|
ADMINISTRATION |
|
53. |
Q: |
The following documents on the
enclosed DVD cannot be opened or viewed.
Master Folder B: Enclosures to
the RFP and ToR
Sub-Folder Enclosure 05: Kuwait
Council of Ministers Decree
COM Decree 564 (Arabic)
COM Decree 564 (English)
Sub-Folder Enclosure 09:
Regional Environmental Remediation Group
REFRAG –Structure; Objectives &
Administration
Master Folder C: Data Room
Documents
Sub-Folder C. Terrestrial
Environments –Remediation Tech
RT3 FinalC.3_RT3 Vol3-Rpt
Sub-Folder C. Terrestrial
Environments – Annex 1 (Satellite Maps)
Numerous 50K Maps for Minagish,
Great Burgan, Rawdatain oil fields
|
|
|
A: |
Kuwait NFP will email the
documents to each bidder. |
|
54. |
Q: |
Are there any other rules for
bidding, approved by the Kuwaiti Central Tender Committee, in addition
to the provisions included in the Request for Proposal and Terms of
Reference, Invitation to Tenderers, Instructions to Tenderers, General
Terms and Conditions, and Draft Services Agreement (DSA)? |
|
|
A: |
Kuwait NFP is aware of no other
rules for bidding other than those included in the Request for Proposal
and Terms of Reference, Invitation to Tenderers, Instruction to
Tenderers, General Terms and Conditions, Draft Services Agreement. |
|
55 |
Q: |
Is Final Insurance bond to be
valid for 5 years, or valid for 12 months and thereafter renewed every
12-month period? |
|
|
A: |
The final insurance is to be
valid for 1 year and renewable every year (see Article 5 of Document 4
and F.2 (o) page 3-58 of Document 3. |
|
56 |
Q: |
Is there a guarantee period for
the Final Insurance (generally referred to as a Performance Bond)? If
yes, what is its duration? |
|
|
A: |
The guarantee period is for each
12 month budget period. |
|
57 |
Q: |
Can bidding consortiums change
the members of the bidding team, or add additional members to the
bidding team? |
|
|
A: |
The bidding consortiums may
change the individuals in its bidding team or add additional firms or
entities as long as such firms or entities have not previously
participated in any M&A activities. However, after the proposal has
been submitted, the consortiums will need the approval of Kuwait NFP to
change their membership, again with the caveat that firms or entities
previously participating in the M&A activities cannot be added. |
|
58 |
Q: |
May Vendors use a font smaller
than 12-point for table, charts and other graphics? May Vendors use 11
x 17 pages for graphics, charts and other graphics, assuming each 11 x
17 page will count as two pages? |
|
|
A: |
The Vendor can use whatever page
size and font size it desires for a clear presentation of charts, etc.
but the Vendor proposal is limited to the equivalent of a maximum of 200
pages of A4 or 81/2 x 11 using 12-point font. KNFP is trying to
discourage abuses of these limits, not minor excursions. |
|
59 |
Q: |
Please clarify possible
liabilities to the Vendor if the PPSC contract is, in fact, subject to
the Kuwaiti Offset Program. |
|
|
A: |
The PPSC contract is subject to
the Kuwaiti Offset Program, however, owing to the nature of the
remediation program and source of funding, Kuwait NFP is seeking for an
exemption from the Kuwaiti Offset Company. Kuwait NFP is optimistic
that it will be granted an exemption from the Kuwaiti Offset Company. |
|
60 |
Q: |
Section G.9 (Withdrawals and
Modification of Proposals) states that
“Proposals may be modified or
withdrawn by effective written notice received by Kuwait NFP prior to
the deadline for the submission as reflected on the cover page. After
this period, the price quoted in the Proposal must remain unchanged.
Thereafter, any change in the price will be at the sole discretion of
Kuwait NFP upon the Vendor presenting a valid justification for the
proposed variation to the agreed upon price.” The second sentence in
this section seems to conflict with the sentence immediately following
it. Please clarify whether the price submitted may or may not be altered
after submitting proposals. In addition, Article 4 of the General
Terms and Conditions states that Kuwait NFP will not accept revisions of
“price modifications to the Financial Proposal after the submission of
the Tender Offer.” May Vendors change their price after the deadline for
submitting proposals as long as NFP agrees with the change? |
|
|
A: |
As a practical matter the price
cannot be changed according to Kuwaiti law after the deadline.
|
|
61 |
Q: |
What logistical support will
Kuwait NFP provide to the PPSC (office spaces, transportation, logging,
subsistence)? |
|
|
A: |
The successful bidder is
anticipated to set up its own headquarters and make provisions for its
employees. Kuwait NFP has allocated limited space for work that the
PPSC will have to conduct inside Kuwait NFP premises (Refer to Article
14 of Document 4: Draft Services Agreement (DSA). |
|
62 |
Q: |
Is there any possibility that
payment be made partly in foreign currency in a bank in Kuwait or
outside Kuwait |
|
|
A: |
No. As per Kuwaiti rules and
regulations all payments to contractors are to be made in Kuwaiti Dinars.
However, it is easy to set up an account for transferring funds outside
Kuwait, and the money can be freely moved outside Kuwait without any
restriction. |
|
63 |
Q: |
Is there any form for the
preliminary insurance, i.e. the bid guarantee? |
|
|
A: |
Yes. A sample will be posted on
Kuwait NFP's website. |
|
64 |
Q: |
Tenderers will be registered
with the Ministry of Commerce. Do we have to fill any registration form? |
|
|
A: |
Yes registration formalities
will necessarily involve filling forms. Firms, Entities, and
Consortiums must request their local representatives to assist with
registration of the firm/entity/consortium with the Ministry of
Commerce. |
|
65 |
Q: |
The amounts required in terms of
insurances are not specified. It would be useful to get the values
required for bidding purposes. |
|
|
A: |
Kuwait NFP will not provide
insurance values. Kuwait NFP looks to the Vendors to propose a
reasonable amount of insurance and cover that in the cost of their bid.
