The preparation and procurement of a Privatization project occurs through a series of complex processes, which require a combination of data collection, analysis, technical activities, strategy formulation, and decision-making. In the aggregate, these processes are completed using a combination of in-house resources (civil servants and special hires) and advisors.
These efforts only occur, however, through the express and implied authority granted to the bodies and individuals undertaking the preparation, procurement, and processes of the Privatization. As a result, while advisors are an essential component of an Entity's Privatization program, their express and implied authority is limited to the terms and conditions of the contracts under which they were retained, (which shall be in the form of the NCP standard form advisors' engagement contract), and certain acts are not appropriate for delegation to an advisor. These include:
a) making a decision which obligates the government to commit a specific action.
b) determining a government strategy.
c) obligating governmental funds.
d) assuming an obligation on behalf of the government and/or relieving an obligation owed to the government.
e) relinquishing governmental rights.
Advisors can recommend that the government make a certain decision, adopt a certain strategy, make a certain spending commitment, or assume a certain obligation, but the express and implied authority to make that determination on behalf of the government is inherently governmental, and can only be made by a properly authorized government employee or body. This principle shall be applied to, and shall limit, the Entity or Work Team's delegation of authority to advisors in the preparation, procurement, and undertaking of processes related to Privatization projects.
In contracting for advisory services, Entities and Work Teams shall clearly specify the extent and nature of an advisor's authority, and shall not empower or delegate to advisors, either expressly or impliedly, the authority to take actions or make decisions on behalf of government. The following paragraphs provide further explanatory examples of these restrictions. For example:
a) An advisor may participate as a member of a negotiation team for a particular Privatization procurement. In this role, an advisor can review the submitted bid, analyze its compliance with the Entity's requirements as set forth in the RFP, identify issues or concerns, and prepare recommended negotiating positions. In contrast, an Entity employee shall make the decision as to what the Entity's actual negotiating position will be. Once that decision is made, the advisor can refine the negotiating position (if necessary), and assist in the actual negotiation with the bidder, but at all times shall act within the bounds of the discretion, authority, and decision of the Entity's employee. The advisor would furthermore not make decisions on behalf of the Entity, nor attempt to exercise any express or implied authority to commit the Entity to any course of action.
b) An advisor may also participate as a member of a Work Team in a pre-bid conference. In this role, the advisor may share with bidders proposed aspects of the project, answer questions related to the anticipated approach to construction or certain technical components of the project, or highlight how the project is likely to interface with other public assets and services, etc. In contrast, only a properly authorized government employee (and in this case only with Supervisory Committee approval of the project's technical parameters) may commit the government to the type of technical solutions that will be used in a project. Once that decision is made, the advisor may convey to bidders in a pre-bid conference the practical implications of that decision on the project, but cannot commit the government to a specific technical course of action beyond that which was authorized.
As a result, Entities and Work Teams shall control the use of advisors, careful specify what activities they are authorized to perform and representations they have authorized to make, and disclaim and/or clarify any acts or representations made by advisors that exceed their limited authority.
Upon request, NCP will assist in answering any questions, making any clarifications regarding the application of these limited authority principles and appropriately scoping advisor authority.