consultant seeks or is obliged to seek the approval or agreement of

the Relevant Parties or any of them to any matter or issue, the giving or

164

confirming of the same shall not in any way derogate from the Independent

Consultant's obligations under this Agreement nor diminish any liability on its

part for breach of such obligations and no inquiry, inspection, comment, consent,

decision or instruction at any time made or given by or on behalf of the Relevant

Parties shall operate to exclude or limit the obligations of the Independent

Consultant to carry out the IC Services or Varied IC Services in accordance with

the obligations contained in this Agreement.

3.7 The Independent Consultant acknowledges that save as provided for in Section

25 nothing contained in this Agreement shall prejudice or affect its liability in

tort to any of the Parties.

3.8 The Concessionaire shall provide the Independent Consultant with copies of the

Documents promptly following the date of this Agreement. To the extent that the

Concessionaire shall have provided the Independent Consultant with true and

accurate copies of the Documents the Independent Consultant shall be deemed

to have full knowledge of the provisions of the Documents as relate to the IC

Services and shall be deemed to be aware of and to have taken full account of all

the undertakings and warranties both expressed and implied, on the part of the

Relevant Parties which are set out in the Documents (or parts thereof, as

applicable).

3.9 Without prejudice to the Independent Consultant's obligations under this

Agreement, the Independent Consultant agrees and acknowledges that:-

3.9.1 it shall be deemed to have obtained for itself all necessary information as

to the risks, contingencies and any other circumstances which might

reasonably influence the performance of its obligations under this

Agreement; and

3.9.2 it shall be responsible for, and shall make no claim against the Relevant

Parties in respect of any misunderstanding affecting the basis of the

Independent Consultant's proposals (in respect of the IC Services and

Varied IC Services).

4. Varied IC Services

4.1 The Independent Consultant shall carry out and perform any additional and/or

varied services required for the implementation of the Project reasonably

required by the Relevant Parties which are not included in, or which are omitted

from, the IC Services (the "Varied IC Services"), subject to prior agreement by

the Grantor and the Concessionaire to the costs thereof which shall be calculated

by reference to the hourly rates set out in Schedule 2.

4.2 If the Independent Consultant shall at any time be required to perform Varied IC

Services, it shall give to the Grantor and the Concessionaire a written estimate of

the cost thereof (taking into account any reduction in work or other expense

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which might also occur as a result of the circumstances giving rise to the Varied

IC Services).

4.3 Where a change to the Project occurs pursuant to the terms of the Concession

Agreement which may materially impact on the IC Services or otherwise on the

Independent Consultant, the Concessionaire shall promptly notify the

Independent Consultant of such change. The Independent Consultant within

[twenty (20)] days of receiving such notification, notify the Relevant Parties of

the impact of such change, if any, on the IC Services, including whether such

change gives rise to any Varied IC Services and the provisions of this Section 4

shall apply accordingly.

5. REMUNERATION

5.1 The Fee (as defined in Schedule 2 (IC Fee)) for the IC Services provided by the

Independent Consultant in relation to the Concession Agreement shall be shared

equally by (1) the Grantor; and (2) the Concessionaire (for the avoidance of

doubt, being fifty percent (50%) by the Concessionaire and fifty percent (50%)

by the Grantor). The Grantor shall be responsible for remitting the full amount of

the Independent Consultant’s fees and expenses to the Independent Consultant.

The Concessionaire shall, within seven (7) days from receipt of written notice

from the Grantor, reimburse to the Grantor fifty percent (50%) of the full amount

paid by the Grantor to the Independent Consultant. The Fee is exclusive of any

taxes which may be imposed by Philippine taxing authorities and is inclusive of

disbursements. The Fee is exclusive of any taxes which may be imposed by

Philippine taxing authorities and is inclusive of disbursements.

The Independent Consultant shall issue invoices to each of the Concessionaire

and the Grantor (in respect of their respective fifty percent (50%) shares) in

accordance with the provisions of Schedule 2 Part 1. The date on such invoice

shall constitute the due date for the purposes of the sum claimed. The final date

for payment of the full amount by the Grantor shall be thirty (30) days after the

date of receipt of the relevant invoice. If Varied IC Services are agreed and

provided then they shall likewise be paid for equally by (1) the Grantor; and (2)

the Concessionaire (for the avoidance of doubt, being fifty percent (50%) by the

Concessionaire and fifty percent (50%) by the Grantor) in accordance with the

terms as herein set forth or as otherwise agreed.

5.2 Not later than seven (7) days after each due date ascertained in accordance with

Section 5.1, the Grantor may give written notice to the Independent Consultant

stating the amounts which the Grantor proposes to pay and the basis on which

the amount of work completed in accordance with Section 3 hereof.

5.3 Where the Grantor intends to withhold payment of any sum stated in an invoice

for reasons of non-performance of the Independent Consultant’s Obligations

under Section 3, the Grantor shall give written notice thereof to the Independent

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Consultant not later than seven (7) days before the final date for payment

applicable thereto pursuant to Section 5.1. The notice shall state the amount

proposed to be withheld and the ground or grounds for withholding the relevant

amount and, if there is more than one (1) ground, the notice shall identify the

amount attributable to each ground.

5.4 Save in respect of any sums validly withheld pursuant to Section 5.3, if the

Grantor fails to pay the Independent Consultant any sum payable to it under this

Agreement by the final date for payment thereof, the Grantor shall, subject to

Section 17.8 (Grantor Payment) of the Concession Agreement, pay the

Independent Consultant simple interest on the sum due from the final date for

payment until the actual date of payment thereof at the Late Payment Rate.

5.5 If the Grantor fails to pay the amount properly due pursuant to the foregoing

provisions of this Section 5 and no notice to withhold payment has been given

pursuant to Section 5, the Independent Consultant may suspend performance of

any or all of the IC Services. This right is subject to the Independent Consultant

first giving the Grantor not less than fourteen (14) days notice in writing of such

intention stating the grounds for suspension. The right to suspend performance

as aforesaid shall cease when the Grantor pays the amount properly due.

5.6 Neither the Grantor nor the Concessionaire shall issue instructions or do

anything which does or is reasonably likely materially to increase the payments

payable to the Independent Consultant without the prior approval of the other

(such approval not to be unreasonably withheld or delayed).