However, Kuwait NFP recommends that Vendors seek the assistance of their
local representative in this matter. |
|
66 |
Q: |
Is it possible to provide a more
detailed explanation on insurance policies to cover Kuwait NFP? |
|
|
A: |
Kuwait NFP must be a named
insured and the policy must be primary and not secondary to other
insurance. This way, if Kuwait NFP is sued it has rights under the
insurance policy without having to take out insurance policies of its
own. |
|
67 |
Q: |
Please clarify the role of the
Independent Reviewers in the determination of highest professional basis
and criteria in Article 15 of Document 2. Also, please clarify the role
of the Independent Reviewers with respect to invoice approval for the
PPSC. |
|
|
A: |
Kuwait NFP will determine the
professional qualifications of the professionals proposed by PPSC, and
will approve all invoices submitted by PPSC. Invoices will be approved
upon completion of milestones. |
|
68 |
Q: |
Paragraph P on page 3-59 states
"Kuwait NFP will allow for advance payments not to exceed 15% of the
entire contract value of for each 12 month budget..". Please define
whether this is the total contract value or for each 12 month budget. |
|
|
A: |
The advance payment is for each
12 month budget. |
|
69 |
Q: |
Section C.8.d. (page 3-36)
requires the PPSC to manage all KERP activities, and states, “Develop
and implement financial management and oversight systems for all
projects,…”. Does this include tracking and oversight of reimbursable
expenses? Please clarify what accounting standard will be required by
KNFP, or specify if the PPSC will be required to define an accounting
standard? |
|
|
A: |
Yes, it includes tracking and
oversight of reimbursable expenses. PPSC will be required to define an
accounting standard. |
|
70 |
Q: |
Section F.2.o. (Page 3-58)
states, “The successful Vendor must provide a performance bond equal to
10% (Ten Percent) of the value of the then current 12-month budget,
excluding the 15% contingency.” This appears to require the PPSC to Bond
the reimbursable portion of the budget, which is in conflict with DSA
Article 5 (page 4-11). Please confirm that the reimbursable expenses
are not included in the performance bond calculation. |
|
|
A: |
Reimbursables and contingency
will not be subject to the performance bond.
|
|
71 |
Q: |
Please clarify whether the
financial proposal must also be submitted without identifying the
Bidders name on the submittal envelope. |
|
|
A: |
The Financial Proposal envelope
should be labeled as "FINANICAL PROPOSAL" without identifying the
bidders name. |
|
72 |
Q: |
Please clarify the potential
participation of firms who have previously been determined to have a
conflict of interest in future contracting opportunities for this
program. Can a Tenderer have an agreement in place prior to award of the
PPSC contract with a company that was deemed to have a conflict of
interest because the company and its employees worked on the Monitoring
and Assessment program that would obligate the tendering company to
award a subcontract to the conflicted company after award of the PPSC
contract? |
|
|
A: |
All companies that participated
in the M&A Program are excluded from the bid procedure and from
performance under the resulting contract. Therefore, the successful PPSC
bidder cannot employ the services of any company that performed M&A
services, however, PPSC bidders may subcontract services to an
individual who worked on the M&A projects provided that an individual is
working as an individual in his/her personal capacity and not for the
benefit of a company that worked on the M&A. |
|
73 |
Q: |
The UNCC awarded Kuwait claims
in US dollars. Would Kuwait NFP consider payment in US dollar if
requested by the successful bidder? |
|
|
A: |
No, all payments will be made in
Kuwaiti Dinars. However, there is no restriction on transfer of funds
abroad. |
|
74 |
Q: |
What other international airline
carriers are included on the approved list for transportation referred
to in Article 22 of the General Terms and Conditions? |
|
|
A: |
This information is available
from any Kuwait Airways Office. Local Representatives should be able to
obtain this information easily. |
|
75 |
Q: |
“This Final Insurance (generally
referred to as a Performance Bond) must be valid through the duration of
the execution of the Services Agreement (including any guarantee period
to ensure fulfillment of the Services Agreement).” This is inconsistent
with DSA, Article 5: Performance Bond, which mentions no guarantee
period. |
|
|
A: |
The General Terms and Conditions
(Document 2) is guidance, the DSA (Document 4) governs. Guarantee
period is 12 months. |
|
76 |
Q: |
Article 3.K Confirmation of
Milestone Completions and Payment (Document 4, Draft Service Agreement)
states that “…Payment will be made for completion of the Milestone in
accordance with the payment schedule in EXHIBIT A within 30 days of
Kuwait NFP’s receipt of each invoice that is subsequently approved….”
Invoices are subject to approval
prior to payment. Please confirm that it is only Kuwait NFP that is to
give such approval
|
|
|
A: |
Kuwait NFP confirms that it is
the only authority to give approval. |
|
77 |
Q: |
Article 3.N Advance Payment
(Document 4, Draft Service Agreement) states “…Kuwait NFP, at its
election, may draw under the Advance Payment Guarantee the amount of any
penalties or damages that are due from Consultant under this Agreement…”
The tenderer questions the need
to employ the Advance Payment Guarantee to recover damages when the
Consultant provides a Performance Bond for Kuwait NFP to secure the
performance of the Consultant’s obligations. Please confirm that Kuwait
NFP is prepared to discuss such terms prior to finalizing the Services
Agreement. |
|
|
A: |
Advance Performance Guarantee is
optional. |
|
78 |
Q: |
DSA Article 3.R (v) Final
Payment states “At the time of the final payment hereunder, as a
condition precedent to making such payment, Consultant shall submit to
Kuwait NFP…(v) a Tax Clearance Certificate from the Tax Control Office
of the Kuwait Ministry of Finance confirming that Consultant has
discharged its tax liability to the State of Kuwait, if any…”. Please
confirm that the Tax Clearance Certificate is only in relation to those
payments made prior to the final payment and for those services
performed within Kuwait. Please also confirm the need for the
additional obligation of providing a Tax Certificate prior to the
release of the final payment given that Kuwait NFP withholds 5% from
each approved payment until such time as it receives a Tax Clearance
Certificate under Article 3O.
