The procedures detailed below shall be applied to appoint the transaction Advisor, the legal and technical consultants and any other consultants. It is not necessary to make all these procedures at the same time. After that, the committee/Federal Entity shall take the decision regarding the contract form, whether to contract with an individual consultant or with a alliance of consultants includes the transaction Advisor, legal consultant, technical consultant and/or another consultant.
As set out above, it is preferred to contract with the transaction Advisor before proceeding with appointing the remaining consultants due to the important role it plays in this process. The appointment of the transaction Advisor shall commence when the project committee decides awarding method to be approved.
Then, the Project Committee shall draft the terms of reference document that details the expected objectives of the joint project and its conformity with the government program. The terms of reference shall be detailed and clear in a manner promoting the quality of the consultants' bids without preventing or limiting the consultant's ability to provide new and innovative ideas.
A- Terms of Reference Document
The terms of reference document content varies depending on the nature of joint project. In general, the document shall include the following main parts:
• Project Background
The terms of reference shall include an overview on the project background, including the political environment, economic position, concerned sector status and related indicators, sector policy and needs, project legal and regulatory framework, project background and objectives, any initial studies carried out to date and any non-confidential information listed in the project proposal form.
• Work Scope and Plan
This article includes the contract expected period and a description of the consultant duty. It also includes a schedule explaining the significant events relating to reporting and decision-making.
• Skills and Experiences
This clause explains the special skills and experiences required from the consultancy companies and work team members.
• Consultancy Services Awarding Method
This clause identifies the method followed in awarding the required consultancy services, whether through an open international competitive bidding or Tendering. The Financial and Economic Committee may take decision whether to announce the list of the consultancy offices invited for bidding or not. It also may coordinate with the procurement-regulating unit to assist it in this process.
• Payments Regulation and Schedule
The consultant fees may be structured as follows:
1. On the basis of a lump sum fees in consideration for the completed works and the provided reports. These fees shall be due, for example, on the completion the project study, bidding requirements document or the contract draft. Another payment shall be paid after approving the outputs agreed upon and accepting it in its final form.
2. On the basis of daily fees, where the wage is hourly or daily fixed.
It is better to depend on the lump sum fees method in which the fees shall be due on work completion and accepting them in their final form, due to the incentive this method gives to the consultant in order to achieve the objectives in each main phase of the joint project awarding process and on the successful process completion.
The payment regulation may set out what is called "Success Fees", which are paid to the consultant, especially the transaction Advisor on the process financial completion and signing the PPP contract. The success fees shall usually be a percent of the PPP contract value to be paid together with or instead of the lump sum fees for the completed works.
• Professional Fees and Petty Expenses payment Mechanism (e.g. travel and materials expenses)
The professional fees shall be according to the payments specified in the contract and became due when the reports and works are completed and accepted by the committee/Federal Entity. These fees shall be paid under an invoice provided by the consultant, explaining the due amount.
The contract often includes an advance payment called advance fees. The purpose of this payment is to enable the consultant to form the work team and it shall became due once the contract is signed by both parties. In this case, the consultant shall provide an unconditional bank guarantee in the name of the Federal Entity, which is equal to the advance payment value.
The petty expenses are those relating to the consultant work team, printing, communications, travel, accommodation, etc. There are two methods of for paying such expenses:
1. Reimbursement Method: In this method, the expenses are paid for compensating actual expenses based on the supported invoices provided by the consultant. The total value of all submitted invoices shall be within a cap to be agreed upon with the consultant and included in the contract. It is preferred to identify and explain this cap in the terms of reference, or to request the consultant may be required to identify the maximum value of the petty expenses in its bid. If they included in the bid, they shall not constitute a part of the assessment criteria without being included in the bids assessment standards. In both cases, the consultant shall get a prior written consent before incurring such expenses.
2. Including them in the professional fees. In this case, the professional fees agreed upon in the contract shall include all petty expenses expected by the consultant throughout the work phases without detailing them. This method is the best one.
• Interest Conflict
The consultant shall not have any personal interest in the project. The consultant, its subsidiaries or any work team member shall not be entitled to provide advice to any potential private partner nor to execute any services, directly or indirectly, to any Federal Entity as these services may constitute an interest conflict.
• Bidding Rules
This article shall identify and explain all rules and procedures to be followed in the bidding process in terms of the deadlines, place of submission, any details relating to the review sessions or the Contact and Information Canter, if any, and the way to inquiry about any subject. This article also includes the submission requirements, such as the requirements of providing financial bid and/or technical bid depending on the assessment method to be followed and the approved models of the technical and financial bids.
o The technical bid gives consultants the chance to prove that they have the skills and experiences required to perform the required duties. It also allows them to suggest the amendments they deem appropriate to the proposed terms of reference to be in conformity with the project and the plan. The technical bid shall include information on the consultant office, which states the related experience, the proposed work team members, their skills and experiences and the role of each of them in terms of effort and time (Man-day). The proposed work team shall include local persons because of their importance in understanding ways of dealing with the local authorities.
o The financial bid shall include details of professional fees and, sometimes, the details of the petty expenses and the cap of the success fees. The contract total price shall be clear and identifies whether it includes the applicable taxes or not.