5.7 As soon as the Independent Consultant becomes aware of the same and before

acting on the same, the Independent Consultant shall inform the Grantor and the

Concessionaire of any instructions which either party has given it which shall or

could reasonably be expected to increase the payments payable to the

Independent Consultant under the terms of this Agreement. The Independent

Consultant shall if requested by either the Concessionaire or the Grantor provide

both the Grantor and the Concessionaire with as detailed an estimate as is

reasonably practicable of the increase to the payments payable to it if it carries

out such instructions. The estimate of increased payments shall be based upon

the rates contained in Schedule 2 (IC Fee) to this Agreement.

5.8 The obligations of the Concessionaire and the Grantor to pay the Independent

Consultant for performing the IC Services and any Varied IC Services shall be

several and not joint.

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6. STAFF

6.1 Subject to Section 6.2, the Independent Consultant shall use [insert name] and

[insert name] in connection with the performance of the IC Services and Varied IC

Services and such persons' services shall be available when necessary for so long

as may be necessary to ensure the proper performance by the Independent

Consultant of the IC Services and Varied IC Services. Such persons shall have full

authority to act on behalf of the Independent Consultant for all purposes In

connection with this Agreement.

6.2 The Independent Consultant may by written notice to the Grantor and

Concessionaire replace the staff identified in Section 6.1 taking account the need

for liaison, continuity, level of qualification and availability of personnel in

respect of the Project. Such replacement shall be subject to approval in writing

by the Grantor and Concessionaire (not to be unreasonably withheld or delayed).

7. COMMENCEMENT AND DURATION

7.1 The IC Services shall commence on the date of this Agreement.

7.2 The Independent Consultant agrees that this Agreement governs all IC Services

and Varied IC Services provided by the Independent Consultant in relation to the

Project whether before or after the date hereof.

7.3 This Agreement shall terminate on the earlier of the completion of the

Independent Consultant's performance of its obligations under this Agreement

and the termination of the Independent Consultant's appointment under this

Agreement pursuant to Section 9 of this Agreement.

8. LIMITATIONS ON AUTHORITY

The Independent Consultant shall not -

8.1 make or purport to make any alteration or addition to or omission from the

design of the Project (including, without limitation, the setting of performance

standards); or

8.2 issue any instruction or direction to any contractor or professional consultant

employed or engaged in connection with the Project; or

8.3 consent or agree to any waiver or release of any obligation of:-

8.3.1 the Concessionaire under the Concession Agreement;

8.3.2 the Construction Subcontractor under the Works Subcontracts;

8.3.3 [the Facility Operator under the O&M Agreement and Technical Services

Agreement];

8.3.4 the O&M Sponsor under the Technical Services Agreement; or

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8.3.5 any contractor or subcontractor of any tier or professional consultant

employed or engaged in connection with the Project; or

8.4 express an opinion and shall not interfere with or give any advice, opinion or

make any representation, in each case, in relation to any matters which are

beyond its role and responsibilities under this Agreement.

9. TERMINATION

9.1 The Relevant Parties may by joint notice in writing immediately terminate the

Independent Consultant's appointment under this Agreement if:

9.1.1 the Independent Consultant is in breach of any of the terms of this

Agreement which, in the case of a breach capable of remedy, shall not

have been remedied by the Independent Consultant within [twenty-one

(21)] days of receipt by the Independent Consultant of a notice specifying

the breach and requiring its remedy;

9.1.2 the Independent Consultant is incompetent, guilty of gross misconduct

and/or any material negligence or delay in the provision of the IC Services

or Varied IC Services;

9.1.3 the Independent Consultant fails to comply with Section 3.3.1;

9.1.4 the Independent Consultant fails or refuses after written warning to

provide the IC Services, Varied IC Services and/or its other duties under

this Agreement; or

9.1.5 in relation to the Independent Consultant:-

a) a court makes an order that it be wound up or a resolution for a

voluntary winding-up of it is passed;

b) any receiver or manager in respect of it is appointed or possession

is taken by or on behalf of any creditor of any property that is the

subject of a charge;

c) any voluntary arrangement is made for a composition of debts or a

scheme of arrangement is approved under the Relevant Rules and

Procedures;

d) an administration order is made;

e) it ceases to carry on business;

f) it is unable to pay its debts within the meaning of the Relevant

Rules and Procedures;

g) it is dissolved or ceases to exist;

h) it has a petition advertised for winding up or an administration

order presented to any court and has not been withdrawn within

fourteen (14) days; and

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i) an event analogous to any of the events set out in a) to h) above

occurs in relation to the Independent Consultant in any

jurisdiction in which it is incorporated or resident.

9.2 Without prejudice to Section 9.1, the Relevant Parties may terminate this

Agreement at any time upon seven (7) days notice in writing to the Independent

Consultant.

9.3 If the Concession Agreement is rescinded, terminated or repudiated for any

reason, the Independent Consultant's appointment under this Agreement shall

be terminated with immediate effect.

9.4 Following any termination of this Agreement but subject to Section 9.5 and

subject to any withholding, set-off or deductions which the Concessionaire

and/or the Grantor may be entitled to make as a result of any breach of this

Agreement by the Independent Consultant, the Independent Consultant shall be

entitled to be paid all payments due pursuant to Section 5 in respect of the IC

Services and Varied IC Services, if applicable, carried out in accordance with this

Agreement prior to the date of termination. The Concessionaire and the Grantor

shall pay all such payments and costs payable pursuant to this Section in equal

proportions (for the avoidance of doubt, being fifty percent (50)% to be paid by

the Concessionaire and fifty percent (50)% to be paid by the Grantor). The

Grantor shall not have any liability for payment of any Payments or costs payable

to the Independent Consultant pursuant to this Section other than the fifty

percent (50%) proportion of the payments and costs referred to in this Section.

9.5 If the Independent Consultant's appointment under this Agreement is

terminated for any act, omission, negligence or default of the Independent

Consultant then the Independent Consultant shall reimburse to the

Concessionaire and/or the Grantor any additional costs incurred by the

Concessionaire and/or the Grantor (as the case may be) as a result of such

termination including the cost of employing and remunerating a replacement to

undertake the IC Services and any Varied IC Services.

9.6 The Relevant Parties may, upon joint instruction, bring to an end the

performance of any divisible part of the IC Services or the Varied IC Services in

which event the payments and costs due to the Independent Consultant will be

adjusted on a pro rata basis accordingly by the Relevant Parties and the

Independent Consultant shall be notified of the adjusted costs and Payments by

written notice from the Relevant Parties.