|
|
|
A: |
All foreign companies are
subject to Kuwaiti Tax. Either 5% of every payment or 5% of the final
payment made to the PPSC Consultant will be withheld as per Kuwaiti tax
law as tax retention. The tax retention amount will be released by
Kuwait NFP upon the presentation by the PPSC to Kuwait NFP of a tax
clearance certificate issued by the Ministry of Finance. It is best to
engage the services of a tax consultant in Kuwait for advice on Kuwait
Tax Law.
|
|
79 |
Q: |
DSA Article 5: Performance Bond
states “…Kuwait NFP shall be entitled to reinstate the value of the
Performance Bond upon notice to the issuing bank…”. What is meant by
"…Kuwait NFP shall be entitled to reinstate the value of the Performance
Bond upon notice to the issuing bank…" and how is this to be achieved? |
|
|
A: |
Kuwait NFP will instruct bank to
fund the Performance Bond (PB) to its original value. Vendor has seven
days to reinstate the PB to its original value. If Vendor fails to
reinstate then the short fall in the PB will be made up using the fixed
price funds. |
|
|
Q: |
DSA Article 7 (k):
Representation and Warranties of Consultant states
“Consultant shall maintain its
work area in a neat and orderly condition, stockpiling, covering and
otherwise protecting materials, routinely collecting and removing debris
and waste materials and maintaining control of dust, trash, weeds,
insects, rodents and other sources of potential injury and damage.”.
Please confirm that the requirements of Article 7(k) are relevant to the
Services Agreement. |
|
|
A: |
General upkeep of premises is
expected. |
|
80 |
Q: |
Article 12 (a) (i): Insurance
states
“Consultant’s pollution
liability insurance with a minimum coverage of [KWD__________] per
occurrence.”
Please confirm that the
procurement of such cover is subject to market availability.
Article 12 (a) (iii): Insurance
states
“The policy shall include
coverage for bodily injury, broad form property damage liability
(including completed operations), personal injury liability, blanket
contractual, contractor/consultant’s protective and products and
completed operations; further, the policy shall include coverage for the
hazards commonly referred to as XCU.”
Some of these coverage terms are
no longer used in the insurance industry (e.g., broad form property
damage, and contractor/consultant’s protective). Please provide
alternate wording for coverage terms that have changed. |
|
|
A: |
PPSC must use best efforts to
obtain equivalent terms. |
|
81 |
Q: |
DSA Article 13: Special Risks
states
“Consultant acknowledges that…
(a) The provision of the Services may require the exposure of the
employee… to certain special risks, such as the requirement to enter
into areas that contain land mines, unexploded ordnance or other
explosives of war, and toxic and corrosive chemicals and other
substances… (c) The coverage under the insurance that Consultant has
obtained pursuant to this Agreement includes injury or death resulting,
directly or indirectly, from activities of the employees, agents or
other representatives of Consultant notwithstanding the aforementioned
special risks… (d) No event or circumstance arising out of the
aforementioned special risks may constitute an event of force majeure or
otherwise provide Consultant with any justification for, or defense with
respect to, any delay or suspension of, or withdrawal from, the
performance of the Services by Consultant, or otherwise entitle
Consultant or its employees, agents or other representatives to
indemnification or compensation as a result of any damages caused by
such event or circumstance”.
What risk an assessment has
Kuwait NFP completed in relation to such special risks?
In the event that risk
assessments have been completed are these available to the Consultant
for evaluation of risk purposes? Are special risks matters that will be
finalized during contract negotiations? |
|
|
A: |
No formal assessments of special
risks are available. |
|
82 |
Q: |
EXHIBIT B: Form of Advance
Payment Guarantee in the Draft Service Agreement states “…WE UNDERTAKE
TO PAY YOU UP TO THIS AMOUNT UPON YOUR FIRST WRITTEN DEMAND AND DESPITE
ANY CONTESTATION ON THE PART OF…” Please confirm that the Bond is
required under the agreement to provide Kuwait NFP with security in the
event that the Consultant fails to fulfill its obligations towards
Kuwait NFP in respect of the repayment of the Advance Payment. In the
event that the Bond is not required for this purpose please clarify its
purpose. |
|
|
A: |
Advance Payment Guarantee is
optional. The sample form has been provided for those entities wishing
to exercise this option. |
|
83 |
Q: |
EXHIBIT B: Form of Performance
Guarantee of the Draft Service Agreement
“…WE UNDERTAKE TO PAY YOU UP TO
THIS AMOUNT UPON YOUR FIRST WRITTEN DEMAND AND DESPITE ANY CONTESTATION
ON THE PART OF…”. Please confirm that the Guarantee is required under
the agreement to provide NFP with security in the event that the
Consultant fails to perform its obligations under the agreement in
respect of the services to be provided? In the event that the
Guarantee is not required for this purpose please clarify its purpose? |
|
|
A: |
Performance Guarantee is
required under the PPSC consultancy agreement to provide Kuwait NFP with
security in the event that the Consultant fails to perform its
obligations under the agreement in respect of the services
provided.
|
|
LEGAL |
|
84 |
Q: |
There are no limits of Liability
Clauses in the Terms and Conditions section of the RFP. Would the
contractor be liable for losses for our performance as opposed to
negligent performances as well? Is the contractor expected to be liable
for unlimited losses? Would the contractor also be expected to hold
Kuwait NFP harmless for anything they might do/cause? |
|
|
A: |
Consequential damages will not
exceed the annual budget. Under Article 11 of the General Terms and
Conditions, Kuwaiti law requires that the Vendor be responsible for
indemnification relating to claims arising against Kuwait for
performance of the contract not just for the negligent performance. In
our experience, it is very unlikely that a claim will be lodged against
the State of Kuwait by a third party (refer also to Document 4 Draft
Services Agreement, Page 14, Article 11, 15 (i)). |
|
85 |
Q: |
Please confirm whether or not
the limitation of liability for breach in Article 15.I of the DSA is
meant to apply to the Consultant’s liability under Article 3M of the
DSA. |
|
|
A: |
Yes for breaches. |
|
86 |
Q: |
Article 15.C: Effect of Notice
states
“Termination of this
Agreement…Kuwait NFP shall be entitled to recover the full amount
covered by the Performance Bond. The recovery of any amounts from the
Performance Bond shall not prejudice the rights of Kuwait NFP to take
whatever action it may deem necessary or appropriate to obtain
satisfaction of amounts due to Kuwait NFP.” Please confirm whether or
not the limitation of liability under Article 15I is meant to apply to
the Consultant’s liability under Article 15C.