• Bids Assessment Method and Standards
This article identifies the bid assessment method and the significance/weight given to the technical aspect of the bids. It also identifies the weight distribution details and approved mechanisms for technical and financial aspects. In addition, it provides the points model followed to calculate the technical pointes.
• Contract Draft
The contract draft shall be attached to the terms of reference to inform the consultant of the contractual clauses and to allow them to submit any comments in order to save time in negotiation.
a. Invitation/ Announcement Writing
Having completed drafting the terms of reference and obtaining the Financial and Economic Committee approval, the project committee, assisted by the work team, shall prepare the invitation letter in case of approving the method of Tendering or the direct agreement, or prepare the announcement in case of approving the open international competitive bidding method.
This document shall include the project outlines, the consultancy duties the Federal Entity seeks to secure, and the periods for expressing interest, obtaining the terms of reference document and submitting the bids. This document shall also identify how to contact with the Technical Bureau for any other inquiries.
The invitation letter shall be sent in the same date to all consultancy offices decided to be invited for tendering. If the open international competitive bidding method is approved, the announcement shall be published in local and international newspapers and the Ministry and the competent Federal Entity websites.
b. Inquiries
The Project Committee shall prepare a list includes the names and addresses of consultancy offices who expressed their interest to participate in the bidding and requested to review the terms of reference document. It may decide whether to disclose that list or not. The communication with the Project Committee shall be in writing, and the committee shall reply to all received consultations and inquiries in the same way. The Project Committee shall circulate any issued clarifications or information to all participating consultancy offices in order to keep all parties informed with all awarding procedures without prejudice to the right of any participant.
The deadline for receiving inquiries and replying thereto shall be at (XX) before the bids submission date set out in "Bidding Rules" clause set out in the terms of reference.
The Project Committee may hold a review session if it received any essential inquiries requires doing so. The representatives of the participating consultancy offices shall attend this session. In this session, the Project Committee shall highlight the main characteristics of the terms of reference, identify the project vision and objective, and state the challenges that may face the execution process. The review session shall provide to the project committee members, who will assess the bids, the chance to meet the participants, introduce them to each other and promote transparency and competition among participants.
c. Receiving Consultancy bids
At the bids receiving day in the presence of the majority of the work team members, the work team shall be responsible for receiving, recording, and keeping the consultancy bids if received by hand. In the event of electrical receipt, the technical bids shall be opened first in the presence of the team members, and after assessing the technical bids, the financial bids shall be opened.
When receiving bids, the work team shall ensure that the bids are submitted as set out in terms of reference document and that they are completed according to the followed awarding mechanism in terms of the number of copies and the supporting documents. It shall also ensure that the financial bid is separated from the technical bid if the joint technical and financial common assessment method is approved.
The work team shall not open the envelopes containing the financial bids and shall keep it in a safe place until the Project Committee requests for receiving the same.
d. Consultancy Bids Assessment
Transparency in the bids assessment is the cornerstone to successfully complete the contraction. To ensure that transparency, the bids, especially the financial bids, shall be opened in a public session in the presence of representatives from the applicant consultancy offices.
In order to enhance transparency, the Project Committee shall strictly comply with the assessment rules set out in the terms of reference, especially in respect of application of the financial and technical elements weights, and the points model followed in points calculation, in compliance with the terms of reference document.
The Project Committee shall identify the way of putting technical points, whether by consultation between the committee members and then unanimously approving the points, or each committee member shall put the points it deems appropriate, then an average is approved, or by following any other agreed way.
After finishing assessment, the Project Committee shall identify the best consultant whose bid has obtained the best points, and consequently it shall be the bid that meets the competence standards and the required resources.
e. Committee Approval And Contract Negotiation And Signing
After identifying the best consultant, the Project Committee shall submit the assessment results, the bidders ranking and its recommendations regarding the best consultant to the Financial and Economic Committee (through the Ministry) for approving thereof and to commence with negotiation within minimum limits due to the negotiation force of that preferred consultant has. This negotiation may relate to some notes on the contract clauses reviewed by consultants as part of the terms of reference document or may focus on the reports to be prepared by the consultant or on the fees according to the approved awarding method.
The Federal Entity shall not incur any liabilities towards the preferred consultant or any other bidder invited for negotiation, unless the contract is signed.
If the negotiations fail to reach an acceptable contract, the Project Committee shall end the same and invite the next consultant for negotiation. The best consultant shall be notified in writing with the reasons behind the negotiations termination upon starting the negotiations with the second consultant. The Project Committee may not reopen the previous negotiations with the first consultant.
Upon successful completion of the negotiations, the contract shall be duly signed between the Federal Entity and the best consultant or the second consultant in case of failure to contract with the winning consultant. The Ministry shall notify other non-winning bidders.