9.7 Termination of this Agreement shall be without prejudice to any accrued rights

and obligations under this Agreement as at the date of termination (including the

right of any of the Relevant Parties to recover damages from the Independent

Consultant).

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9.8 If this Agreement is terminated in accordance with Section 9.1, the

Concessionaire is obliged to appoint at its own expense as soon as reasonably

practicable and subject to obtaining the prior consent in writing of the Grantor,

such consent not to be unreasonably withheld or delayed, an alternative

Independent Consultant to exercise the functions of the Independent Consultant

under the Concession Agreement. If the termination of this Agreement is the

result of the Independent Consultant's default under this Agreement, the

Independent Consultant shall pay to the Concessionaire any reasonable

incremental loss, damage or extra costs suffered by the Concessionaire resulting

from such termination including any additional costs associated with the

appointment of an alternative Independent Consultant.

9.9 Termination of this Agreement shall not affect the continuing rights and

obligations of the Independent Consultant under Sections 10 (Confidential

Information), 11 (Professional Indemnity Insurance), 22 (Disputes Resolution

Procedure), 23 (Governing Law and Jurisdiction), and this Section 9 or under any

other Section insofar as and for as long as may be necessary to give effect to their

respective rights and obligations hereunder.

Independent Consultant's Right to Terminate

9.10 The Independent Consultant shall only be entitled to terminate its appointment

under this Agreement in accordance with Section 9.11.

9.11 If the Concessionaire and/or the Grantor fail to make payment of any

undisputed sum due to the Independent Consultant under this Agreement within

thirty (30) days of the due date for payment the Independent Consultant shall

have the right to serve an initial written notice on the Concessionaire and the

Grantor identifying the default in question and, if such default continues for a

further period of twenty (20) days following the service of such initial written

notice, the Independent Consultant shall be entitled by service of written notice

on the Concessionaire and the Grantor to terminate its appointment under this

Agreement.

9.12 The Independent Consultant agrees that in discharging its obligations under this

Agreement it shall use all reasonable endeavours to ensure that no conflict of

interest between the interests of the Relevant Parties shall arise.

9.13 Upon any termination of the Independent Consultant's engagement under this

Section 9 the Independent Consultant shall be relieved of its obligation to

continue with the performance of the IC Services and any Varied IC Services and

shall take immediate steps to bring to an end the IC Services and any Varied IC

Services in an orderly manner but with all reasonable speed and economy and

shall as soon as reasonably practicable but no later than fifteen (15) days

following termination, deliver to the Relevant Parties copies of all reports,

minutes of meeting and other documents prepared or in the course of

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preparation by the Independent Consultant in connection with the Project

excluding internal memoranda, working papers and templates and in the event

that a replacement firm has been appointed to complete the performance of the

IC Services and Varied IC Services, shall co-operate fully with replacement to the

extent it is reasonable to do so.

9.14 Upon any termination of the Independent Consultant's engagement howsoever

arising, the Relevant Parties shall not be liable, save as is exclusively set out in

Section 9.4, to the Independent Consultant for any loss of profit, loss of contracts

or other costs, losses and/or expenses whatsoever arising out of or in connection

with such termination.

10. CONFIDENTIAL INFORMATION

10.1 The Independent Consultant shall treat as secret and confidential and shall not at

any time for any reason disclose or permit to be disclosed to any person or

otherwise make use of or permit to be made use of any unpublished information

relating to each of the Relevant Parties' (or their Subcontractors') technology or

other know-how, commercial affairs and business plans or any other type of

intellectual property or finances (including any information relating to the

Concession Agreement and/or the Finance Documents) or any such information

relating to a subsidiary, supplier, customer or client of the Relevant Parties.

10.2 Within fourteen (14) days of termination of this Agreement for whatever reason

(or its expiry) the Independent Consultant shall deliver up to the Relevant Party

making such request -

10.2.1 all documents (including copies of the Documents), computer discs, tapes

and any other materials, information and reports delivered to the

Independent Consultant by that Relevant Party in connection with the

Project; and

10.2.2 subject to payment of all amounts due and payable in respect of the Fee,

all IC Project Documents and reports prepared by the Independent

Consultant under this Agreement, provided that the Independent

Consultant shall be entitled to retain one (1) copy of the documents for

use in any legal proceedings and for its own proper professional records

but not for any other purpose. The Independent Consultant continues to

owe a duty of confidentiality as set out in Section 10.1 in respect of any

material or information retained by it in whatever form.

10.3 The Independent Consultant shall comply with any and all legal requirements in

the Relevant Rules and Procedures in respect of any data and/or information

provided to it in connection with the IC Services or Varied IC Services.

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11. PROFESSIONAL INDEMNITY INSURANCE

11.1 Without prejudice to its obligations under this Agreement, or otherwise at law,

the Independent Consultant confirms that it has and shall maintain at all times

professional indemnity insurance covering (inter alia) all liability hereunder

upon customary and usual terms and conditions prevailing for the time being in

the insurance market, and with reputable insurers lawfully carrying on such

insurance business in the Republic of the Philippines with a limit of indemnity of

not less than twenty million Philippine Pesos (PhP20,000,000) for each and

every claim or series of claims consequent upon or attributable to the same

cause or original source (but in the aggregate in respect of pollution and/or

contamination claims) in respect of any neglect, error or omission on the

Independent Consultant's part in the performance of its obligations under this

Agreement for the period commencing on the date of this Agreement and

expiring [twelve (12)] years after the date of completion of the IC Services (and

Varied IC Services, if applicable) or termination of this Agreement provided that

such insurance is generally available in the market to members of the

Independent Consultant's profession at commercially reasonable rates and terms

within the Philippine insurance market ("PI Cover"). The said terms and

conditions shall not include any term or condition to the effect that the

Independent Consultant must discharge any liability before being entitled to

recover from the insurers, or any other term or condition which might adversely

affect the rights of any person to recover from the insurers pursuant to any

relevant Legal Requirement, or any amendment or re-enactment thereof. The

Independent Consultant shall forthwith notify the Relevant Parities in the event

of any claim arising under such insurance in respect of any professional liability

which it may incur under this Agreement and shall not, without the prior

approval in writing of the Relevant Parties, settle or compromise with the

insurers any claim which the Independent Consultant may have against the

insurers and which relates to a claim by the Relevant Parties against the

Independent Consultant, or by any act or omission lose or prejudice the

Independent Consultant's right to make or proceed with such a claim against the

insurers.