|
|
|
A: |
Yes. |
|
87 |
Q: |
DSA- Article 15.I: Consequential
Damages states
“…The parties agree that the
damages that shall be available to Kuwait NFP in the event of a breach
of this Agreement by Consultant shall include consequential damages
equal to the amount of the awards of the Kuwait Environmental Claims
that are lost by the State of Kuwait as a result of the breach of this
Agreement by Consultant; provided, however, that the damages shall not
in any event exceed the full amount payable hereunder to Consultant as
the Contract Price.”
From a business perspective it
is difficult for any consultant to accept liability for consequential
losses when supporting a client in a contentious matter. Please confirm
whether liability for consequential losses is a matter that is to be
discussed further during contract negotiation. |
|
|
A: |
No. Liability for consequential
damages apply. |
|
88 |
Q: |
DSA Article 3.R (i) Final
Payment states “…At the time of the final payment hereunder, as a
condition precedent to making such payment, Consultant shall submit to
Kuwait NFP…(i) an indemnity and release of Kuwait NFP by Consultant and
any assignee or subcontractor of Consultant whose assignment or
sub-contract is then in effect, from all and any claims arising under or
by virtue of this Agreement save such claims, if any, (1) as may with
the consent of Kuwait NFP be specifically excepted from the operation of
the indemnity and release in stated amounts to be set forth therein or”
What does ‘as may with the
consent of Kuwait NFP be specifically excepted from the operation of the
indemnity and release in stated amounts to be set forth therein…’ mean?
|
|
|
A: |
Kuwait NFP can waive its right
to indemnity. |
|
89 |
Q: |
DSA Article 3.R (i) Final
Payment states “At the time of the final payment hereunder, as a
condition precedent to making such payment, Consultant shall submit to
Kuwait NFP… (2) which are directly and solely attributable to the
negligence of Kuwait NFP”
Is it the intention of Kuwait
NFP to release itself from liability to third parties in the event of
contributory negligence?
Is liability of the Consultant
under the Services Agreement a matter that shall be finalised during
contract negotiation? |
|
|
A: |
Kuwait NFP will make final
payment to PPSC if it receives an indemnity that covers losses except
for Kuwait NFP's negligence. |
|
90 |
Q: |
Are all entities, firms and
consortiums along with its members required to be registered with the
Ministry of Commerce of the State of Kuwait? |
|
|
A: |
Yes all foreign entities are
required to register. Bidders should seek assistance for their local
representatives with registration formalities with the Ministry of
Commerce. |
|
91 |
Q: |
General Terms and Conditions
(GTC) Article 9.2.b: Acceptance of Offer (Document 2_ states “In all
cases, the successful Tendered shall be obligated to compensate Kuwait
NFP for any damages resulting from the cancellation of the Services
Agreement, re-tendering or awarding the Tender to another Tenderer with
a higher price". What are the damages to which Tenderers would be
subject in addition to the forfeiture of the Preliminary Insurance
specified in Article 7? |
|
|
A: |
In practice it is only the
forfeiture of the Preliminary Insurance. |
|
92 |
Q: |
Would the Kuwait NFP please
consider changing the requirement wording in Document 3 Request for
Proposal and Terms of Reference (RFP/ToR) Section F.2.q. from “beyond
the control and best efforts of the PPSC” to “beyond the control and
professional efforts of the PPSC”? |
|
|
A: |
No the wording cannot be
changed. However, in evaluating the Vendor’s best efforts Kuwait NFP
would expect the efforts to be professional. |
|
93 |
Q: |
Request for Proposal and Terms
of Reference RFP/ToR (Document 3): “In addition to receipt of
liquidated damages, Kuwait NFP reserves all rights it has at law to seek
the payment of additional damages from the PPSC and to consider such
delay in performance to be a breach of this contract.” What are possible
additional damages? |
|
|
A: |
Wherever damages exceed the
liquidated amount, the PPSC could be liable an example is the PPSC’s
delay in preparing an FC TOR could result in an increased cost in the
FC’s work. |
|
94 |
Q: |
If the Services Agreement is
required to be signed in both Arabic and English, which version will
prevail? |
|
|
A: |
Pursuant to the Kuwaiti
contractual rules and regulations governing Government contracts the
Arabic version of the Services Agreement will prevail. |
|
95 |
Q: |
Please clarify the financial
penalty in Article 13 of GTC which appears to be unrelated to the work
location. |
|
|
A: |
Under Kuwait contract rules,
certain contract provisions must be considered in development of all
contracts concluded with government institutions of Kuwait. GTC
provides the guidelines that are to be considered in developing the
contract with the selected PPSC. Kuwait NFP has provided it to you for
your background information. The specific legal obligations that the
PPSC and Kuwait NFP will be under are reflected in DSA. |
|
96 |
Q: |
DSA Article 16 (c) states,
“Regardless of what intra-consortium agreement exist, each member
company of the consortium is jointly and severally liable to fulfill all
obligations of the Consultant under this Agreement.” This article
effectively dismisses the internal structure of the team’s legal
agreements. Since the contract is with a legal entity (the Consortium),
and member companies have been asked to join the consortium for their
specific expertise which they bring to the benefit of the program,
requiring joint and several liability of each consortium member is an
unacceptable condition to specialized members. Will the KNFP remove
this section of the article? |
|
|
A: |
No, Kuwait NFP is not going to
remove it now, however, Kuwait NFP will consider during the contract
negotiation to allow one or more members of a consortium to assume the
liabilities of the entire consortium provided the financial strength of
that member or members has been adequately demonstrated in response to
Section E.2.b, which is at Document 3-47 (RFP/ToR). |
|
97 |
Q: |
Article 19 of GTC provides the
Kuwait NFP the opportunity to deduct, without notice or recourse, from
the PPSC Final Insurance amounts that may be due to Kuwait NFP or any
Ministry of Government Entity. Will the Kuwait NFP consider withdrawing
this clause? |
|
|
A:
|
No. This is a Kuwaiti government
requirement governing contracts signed with a Kuwaiti government entity. |
|
98 |
Q: |
Article 3.B Agreement Term of
GTC “…If extended, the PPSC is obligated to continue to provide Services
for the extended period of up to three years until the Services are
completed under the same terms and conditions as apply during the base
five-year period, and for the same Fixed Price…”
With respect to the extension of
