Contractual documentation

While this section refers to a contract, it is likely that there are a number of contractual documents associated with each project. The contract is a comprehensive document which includes certain schedules to be completed based upon information from the successful RFP response.  Some of the potential contractual documents to be included as part of the RFP are:

•  the project / concession agreement;

•  services specifications;

•  direct / tripartite deeds with financiers, builders and operational service providers; and

•  security documents providing government with rights over the assets of the project.

The issue of the contract as part of and concurrently with the RFP ensures that all parties are aware of the specific contractual terms that government is seeking and have enough opportunity to raise any issues of concern. It also limits subsequent negotiations to clearly identified and fully drafted departures (where relevant).

Prior to the drafting of the contractual documentation, the key commercial principles should be agreed.  These are often summarised in a commercial framework summary and included as part of the RFP (as well as being used to instruct the legal team in its drafting).

As part of the RFP response, bidders should be asked to provide a departure schedule which identifies all instances where they have departed from the draft contractual documents included as part of the RFP, including rationale and cost for each departure.

Jurisdictions may also require a fully marked-up contract and schedules outlining any instances of departures from the draft contracts.