11.2 Any increased or additional premiums required by insurers by reason of the

Independent Consultant's own claims record or other acts omissions matters or

things peculiar to the Independent Consultant shall be deemed to be within

commercially reasonable rates, and shall not relieve the Independent Consultant

of its obligations under Section 11.1.

11.3 The Independent Consultant shall maintain PI Cover with reputable insurers

carrying on business in the Philippines.

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11.4 The Independent Consultant shall, prior to commencing the provision of the IC

Services and no more than thirty (30) days after each renewal date and as and

when reasonably required to do so by the Relevant Parties, produce for

inspection by the Relevant Parties documentary evidence that the PI Cover is

being properly maintained.

11.5 The Independent Consultant shall forthwith notify the Relevant Parties if the PI

Cover ceases to be available upon reasonable terms and at commercially

reasonable premium rates in order that the Independent Consultant and

Concessionaire and Grantor can discuss means of best protecting the respective

position of the Concessionaire and Grantor and the Independent Consultant in

respect of the Project in the absence of such insurance. In the event of a failure to

agree, the Relevant Parties shall have the option to effect insurance and the cost

shall be borne equally by the Relevant Parties and the Independent Consultant.

11.6 The obligations set out in this Section 11 shall continue notwithstanding

termination of this Agreement for any reason whatsoever, including (without

limitation) breach by the Relevant Parties.

11.7 The Independent Consultant shall fully co-operate with any measures reasonably

required by the Relevant Parties, including (without limitation) completing any

proposals for insurance and associated documents, maintaining such insurance

at rates above commercially reasonable rates if the Relevant Parties undertake in

writing to reimburse the Independent Consultant in respect of the net cost of

such insurance to the Independent Consultant above commercially reasonable

rates.

12. NOTICE

12.1 All notices or other communications required in connection with this Agreement

shall be in writing and shall be served by sending the same by first class post, or

by hand, in the case of the Independent Consultant to -

[insert address]

Marked for the attention of [insert name] and in the case of the Relevant Parties to the addresses set out in the Concession Agreement (as advised to the Independent Consultant) or to such other address as a party to this Agreement may notify to the other parties to this Agreement in writing.

12.2 Notices shall be effective:-

12.2.1 by registered post, upon the earlier of actual receipt and [five (5)]

Business Days after posting; and

12.2.2 by hand, upon delivery.

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13. ASSIGNMENT

13.1 The Independent Consultant shall not assign or transfer any of its rights or

obligations under this Agreement or subcontract the whole or any part of the IC

Services or Varied IC Services.

13.2 Neither the Concessionaire nor the Grantor shall be entitled to assign or transfer

any of their respective rights or obligations under this Agreement, save that the

Parties hereby consent to:-

13.2.1 any such assignment or transfer by any of the Relevant Parties which is

contemporaneous to the assignment or transfer of the Concession

Agreement by any of them and which is made to the same assignee or

transferee;

13.2.2 any such assignment of the rights of the Concessionaire under this

Agreement by way of a Permitted Security Interest to any Finance Parties

providing financing for the Project; or

13.2.3 in the event that the Concession Agreement is novated to a third party,

the term “Concession Agreement,” shall include any replacement

agreement arising from such novation.

14. CUMULATIVE RIGHTS AND ENFORCEMENT

14.1 Any rights and remedies provided for in this Agreement whether in favor of the

Concessionaire, the Grantor or the Independent Consultant are cumulative and in

addition to any further rights or remedies which may otherwise be available to

the parties.

14.2 The duties and obligations of the Independent Consultant arising under or in

connection with this Agreement are owed to the Relevant Parties both jointly

and severally and the Relevant Parties may accordingly enforce the provisions

hereof and pursue their respective rights hereunder in their own name, whether

separately or with each other.

14.3 The Relevant Parties covenant with each other that they shall not waive any

rights, remedies or entitlements or take any other action under this Agreement

which would or might reasonably be expected to adversely affect the rights,

remedies or entitlements of the other without the other's prior written consent,

such consent not to be unreasonably withheld or delayed.

15. Prohibited Materials

15.1 For the purposes of Section 15.2 "Prohibited Materials" means any products or

materials which are generally known within the Independent Consultant's

profession at the time of specification to be deleterious in the particular

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circumstances in which they are used or those identified as potentially

hazardous in or not in conformity with:

15.1.1 [insert reference to relevant reports, standards, codes of practice,

publications, specifications, etc.];

15.2 If, in the performance of its duties under this Agreement, the Independent

Consultant becomes aware that it, or any other person, has specified or used, or

authorized or approved the specification or use by others of any Prohibited

Materials the Independent Consultant will immediately give the Grantor written

notice of the same. This Section 15.2 does not create any additional duty for the

Independent Consultant to inspect or check the work of others which is not

required by this Agreement.

16. STEP-IN PROVISIONS

16.1 The Independent Consultant shall not exercise nor seek to exercise any right to

terminate its engagement under this Agreement pursuant to Section 9 as a

consequence of any breach of this Agreement by either the Grantor or the

Concessionaire (the relevant defaulting party being the “Defaulting Party”)

without giving to the other party (or parties) to this Agreement (the “Non-

Defaulting Party”) not less than thirty (30) days' written notice of the

Independent Consultant’s intention to do so and specifying the grounds for the

proposed termination (the “Step-In Notice”).

16.2 Any period stipulated in this Agreement for the exercise by the Independent

Consultant of a right of termination shall be extended as necessary to take

account of the period of notice required under Section 16.1.

16.3 The Independent Consultant’s right to terminate its engagement under this

Agreement or to discontinue the performance of the IC Services or Varied IC

Services shall cease if, within the period of thirty (30) Business Days referred to

in Section16.1, a Non-Defaulting Party shall give notice to the Independent

Consultant:

16.3.1 requiring it to continue the performance of the IC Services or Varied IC

Services;

16.3.2 acknowledging that it is assuming all of the obligations of the Defaulting

Party under this Agreement; and

16.3.3 undertaking to the Independent Consultant to discharge all payments

which may subsequently become due to the Independent Consultant from

the Defaulting Party under this Agreement and paying to the Independent

Consultant any sums which have already become due to it from the

Defaulting Party but which remain unpaid.

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16.4 Upon compliance by a Non-Defaulting Party with the provisions of Section 16.3,

this Agreement shall continue in full force and effect as if the right of termination

on the part of the Independent Consultant had not arisen.