the service period beyond 5 years, in the event that such extension is
necessary because of an act of prevention by others, will Kuwait NFP and
the Consultant agree a mechanism in the final version of the Services
Agreement for the payment of additional costs to the Consultant under
the Fixed Fee for the financial impact of such acts of prevention? |
|
|
A: |
Kuwait NFP has the right to
extend the contract term to 8 years if necessary to complete the KERP. |
|
99 |
Q: |
Please confirm whether or not a
third party is to be appointed to determine liability for delay. |
|
|
A: |
No a third party will not be
appointed. |
|
100 |
Q: |
Please confirm whether or not
the application of penalties is a matter for agreement under the final
version of the Services Agreement. |
|
|
A: |
No. It is not subject to
agreement, but penalties would be imposed in only the very extreme
cases. |
|
101 |
Q: |
Article 3.P (iv) Payments
Withheld of the DSA states “…Any amounts otherwise payable to Consultant
hereunder may be withheld in whole or in part by Kuwait NFP if:…" in
the event that the UNCC prohibits Kuwait NFP from disbursing funds to
the Consultant due to the failure of Consultant to follow the
requirements of Decision 258 or for other authorized reasons.” What are
‘other authorized reasons’ that would entitle Kuwait NFP from
withholding payments to the Consultant? |
|
|
A: |
For example a court order. |
|
102 |
Q: |
Article 7 (a): Representation
and Warranties of Consultant of the DSA states “Provided Consultant
performs as aforesaid, it may exercise full independence in reaching its
professional conclusions.” What is meant by ‘provided Consultant
performs as aforesaid, it may exercise full independence in reaching its
professional conclusions’? The Consultant asks this question because of
course deliverables are subject to approval. |
|
|
A: |
The PPSC's professional judgment
will be respected. |
|
103 |
Q: |
Article 11: Indemnity and Hold
Harmless of the DSA states “Consultant agrees to indemnify, hold
harmless and defend Kuwait NFP and the State of Kuwait, and all and any
of their respective representatives (the “Indemnitees”) for, from and
against any and all liabilities, claims, penalties, forfeitures, suits,
and the costs and expenses incident thereto (including, without
limitation, reasonable attorneys’ fees and court costs), which the
Indemnitees may hereinafter incur, become responsible for, or pay out as
a result of, death or bodily injury to any person, destruction or damage
to any property, contamination of or adverse effects on the environment,
or any violation of any governmental laws, regulations or orders to the
extent caused by : (i) the performance of Services by the employees,
agents and subcontractors of Consultant hereunder; (ii) breach of any
term of this Agreement by Consultant; (iii) the failure of any warranty
of Consultant to be true, accurate and complete; or (iv) any negligent
or willful act or omission of Consultant or its employees, agents or
subcontractors.”
What insurance does Kuwait NFP
propose putting in place to cover its own liability?
|
|
|
A: |
Government of Kuwait stands
behind Kuwait NFP.
|
|
104 |
Q: |
Given the nature of the project,
please confirm that in contract negotiations, the liability of the
Consultant for losses arising out of existing contamination and adverse
effects on the environment shall be excluded.
|
|
|
A: |
Vendor will not be liable for
existing contamination and adverse effects on the environment.
|
|
105 |
Q: |
Article 15.B: Termination With
10-Day Notice for Cause of the DSA states “In the event that Consultant…
in the sole discretion of Kuwait NFP, it shall not be possible for
Consultant to complete the Services in accordance with this Agreement…”
From a business perspective it
is difficult for any consultant to accept an appointment where an
employer has the ‘sole discretion’ to terminate for cause. Please
confirm that the final drafting for this provision shall be agreed in
during the period of contract negotiation. |
|
|
A: |
No. Kuwait NFP cannot agree to
such a request. |
|
PRICING |
|
106 |
Q: |
According to Articles 9.1 and
9.2 of the GTC it appears that Kuwait NFP will be driven to make a
selection based on lowest price, as long as the Tenderer submits an
acceptable technical proposal. On the other hand, Section G.7 of the
RFP and ToR states that “Technical quality will be the primary factor
for award; however, the proposed price will be used as a further basis
for differentiating among technically superior proposals.” Please
confirm that Kuwait NFP will value technically superior proposals more
than price. Please clarify how the agency will balance technical
evaluations compared to price. |
|
|
A: |
The General Terms and Conditions
provide general guidelines, the more specific language of the RFP,
however, RFP/ToR Section G.7 pages 3-64 (Document 3) will govern. Only
outstanding technical proposals will be considered for selection
regardless of price. Entities, Firms and Consortium having high
technical scores will have their financial proposals evaluated and price
will then be considered. |
|
107 |
Q: |
Article 15: Professional Fees &
Expenses of the Draft Services of Agreement states “The successful
Tenderer will be eligible for monetary payments, as work progresses, at
the end of each month and after Kuwait NFP approves the work progress
and the submitted invoices.” This statement is in conflict with Item
F.2.h of the RFP/ToR. which indicates payment based on milestones: “A
payment schedule based on completion of deliverable milestones will also
be agreed upon, and it will identify the amount that will be paid when a
milestone is completed.” Which version is correct? |
|
|
A: |
The General Terms and Conditions
provide general guidelines, the more specific language of the RFP and
ToR (Document 3) will govern. Milestones can be set on a monthly basis
for general services and at also at dates when certain tasks and
sub-tasks are completed. |
|
108 |
Q: |
If the unforeseen and changed
conditions, or inaccurate information necessitates a change in the scope
of work, or as explained before causes a redesign of a field
demonstration project, will the PPSC’s extra costs be paid for out of
the contingency? |
|
|
A: |
Yes, if the first design was
approved by Kuwait NFP and it failed due to no fault of the PPSC. |
|
109 |
Q: |
What is the remedy if the yearly
budget negotiated for the work to be accomplished does not leave
suitable funds to adequately manage the program in a later year? Under
what conditions will the NFP adjust the yearly budget? |
|
|
A: |
If the adjustments are for
in-scope work, the PPSC must complete the entire KERP for its fixed
price. If the adjustments are for out-of-scope work, the contingency
funds will be used. |
|
110 |
Q: |
How will issues not under the
control of the PPSC be handled for schedule issues such as weather