16.5 Where a Non-Defaulting Party has:

16.5.1 given notice to the Independent Consultant in compliance with Section

16.3;

16.5.3 given an undertaking to the Independent Consultant pursuant to Section

16.3.3; and

16.5.3 has assumed responsibility under this Agreement in accordance with

Section 16.4,

the Defaulting Party shall reimburse and indemnify such Non-Defaulting Party

against each and every liability which that Non-Defaulting Party has or may have

to the Independent Consultant by virtue of such undertaking.

16.6 The Relevant Parties hereby agree that the Independent Consultant shall not be

in breach of this Agreement in meeting its obligations under Section 16 hereof

and no claim shall be brought by the Relevant Parties if those obligations are

met.

17. IC PROJECT DOCUMENTS

17.1 Copyright in the IC Project Documents shall remain vested in the Independent

Consultant and subject thereto the Independent Consultant hereby grants to

each of the Relevant Parties and their nominees, the irrevocable right to use the

IC Project Documents, without compensation, such right to remain in full force

and effect notwithstanding termination of the Independent Consultant's

appointment for whatever reason or any dispute hereunder to copy and use the

IC Project Documents and to reproduce the works, designs and inventions

contained in the IC Project Documents for all purposes related to the Project,

including without limitation the construction, completion, reconstruction,

alteration, extension, maintenance, letting, promotion, advertisement,

reinstatement, use and repair of the Project and the Relevant Parties' interests in

it (but so that such licence shall not extend to or include a licence to reproduce

the design contained in them for any future extension of the ITS Terminal), and

the Relevant Parties shall be entitled to grant licences on terms equivalent to the

provision of this Section 17 and the Relevant Parties' irrevocable right and such

licences shall be transferable without charge, provided always that the

Independent Consultant shall not be liable for the consequences of any use of the

IC Project Documents by the Relevant Parties or their nominees for any purpose

other than that for which they were prepared and provided by the Independent

Consultant.

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17.2 The Independent Consultant shall provide to the Relevant Parties at their

request such additional copies of all or any of the IC Project Documents as are

reasonably required by the Relevant Parties and shall provide such additional

information and co-operation as is reasonably required in connection with the

same.

17.3 Where any rights are vested in the Independent Consultant by virtue of any

Relevant Rules and Procedures, the Independent Consultant hereby irrevocably

waives any such rights in relation to the Project or any parts thereof and to any

IC Project Documents and shall obtain a written waiver from its employees from

time to time of any rights that they may have in respect of the same.

18. WAIVER

The failure of any party at any one time to enforce any provision of this

Agreement shall in no way affect its right thereafter to require complete

performance by any other party, nor shall the waiver of any breach or any

provision be taken or held to be a waiver of any subsequent breach of any

provision or be a waiver of the provision itself.

19. SEVERABILITY

In the event that any term, condition or provision contained in this Agreement

shall be held to be invalid, unlawful or unenforceable to any extent, such term,

Section or provision shall, to that extent, be omitted from this Agreement and the

rest of this Agreement shall stand, without affecting the remaining Sections.

20. COUNTERPARTS

This Agreement may be executed in any number of counterparts, all of which

when taken together shall constitute one and the same instrument.

21. VARIATION

A variation of this Agreement is valid only if it is in writing and signed by or on

behalf of all parties hereto.

22. DISPUTES RESOLUTION PROCEDURE

22.1 All disputes shall be resolved in accordance with terms equivalent (mutatis

mutandis) to the dispute resolution procedure set out in Section 31 (Dispute

Resolution) of the Concession Agreement but:

22.1.1 excluding Sections 31.3 (Expert) of the Concession Agreement; and

22.1.2 where the Independent Consultant is a party to the dispute, a

representative of the Independent Consultant shall sit on the Project

Dispute Resolution Board as envisaged under Section 31.2 (Project

Dispute Resolution Board) of the Concession Agreement.

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22.2 The Relevant Parties and the Independent Consultant shall co-operate to

facilitate the proper, just, economical and expeditious resolution of any and all

such disputes which arise under this Agreement.

23. GOVERNING LAW AND JURISDICTION

This Agreement and its interpretation or construction shall be governed by the

laws of the Republic of the Philippines, and (subject to Section 22) the parties

hereby submit to the exclusive jurisdiction of the courts of the Republic of the

Philippines.

24. ENTIRE AGREEMENT

This Agreement supersedes any previous agreement or arrangement between

the parties in respect of the IC Services or Varied IC Services (whether oral or

written) and, subject to the provisions of the Concession Agreement, represents

the entire understanding between the Parties in relation thereto.

25. LIMITATION OF LIABILITY

25.1 With the exception of liability for death, personal injury, and/or any other

liability that cannot lawfully be excluded or limited, the Independent

Consultant's maximum aggregate liability for all parties, under or in connection

with this Agreement, whether in contract or in tort or for breach of statutory

duty or otherwise, shall be limited to loss or damage that is a direct result of the

Independent Consultant's breach, negligence or default and shall be limited to

twenty million Philippine Pesos (PhP20,000,000) in the aggregate.

25.2 [Notwithstanding anything to the contrary elsewhere in this Agreement, the

parties hereby expressly agree that the Independent Consultant shall have no

liability to any party under or in connection with this Agreement for any claim or

claims related to terrorism, [insert any others].]

25.3 Except as provided in Section 11, no action or proceedings under or in

connection with this Agreement shall be commenced against the Independent

Consultant after the expiry of ten (10) years after the completion of the IC

Services (and the Varied IC Services, if applicable) or termination of this

Agreement.

26. INDEPENDENT CONTRACTOR, NO PARTNERSHIP

26.1 The Independent Consultant shall be an independent contractor with respect to

the IC Services and any Varied IC Services to be performed under this

Agreement. The Independent Consultant shall not be deemed to be an employee

of the Relevant Parties.

26.2 Nothing in this Agreement shall be construed as creating a partnership, joint

venture or other association or the relationship of principal and agent between

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the Relevant Parties and the Independent Consultant. The Grantor, the

Concessionaire and the Independent Consultant shall not conduct themselves in

such a way as to create an impression that such a relationship exists. The

Relevant Parties shall not be responsible or liable for the Independent

Consultant’s actions or omissions.

IN WITNESS WHEREOF the Parties have executed and delivered this Agreement as an Agreement on the date first written above.

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By:

By:

WITNESSED BY: _______________________________. _______________________________

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SCHEDULE 1

IC SERVICES

1. General

1.1 The Independent Consultant shall:

1.1.1 Perform all of the duties, tasks, functions and obligations; and exercise all

of the rights (as appropriate), of the Independent Consultant as set out

and provided in the Concession Agreement, the Works sub-contracts [and

the O&M Agreement] or as would be reasonably foreseen by an

experienced Independent Consultant as forming a necessary part of an

Independent Consultant’s duties.

1.1.2 During the carrying out of the Works, visit that part of the Works at

appropriate intervals to inspect the various elements of the Works in the

presence of the relevant Works Subcontractor (if so required by them) to

verify that the same are constructed in accordance with the requirements

of the Concession Agreement; and keep the Relevant Parties advised of

such matters. This provision includes the reviewing and determining

whether the mitigations identified in the E&S Impact Assessment

submitted by the Concessionaire are being applied and approving the

same (in accordance with Section 10.1.c (Design) of this Concession

Agreement) and the assessment of the E&S management and monitoring

plans prepared by the Concessionaire as required by Schedule 5

(Engineering, Procurement and Construction of the ITS Terminal and Access

Road).

1.1.3 Monitor, inspect and keep the Relevant Parties advised of the state and

progress of the Work(s) and participate, as required, in the procedures

for the identification, approval and implementation of Changes in

accordance with the Concession Agreement.

1.1.4 Provide to the Grantor and/or the Concessionaire at their request such

additional copies of all or any of the documents prepared by the

Independent Consultant as are reasonably requested by the Grantor

and/or the Concessionaire from time to time and provide such additional

information and co-operation as is reasonably required in connection

with the same.

1.1.5 As and when requested by the Grantor or the Concessionaire, participate

in the resolution of any dispute between the Grantor and the

Concessionaire under Section 31 (Dispute Resolution) of the Concession

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Agreement to the extent that the issues that are the subject of dispute

under the Concession Agreement and have been referred to the said

dispute resolution procedure relate to any of the Independent

Consultant's services, duties and/or obligations under this Agreement.

1.1.6 Undertake regular site visits throughout the duration of the IC Services,

recognizing that the frequency and timing of the Independent

Consultant's visits shall be dependent on the progress of Works at and on

the Project Land.

1.1.7 Undertake an annual audit of the quality control documentation for the

Works to verify that quality control in accordance with the MPSS relating

to the Works has been implemented.

1.1.8 Liaise, as necessary, with the nominated representatives of the

Concessionaire and the Grantor.

1.2 In accordance with the Concession Agreement, the Independent Consultant shall

provide the following:

Certification

1.2.1 certificate of Project Land acquisition

1.2.2 certificate of Approval of Design Submittals Schedule;

1.2.3 Design Acceptance Certificate (and any updates);

1.2.4 Provisional Acceptance Certificate(s); and

1.2.5 Final Acceptance Certificate,

Reports and Notices

together with all notices and reports as required by the Relevant Parties,

including but not limited to:

1.2.8 Commissioning and Acceptance Notice;

1.2.9 Detailed Design Rejection Notice; and

1.2.10 Independent Consultant Failure Report.

2. Project Land

2.1 Upon acquisition of the Project Land or any part thereof, the Grantor shall

provide all the information and documents in relation to such acquisition to the

Independent Consultant. Thereafter, the Independent Consultant shall undertake

an inspection of such Project Land and, it shall:

2.1.1 confirm to the Relevant Parties, by issuance of a binding certificate, such

Project Land has been acquired; or

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2.1.2 state the Grantor have not acquired such Project Land, notifying the

Grantor of all missing elements of such Project Land.

2.2 Where the Independent Consultant determines that the Grantor have not

acquired any part of the Project Land, it shall undertake a further inspection

once the Grantor have confirmed the remainder of such Project Land (as notified

by the Independent Consultant in accordance with paragraph 2.1.2) has been

acquired.

2.3 Where satisfied that the Grantor have acquired the Project Land the Independent

Consultant shall issue a Certificate of Project Land acquisition to the Relevant

Parties.

3. Design Submittals Schedule Approval

3.1 The Independent Consultant shall within ten (10) days of receipt of the same,

review the Design Submittals Schedule and consider the proposed schedule

against the timescales and Milestones stipulated in the Concession Agreement. If

in the Independent Consultant's reasonable opinion the Design Submittals

Schedule is consistent with the satisfaction by the Parties with the timescales

and Milestones stipulated in the Concession Agreement, it shall, subject to

paragraph 4.2, approve the Design Submittals Schedule and issue a Certificate of

Approval to the Concessionaire.

3.2 The Independent Consultant may require revisions to be made to the Design

Submittals Schedule prior to issuing a Certificate of Approval. However, such

revisions shall not unreasonably prejudice the Concessionaire’s ability to achieve

the Milestones set out in Section 4.2 (Milestones) of the Concession Agreement.

4. Time Extensions

4.1 Where the Grantor and the Concessionaire are unable to agree upon any Time

Extension in accordance with Sections 14.6 (Consequences of Grantor Delay

Event) and 14.7 (Consequences of Force Majeure Delay Event) of the Concession

Agreement, the Independent Consultant shall promptly meet with the Relevant

Parties to discuss such Time Extension requirement.

4.2 Within [three (3) working] days of the meeting in accordance with paragraph

5.1, the Independent Consultant shall notify the Grantor and the Concessionaire

in writing of its determination of the relevant Time Extension. Such

determination shall be binding.

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5. Detailed Design Approvals

General

5.1 The Independent Consultant agrees to follow the following principles in the

approval of Detailed Designs submitted by the Concessionaire:

5.1.1 The relevant Detailed Design is in accordance with the relevant Minimum

Performance Specification and Standards (MPSS) as detailed in Schedule

5 (Engineering, Procurement and Construction of the ITS Terminal and

Access Road) to the Concession Agreement;

5.1.2 The relevant Detailed Design follows the minimum standards to be

applied as detailed in Schedule 5 (Engineering, Procurement and

Construction of the ITS Terminal and Access Road) and Prudent Industry

Practice;

5.1.3 The relevant Detailed Design meets all Relevant Rules and Procedures;

and

5.1.4 The Detailed Design does not, in the implementation, contemplate or

require that the relevant Detailed Design is or is likely to:

(a) be completed later than the time provided for that completion in the

Concession Agreement; and/or

(b) lead to the costs to be borne by the Grantor in carrying out their

obligations under the Concession Agreement, being higher (whether

by reason of Delay, inefficient operation or otherwise) that are

contemplated by the Concession Agreement.