conditions, performance delays by the Field Contractors, excessive
review and comments by the Independent Reviews, lack of agreement on
completion criteria, etc.? How would these issues affect liquidated
damages? |
|
|
A: |
Milestones should be tied to
completion of work that the PPSC can itself conduct. |
|
111 |
Q: |
What recourse or options are
available to the PPSC to recover unexpected costs if NFP modifies the
Services Agreement including any element of the 12-month scope of work,
budget, deliverables, deliverables milestones and payment schedule? |
|
|
A: |
Kuwait NFP will use the
contingency for unexpected costs that result from work that is not
within the scope of the RFP or the Vendors proposal or where redesign of
an approved but failed field demonstration is required due to no fault
of the PPSC. |
|
112 |
Q: |
Additionally, what recourse is
available to the PPSC to request contract or scope changes based on
changed conditions? |
|
|
A: |
Same as response above. The
PPSC should anticipate that conditions may change and should account for
that in its Bid. |
|
113 |
Q: |
Section G.13.b (No Commitment)
of the RFP and ToR states that “Kuwait NFP reserves the right at its
sole discretion to… add new considerations, information or requirements
at any stage of the procurement process, including during the
negotiations with Vendors.” If Kuwait NFP decides to add “new
considerations” or “requirements” during the negotiations with Vendors,
will it allow all Vendors to alter their proposals, including their
proposed price? |
|
|
A: |
Changes will not be made that
would require an increase in the fixed price. |
|
114 |
Q: |
Please confirm that, regardless
of the estimate for unknown reimbursable, PPSC will not be liable for
that cost. |
|
|
A: |
Kuwait NFP confirms that Vendor
will not be liable for the cost of the reimbursable expenses identified
in the RFP and ToR. |
|
115 |
Q: |
If a force majeure delay results
in additional time or work by the PPSC, how would the resultant
additional costs be compensated? |
|
|
A: |
If delay suspends work there
will be a time extension. If force majeure event causes additional work
to be conducted, the resulting cost will be covered by the contingency. |
|
116 |
Q: |
Section F.2.b. (Page 3-52) of
the RFP and ToR states, “The PPSC will be obligated to continue
providing services for up to the three one-year renewal periods until
the services required to be performed under this RFP are completed under
the same terms and conditions as apply during the base five-year period,
and subject to the same fixed price,...” As stated, the PPSC is
obligated to perform over an 8 year rather than a 5 year contract base.
There are items not under the control of the PPSC, such as access to KOC
property or availability of UNCC or Kuwait Government funds that have
potential to cause cleanup program to exceed the 5 year contract
period, requiring the PPSC to operate for 8 years without any additional
compensation. What is the mechanism for vendors to price these
contingencies for the option years? |
|
|
A: |
The PPSC must bid for all of the
scope of work to be completed within five years. However, should there
be delays in start of certain deliverables within the first five years
due to which the operations have to be continued into years six (6),
seven (7) and eight (8), the PPSC will only be entitled to receive the
inflationary risk adjustment for the extended years Nos. 6, 7, and 8
because the actual costs of the deliverables in question would have been
already covered under the first five years (Years 1 through 5).
The PPSC should anticipate this
mechanism in its bid and cover any extra costs within its financial
proposal. Although the contact period may be extended for up to eight
(8) years, if the work is actually performed within 5 years, then the
program would be over. |
|
117 |
Q: |
Section F.2.k. (page 3-58) of
the RFP and ToR states “Any funds left over from the 12-month period
just ended will be allocated for use in the next or some future 12-month
period.” We understand that the specified tasks are to be performed on a
fixed price basis. Is it correct to assume that re-allocation of funds
can only occur as a result of a scope change requested by the Kuwait
NFP? |
|
|
A: |
The quoted section is intended
to deal with a situation of money left over for work not yet done at the
end of the 12 month period. The balance will be moved to the following
year’s budget or some other future year budget. |
|
118 |
Q: |
Please explain the rational for
why damages and penalties for schedule delays are included for the PPSC
when it doesn’t have direct control of the execution. |
|
|
A: |
The PPSC's milestones should be
tied to what it can complete. |
|
119 |
Q: |
The terms and conditions for
this contract as written place the majority of the risk on the PPSC
contractor with little or no upside potential routinely offered by a
standard fixed price contract. Can we be assured that the Kuwait NFP
will modify the terms and conditions, prior to the tender due neither
date, where the Vendor can demonstrate that they are not being asked to
assume contractual risks which they are neither bound nor are
contractually responsible for? |
|
|
A: |
The RFP and ToR will not be
modified. There is upside for the PPSC under the fixed price component. |
|
120 |
Q: |
Paragraph F.2.l of the RFP and
ToR states that the PPSC will invoice Kuwait NFP after deliverable
milestones have been certified as completed. Article 15 of the General
Terms and Conditions state that the successful contractor will be
eligible for progress payments on a monthly basis. Will the contractor
be eligible to invoice the Kuwait NFP on a monthly basis for work
performed and paid for approved invoices within 30 days? |
|
|
A: |
Yes, if we agree to monthly
milestones, payments could occur on a monthly basis. |
|
121
|
Q: |
Paragraph F.2.n of the RFP and
ToR can be interpreted, along with other language in the tender
documents, to mean that the PPSC contractor cannot submit and be paid
for any changes to its fixed-price contract out of all unforeseen
conditions, outdated, or inaccurate information provide to the PPSC
contractor. Under what conditions can the contractor be compensated for
unforeseen or changed conditions, or inaccurate information provided by
the Kuwait NFP? |
|
|
A: |
If the unforeseen and changed
conditions or inaccurate information necessitates the out-of-scope work
to be conducted or causes a redesign of a field demonstration project,
the PPSC’s extra costs will be paid for out of the contingency. |
|
122 |
Q: |
Article 3.C Inflation
Adjustment of the RFP and ToR states “Kuwait NFP will provide for an
inflation adjustment such that Kuwait NFP will increase the budget in
year six by ___ percent, in year seven by ___ percent, and in year eight
by ___ percent.”