Submissions for Approval

5.2 Each relevant Detailed Design submission for approval provided by the

Concessionaire shall be accompanied by:

5.2.1 the proposed relevant Detailed Design in respect of the Works; and

5.2.2 an explanation, in such detail as is necessary or expedient to enable the

Independent Consultant fully and efficiently to understand the relevant

Detailed Design, and in particular how it complies with the Design

Requirements.

5.3 For the purposes of the Independent Consultant's consideration of the relevant

Detailed Design, where it requires further information to that provided by the

Concessionaire in accordance with paragraph 5.2, it may reasonably request the

same from the Concessionaire. In such case, the Independent Consultant shall

promptly make such a request, in writing, of the Concessionaire.

Review and Approval of Detailed Design

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5.4 The Independent Consultant will review for compliance with the design

requirements the submissions of Detailed Designs of the Concessionaire and

make a decision as to its approval, rejection or request for further information of

the same within twenty (20) Business Days of receipt of such submission from

the Concessionaire.

5.5 Following the decision by the Independent Consultant in accordance with

paragraph 5.4, where the Independent Consultant approve a submitted Detailed

Design, the Independent Consultant shall issue a Design Acceptance Certificate

within the time specified, approving the submitted Detailed Design.

Rejection of Detailed Design

5.6 If a submitted Detailed Design is rejected, the Independent Consultant shall issue

a notice of rejection to the Concessionaire that must specify in detail why the

submitted Detailed Design fails to comply with the Design Requirements and in

general terms what the Independent Consultant considers necessary to be done

to the submitted Detailed Design to make it comply with the Design

Requirements.

Request for Further Information

5.7 The Independent Consultant shall stipulate a reasonable time for the

Concessionaire to respond to a request for further information.

5.8 In the case of a rejection of a Detailed Design or request for further information,

the Independent Consultant shall engage in an iterative dialogue with the

Relevant Parties in relation to further submission (whether amended or a new

Detailed Design) so as to maximize the probability that the further submission

shall be approved.

6. Changes to Detailed Design following issuance of a Design Acceptance

Certificate

6.1 The Grantor and Concessionaire shall ensure that the Independent Consultant is

involved in the process for the submission and approval of Detailed Design

Changes in accordance with Part 2 (Minimum Performance Specification and

Standards) of Schedule 5 (Engineering, Procurement and Construction of the ITS

Terminal and Access Road) to the Concession Agreement.

6.2 The Independent Consultant shall review the Relevant Parties proposed Detailed

Design Changes submitted after the Design Acceptance Certificate has been

issued. In addition, the Independent Consultant shall evaluate the submitted

Detailed Design Change and ensure the proposed Detailed Design Change has

been submitted in accordance with paragraph 10 of Part 2 (Minimum

Performance Specification and Standards) of Schedule 5 (Engineering,

Procurement and Construction of the ITS Terminal and Access Road).

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6.3 The Independent Consultant shall review the impact of the proposed Detailed

Design Change to ascertain:

6.3.1 Any material adverse affect upon the cost of the relevant Works;

6.3.2 The probability that the requirements of the Design Submittals Schedule

shall be met:

6.3.3 The probability that the requirements of the Works Timetable shall be

met; and

6.3.4 The probability that the Required Extension Completion Date shall be

met.

6.4 Following a review in accordance with paragraphs 7.2 and 7.3, the

Independent Consultant shall provide the Grantor and the Concessionaire with a

report:

6.4.1 Detailing the findings of the Independent Consultant’s review of the

proposed Detailed Design Change against the objectives in paragraph 5

and the submission requirements at paragraph 10 of Part 2 (Minimum


Procurement and Construction of the ITS Terminal and Access Road);

6.4.2 Prepared on a 'by exception' basis, setting out the conclusion(s) and any

recommendation(s) of the Independent Consultant;

6.4.3 Where the Independent Consultant is satisfied that the Proposed Detailed

Design Change meets the objectives in paragraph 5 and the submission

requirements at paragraph 10 of Part 2 (Minimum Performance

Specification and Standards) of Schedule 5 (Engineering, Procurement and

Construction of the ITS Terminal and Access Road), then the Independent

Consultant will issue a notice of approval authorizing the required

changes to the Design Acceptance Certificate and will issue an updated

Design Acceptance Certificate to the Concessionaire and

6.4.4 Where the Independent Consultant considers the proposed Detailed

Design Change does not satisfy the requirements of paragraph 10 of Part

2 (Minimum Performance Specification and Standards) of Schedule 5

(Engineering, Procurement and Construction of the ITS Terminal and Access

Road), identifying such deviations in any recommendation(s) made

pursuant to paragraph 6.4.2 above, for the consideration of the Grantor

and the Concessionaire.

7. Minimum Performance Specification and Standards (MPSS)

7.1 The Grantor and Concessionaire shall ensure that the Independent Consultant is

involved in the process for the submission and approval of MPSS Changes in

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accordance with Part 2 (Minimum Performance Specification and Standards) of

Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and

Access Road) to the Concession Agreement.

7.2 The Independent Consultant shall review the Relevant Parties’ proposed MPSS

Changes submitted after the Design Acceptance Certificate has been issued. In

addition, the Independent Consultant shall evaluate the submitted MPSS Change

and ensure the proposed MPSS Change has been submitted in accordance with

paragraph 11 of Part 2 (Minimum Performance Specification and Standards) of

Schedule 5 (Engineering, Procurement and Construction of the ITS Terminal and

Access Road).

7.3 Following a review in accordance with paragraph 7.2, the Independent

Consultant shall provide the Grantor and the Concessionaire with a report:

7.3.1 detailing the findings of the Independent Consultant’s review of the

proposed MPSS Change against the objectives in paragraph 5 and the

submission requirements at paragraph 11 of Part 2 (Minimum


Procurement and Construction of the ITS Terminal and Access Road);

7.3.2 prepared on a 'by exception' basis, setting out the conclusion(s) and any

recommendation(s) of the Independent Consultant;

7.3.3 Where the Independent Consultant is satisfied that the Proposed MPSS

Change meets the objectives in paragraph 5 and the submission

requirements at paragraph 11 of Part 2 (Minimum Performance

Specification and Standards) of Schedule 5 (Engineering, Procurement and

Construction of the ITS Terminal and Access Road), then the Independent

Consultant will issue a notice of approval authorizing the required

changes to the Design Acceptance Certificate and will issue an updated

Design Acceptance Certificate to the Concessionaire; and

7.3.4 where the Independent Consultant considers the proposed MPSS Change

does not satisfy the requirements of paragraph 11 of Part 2 (Minimum


Procurement and Construction of the ITS Terminal and Access Road),

identifying such deviations in any recommendation(s) made pursuant to

paragraph 7.3.2 above, for the consideration of the Grantor and the

Concessionaire.

8. Commissioning and Acceptance

8.1 The Independent Consultant shall review the Commissioning and Acceptance

Plan relating to the ITS Terminal and Access Road, provided by the

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Concessionaire to verify to the satisfaction of the Relevant Parties that the

Commissioning and Acceptance Plan and procedures:

8.1.1 includes all processes, outputs and contractual requirements of all

suppliers and Sub-Contractors of the Concessionaire;

8.1.2 provides clear milestones for the measurement of:

(a) progress of the ITS Terminal to completion;

(b) achieving the Completion Date on or before the Required

Completion Date; and

8.1.3 encompasses all the requirements contemplated in Schedule 5 Part 3

(Commissioning and Acceptance), and the Concession Agreement.

8.2 The Independent Consultant shall require the Concessionaire to amend or

provide additions to the Commissioning and Acceptance Plan to meet the above

requirements as necessary.

8.3 The Independent Consultant shall be present at all Commissioning and

Acceptance Tests. This shall include the Commissioning and Acceptance Tests

associated with the Works and various parts thereof as contemplated in Section

12 (Commissioning and Acceptance) and Schedule 5 Part 3 (Commissioning and

Acceptance) of the Concession Agreement.

9. Commissioning and Acceptance Notice

9.1 Following each Commissioning and Acceptance Test, the Independent Consultant

shall issue a Commissioning and Acceptance Notice to the Relevant Parties

where the requirements contemplated in:

9.1.1 Sections 12.6.a to 12.6.b (Determination) of the Concession Agreement

have been met and the Independent Consultant shall comply with the

provisions of paragraph 12 (Full acceptance) of this Schedule; and

9.1.2 Sections 12.6.a, 12.6.c and 12.6.e (Determination) of the Concession

Agreement have been met and the Independent Consultant shall comply

with the provisions of paragraph 10 (Provisional Acceptance Certificate) of

this Schedule.

10. Provisional Acceptance Certificate

10.1 When the requirements of Section 12.8 (Substantial Acceptance) of the

Concession Agreement are satisfied, the Independent Consultant shall issue a

Provisional Acceptance Certificate(s) (including the detail at Sections 11.8 of the

Concession Agreement).

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10.2 Following receipt of a notice from the Concessionaire in accordance with Section

12.11 (Notice of rectification of Punch List Items) of the Concession Agreement,

the Independent Consultant shall:

10.2.1 be present at the re-testing of any relevant Punch List Item(s); and

10.2.2 comply with its obligations under the provisions of Section 12.6

(Determination) of the Concession Agreement in relation to such Punch

List Item(s).

10.3 Following a re-test of any relevant Punch List Item(s), where such Punch List

Item(s) are assessed by the Independent Consultant as:

10.3.1 having been rectified, the Independent Consultant shall comply with the

provisions of paragraph 13 of this Schedule; and

10.3.2 subject to Section 12.12 (Failure to rectify defects) of the Concession

Agreement, not having been rectified, the Independent Consultant shall

comply with the provisions of paragraph 11.2 of this Schedule.

11. Rejection of Commissioning and Acceptance Test

11.1 The Independent Consultant may reject a Commissioning and Acceptance Test.

In doing so the Independent Consultant shall provide the Relevant Parties with

an Independent Consultant Failure Report specifying the detail contemplated in

Sections 12.13.c (Rejection) of the Concession Agreement.

11.2 Once notified by the Concessionaire that the requirements of Sections 12.13

(Rejection) of the Concession Agreement have been met, the Independent

Consultant shall observe the requirements of paragraph 10 of this Schedule.

12. Full Acceptance

12.1 The Independent Consultant shall issue a Final Acceptance Certificate for the

Works to the Concessionaire as contemplated in Section 12.7 (Full acceptance) of

the Concession Agreement.

13 Termination

On a termination of the Concession Agreement the Independent Consultant shall

provide such assistance as is within its power to the Expert to determine the

sums payable upon the termination pursuant to Schedule 8 to the Concession

Agreement including the certification to the Expert of the values of “WIP” and

“Concessionaire Capex” (each defined in Schedule 8 and shall confirm the

absence of double counting in the valuations thereof).

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SCHEDULE 2

IC FEE

1. The fee for the IC Services is [__] Philippine Pesos (PhP [__]) (the "Fee").

1.1 The Fee shall be paid in the following manner.

1.2 Following the issue of the notice to proceed, the Independent Consultant shall receive the fee in accordance with the following payment schedule;

Month Fee PhP Estimated Total Man-hours

[insert Year]

[insert Month] [insert Month No.]

[insert amount]

[insert hours]

[insert Year]

[insert Month] [insert Month No.]

[insert amount]

[insert hours]

2. Expenses

The Fee is inclusive of reasonable expenses incurred in association with the performance of the IC Services or the Varied IC Services (travel, accommodation, subsistence, and communications).

3. Hourly Rates for Calculating Increase in Fee for Varied IC Services

3.1 The rates to be used as the reference point for calculating any increase in the Fee for Varied IC Services are as follows:

Staff Title‡ Staff Hourly Rates (PhP)

Project Director [insert amount]

Project Manager [insert amount]

Senior Technical Specialist [insert amount]

Independent Consultant [insert amount]

‡ NOTE: To be adjusted once IC procurement complete.

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General Technical Adviser [insert amount]

Technical Assistant [insert amount]

3.2 The rates quoted are exclusive of [insert reference to relevant Philippine tax(es) as relevant] [and are subject to amendment annually on the 1st of January each year (commencing 1st January [insert year]) to account for inflation. Adjustments shall be based on [insert appropriate reference] index + [insert]%.]

3.3 If the Fee is increased reasonable expenses associated with the work performed for the increased Fee (travel accommodation, subsistence and communications) shall be reimbursed.