What is meant by the ‘budget’?
(See Document 4, Article 3(g)and(i)). Under the Draft Services
Agreement ‘Budget’ is a defined term and is stated as being the ‘budget
and payment terms’. Please confirm that the Fixed Price shall also be
subject to Inflation Adjustment under Article 3C. |
|
|
A: |
The Vendor should estimate the
KD effect of the inflation adjustment in years 6,7, and 8. If the
actual effect is greater due to more work having to be done in year 6,7,
or 8 than anticipated, the additional payment would come out of the
contingency. |
|
123 |
Q: |
Article 3.M Penalties for Delay
of the RFP and ToR states that “Upon the PPSC’s failure to meet the
identified delivery date for any Deliverable, and except to the extent
such failure is due to the Kuwait NFP’s actions or omissions or to
circumstances beyond the control and best efforts of the PPSC, Kuwait
NFP will be entitled to deduct liquidated damages from future payments
to the PPSC. The liquidated damages will be calculated as 0.3% of the
budget for the Deliverable during the then-current 12-month period per
day for every day of delay of the Deliverable with a maximum of 20 % of
the 12-month budget for the Deliverable. In addition to receipt of
liquidated damages, Kuwait NFP reserves all rights it has at law to seek
the payment of additional damages from the PPSC and to consider such
delay in performance to be a breach of this Agreement.”
Please confirm that the
application of Article 3M is subject at all times to the relief from
penalties provided for at Article 2B in relation to IRC and/or UNCC
objections. |
|
|
A: |
Milestones should not be tied to
UNCC or IR approvals. |
|
124 |
Q: |
Please confirm what is meant by
‘budget’. |
|
|
A: |
The annual budget is the amount
agreed to each year under Exhibit A to the DSA. |
|
125 |
Q: |
Article 7 (g): Representation
and Warranties of Consultant of the DSA states “…Consultant shall comply
with all requirements of the UNCC, which are duly communicated to
Consultant by Kuwait NFP, for the performance of the Services as such
requirements relate to the “F4” Follow-up Programme.” In the event that
the UNCC issues requirements under Article 7(g) that prevent the
Consultant from meeting the Milestones under the DSA, please confirm
that the Consultant shall be entitled to an extension of this Milestones
and additional costs in relation to completing any additional work |
|
|
A: |
Milestones should not be tied to
UNCC approvals. |
|
126 |
Q: |
If it is found necessary to deal
with unfunded claims, will the cost be covered by Kuwaiti Government or
15% contingency? |
|
|
A: |
Kuwait NFP will identify
alternative funding source. The 15% contingency comes from the UNCC
awards, so it cannot be used for unfunded claims. |
|
127 |
Q: |
Will Kuwait NFP consider a more
standard fixed-priced contract provision, leaving the lump-sum portion
of the contract fixed? |
|
|
A: |
The Vendor must bid on the
project using the financial structure set forth in the RFP and ToR. If
the Vendor, in addition, desires to propose an alternative financial
approach, it may do so, but it should also bid on the structure in the
RFP and ToR. |
|
128 |
Q: |
For the contract year six (6),
seven (7) and eight (8) will Kuwait NFP agree to separate and distinct
inflation adjustments for work in Kuwait and for work in the United
States? |
|
|
A: |
Vendor is free to propose
whatever inflation adjustment factor it wishes during the years six,
seven and eight. |
|
129 |
Q: |
We understand that prices are
fixed during the 5 year periods, and inflation adjustments will be
applied only for year 5, 6, 7 and 8. Could a variable price (including
potential inflation rate) be considered during the initial 5 years as
well? |
|
|
A: |
No. All inflationary factor
should be built in within the quoted price for services during years
1-5. |
|
130 |
Q: |
PPSC is obligated to perform
over an 8 year rather than a 5 year contract base. There are items not
under the control of the PPSC, such as access to KOC property or
availability of UNCC or Kuwait Government funds that have potential to
cause cleanup program to exceed the 5 year contract period, requiring
the PPSC to operate for 8 years without any additional compensation.
What is the mechanism for vendors to price these contingencies for the
option years? |
|
|
A: |
The PPSC must bid for all of the
scope of work to be completed within five years. However, should there
be delays in start of certain deliverables within the first five years
due to which the operations have to be continued into years six (6),
seven (7) and eight (8), the PPSC will only be entitled to receive the
inflationary risk adjustment for the extended years Nos. 6, 7, and 8
because the actual costs of the deliverables in question would have been
already covered under the first five years (Years 1 through 5).
The PPSC should anticipate this
mechanism in its bid and cover any extra costs within its financial
proposal. Although the contact period may be extended for up to eight
(8) years, if the work is actually performed within 5 years, then the
program would be over. |
|
131 |
Q: |
Since PPSC will not hold
contracts for sub-contractors, how can PPSC be penalized for contractor
delay? |
|
|
A: |
Vendor will hold contracts for
the field demonstration contractor and therefore the PPSC could be
penalized for their delay. Vendor will not hold contracts for the field
contractors, and the PPSC milestones should not be tied to field
contractor completion. |
|
132 |
Q: |
“The vendor should explain in
its Technical proposal the expected scope and methodologies for
additional information gathering, if it believes any is needed. The
vendor should include in its financial proposal the expected cost of
such additional information gathering ”. Such a task is very difficult
to assess at this stage as it is acknowledged by the RFP and ToR
(Section E- reimbursables), together with other tasks defined under
reimbursable, such as the cost of third parties conducting field
demonstrations, or operation of the NERD/EDMRAS. In this respect, it
will be difficult as well to compare proposals based on different scopes
of additional activities and costs. Would it be possible to exclude such
additional costs from the proposals? |
|
|
A: |
We recognize that it is
difficult to predict the exact amount for the additional information
gathering, however, since the existing data has been provided on CD by
Kuwait NFP, the PPSC is required to utilize their best judgment and
experiences as to the extent of data gaps that will need to be filled. |
|
133 |
Q: |
Paragraph F.2.j of the RFP and
ToR states that the Kuwait NFP, at its sole discretion, can change the
scope of work, after the approved scope of work and milestones, and
after discussions with the PPSC. What recourse does the PPSC have if
they disagree with the Kuwait NFP that the change in the scope of work
will result in additional costs to the PPSC? |
|
|
A: |
We would expect this discussion
to be cooperative and lead to a mutually agreeable result. |
|
134 |
Q: |
Paragraph F.2.k of the RFP and
ToR states that if payments to the PPSC contactor are less than the
fixed price at the end of the contract that the PPSC will be paid 20% of
remainder (cost savings) less penalties. If this is the case, then the
PPSC fixed price contract is not fixed, but only not to be exceeded.
This is an inequitable risk and reward balance between the PPSC and the
Kuwait NFP. Will Kuwait NFP consider a more equitable arrangement for
both parties where the costs exceeding the fixed price will be shared in
the same fashion as the cost savings will be shared? Or eliminate this
sharing of the cost savings all together? |
|
|
A: |
The purpose of the 20% limit on
the cost savings is to address a situation where the projects are
completed yet the PPSC has provided minimal services. It would be
inequitable for the PPSC to be awarded the entire cost savings for its
limited performance. Kuwait NFP’s objective is to have the PPSC perform
its services fully and not hold back in an effort to reap all or a large
portion of the cost of savings. |
|
135 |
Q:
|
Is it correct that Contract
Price is Fixed Price + Reimbursable + 15% contingency? Or Is it correct
that Contract Price is just the Fixed Price + Reimbursable.
|
|
|
A:
|
The contract price that the
Vendor will bid is the fixed price plus the reimbursable plus 15%
contingency. |
|
136 |
Q: |
Article 3.K Confirmation of
Milestone Completions and Payment of the DSA states
“…Payment will be made for
completion of the Milestone in accordance with the payment schedule in
EXHIBIT A within 30 days of Kuwait NFP’s receipt of each invoice that is
subsequently approved….” Invoices are subject to approval prior to
payment. Please confirm that it is only Kuwait NFP that is to give such
approval. |
|
|
A: |
Only Kuwait NFP will approve
invoices.
|
|
137 |
Q: |
Article 7 (e): Representation
and Warranties of Consultant of the DSA states
“…Consultant shall best efforts
to obtain all licenses, permits, consents or approvals that are
necessary to secure access to the relevant property for purposes of
fulfilling obligations of Consultant under this Agreement…” . From a
perspective of authority is it practical to expect the Consultant to
have the authority to secure access to site?
In the event that access is
denied for reasons beyond the control of the Consultant please confirm
that the Milestones under Document 4-29 shall be extended accordingly. |
|
|
A: |
PPSC must use best efforts.
Milestones should not be tied to access. |
|
138 |
Q: |
How closely should the relative
costs of the environmental remediation projects track the amount of the
UNCC awards? Will the NFP/ PPSC have the freedom to allocate financial
resources where they will produce the most environmental results, even
if this proportionally differs from the UNCC awards? |
|
|
A: |
The PPSC should recommend an
allocation of funds that is most cost effective and provide a
justification for same. If Kuwait NFP agrees, Kuwait NFP and the PPSC
will discuss the allocation with the IRs/IRC and the UNCC and obtain
necessary approvals to re-allocate UNCC awarded funds. |
|
139 |
Q: |
If Vendor proposes other
technologies, could there be compensation penalties? What
recourse is available to the
Vendor if proposed technologies are not effective and the claim amount
is insufficient?
|
|
|
A: |
The PPSC should use its best
judgment in proposing technologies. The PPSC's compensation will not be
withheld if it uses best efforts that result in ineffective
technologies. |
|
140 |
Q: |
Which is more important in
selection of remedial methods: price or effectiveness? |
|
|
A: |
Effectiveness is more important
in selection of remedial methods, however, the effective remedial
methods should also be cost effective. |
|
141 |
Q: |
What timing for FC contract
execution should be considered when estimating when the PPSC's
supervision work will begin? |
|
|
A: |
Irrespective of whether OEFC
contracting falls under the CTC or not, it is Kuwait NFP's
responsibility to make sure that once the RFP and ToR is completed, OEFC
will initiate contracting procedure within a reasonable period of time.
Since these procedures usually take from 6-9 months. Vendors must take
this period into consideration before the supervision phase commences. |
|
142 |
Q: |
Section E.1 of the RFP/ToR
allows a Vendor to seek NFP approval to submit a financial submission
structure, which differs from that specified in Section F of the RFP/ToR.
Has a Vendor sought such
approval?
If Kuwait NFP approves an
alternative financial submission structure, will other Vendors be
notified of the alternative structure?
If an alternative financial
submission is accepted will the Vendor also have to submit a financial
proposal that complies with Section F of the RFP/ToR.
|
|
|
A: |
No alternatives have been
proposed so far and the deadline for proposal is tomorrow, so none is
likely. If one is proposed and approved, it will be identified on the
website. |
