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Transcript of Contract Award, Performance, and Administration. Award of Contract Contract Documents Documents...
Contract Award, Performance, and Administration
Award of Contract Contract Documents
Documents should clearly define:
THE SCOPE OF WORK TO BE PERFORMED
THE GOODS TO BE SUPPLIED THE RIGHTS AND OBLIGATIONS OF
THE PURCHASER AND OF THE CONTRACTOR OF SUPPLIER AND
Award of Contract Contract Documents (cont’d)
IN ADDITION TO THE GENERAL CONDITIONS OF CONTRACT ANY SPECIAL CONDITIONS APPROPRIATE TO THE NATURE AND LOCATION OF THE PROJECT SHOULD BE INCLUDED
CONTRACTS FORTHE INTERNATIONAL SALE OF
GOODS SHOULDBE PREPARED ON THE BASIS OF
EQUALITY ANDMUTUAL BENEFIT
Contract Definition
A CONTRACT ISAN AGREEMENT BETWEEN
TWO OR MORE PARTIES WHEREBYEACH PARTY PROMISES TO DO,OR NOT DO DO, SOMETHING:A TRANSACTION INVOLVING
TWO OR MORE INDIVIDUALS,WHEREBY EACH HAS
RECIPROCAL RIGHTS TODEMAND PERFORMANCE OF
WHAT IS PROMISED
(Friedman, Jack. P.,Dictionary of Business terms, page 123)
CONTRACT
AGREE TO TERMS,HAVE THE RIGHT TO
DEMAND PERFORMANCE
MORE IMPORTANT
THIS PROMISE TO DO OR NOT TO DO SOMETHING IS ENFORCEABLE BY LAW AND INCORPORATES REMEDIAL
RIGHTS FOR NON PERFORMANCE
SELLER
BUYER
Applicable Law
A CONTRACT COMES INTOBEING WHEN
THE PARTIES HAVE REACHED AGREEMENT ON
ALL ESSENTIAL POINTS INTHE FORM REQUIRED
BY THE APPLICABLE LAW
Applicable Law (cont’d)
WORLD BANKSTANDARD DOCUMENTS
A CONTRACT WILL BE INTERPRETEDIN ACCORDANCE WITH THE LAWS OF THE PURCHASERS COUNTRY
UNTIL A FORMAL CONTRACTIS SIGNED, THE BIDDER’S OFFER TOGETHER WITH THE NOTIFICATION OF AWARD WILL CONSTITUTEA BINDING CONTRACT
Contract Format
CONTRACT FORM
BID FORM
PRICE SCHEDULE
SCHEDULE OF REQUIREMENTS
TECHNICAL SPECIFICATIONS
Contract Format (cont’d)
GENERAL CONDITIONSOF CONTRACT
SPECIAL CONDITIONSOF CONTRACT
AMENDMENTS TO THEBIDDING DOCUMENTS, IF ANY
PURCHASERNOTIFICATION OF AWARD
Preparation of Contract
EACH CONTRACT IS UNIQUE
BUYER AND SELLER MUST AGREE
PREPARE ON THE BASIS OF EQUALITY AND MUTUAL BENEFIT
PREPARE IN LINE WITHTHE APPLICABLE LAW
Preparationof Contract (cont’d)
AVOID CONFUSION ANDLEGAL GAPS
(by adhering to standard documents, such as those included in the World Bank’sSample Bidding Documents)
MAKE SURE YOU KNOW YOUR CONTRACT
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Contract Performance and Administration
Contract Performance and Administration
• Contracts for Goods/Equipment– INCOTERMS– Use of Letter of Credit
• Contracts for Works– Securities
• Common Problems
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Contracts for Goods/Equipment• Performance Security• Payment Terms• Pre-Shipment Inspection (Compliance with Specifications,
with Bid)• Understanding Delivery terms• Liquidated (Delay) Damages• Receipts• Stores (Accounting for Goods received/dispatched)• Warranty Obligations
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Contracts for Goods/Equipment
• Contract changes/amendments are exceptional (and should be subject to Bank review)
• Litigation relatively rarely (Dispute settlement by arbitration if amicable settlement fails)
• Any amicable settlement should be subject to Bank review
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INCOTERMS 2000
• GROUP E: DEPARTURE– EXW: EX WORKS (…named place)
• GROUP F: MAIN CARRIAGE UNPAID– FCA: FREE CARRIER (…named place)– FAS: FREE ALONGSIDE SHIP (…named port of
shipment)– FOB: FREE ON BOARD (...named port of
shipment)
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INCOTERMS 2000 cont.
• GROUP C: MAIN CARRIAGE PAID– CFR: COST AND FREIGHT (...named port of
destination)– CIF: COST, INSURANCE AND FREIGHT (...named
port of destination)– CPT: CARRIAGE PAID TO (…named place of
destination)– CIP: CARRIAGE AND INSURANCE PAID TO (...named
place of destination)18
INCOTERMS 2000 cont.
• GROUP D: ARRIVAL– DAF: DELIVERED AT FRONTIER (…named place)– DES: DELIVERED EX SHIP (...named port of destination)– DEQ: DELIVERED EX QUAY (...named port of destination)– DDU: DELIVERED DUTY UNPAID (…named place of destination)– DDP: DELIVERED DUTY PAID (…named place of destination)
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EX WORKS (EXW)
• DELIVERY:– SELLER PLACES THE GOODS AT BUYER’S DISPOSAL– AT SELLER’S PREMISES– NOT CLEARED FOR EXPORT – NOT LOADED ON ANY VEHICLE
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EX WORKS (EXW)
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SELLER’S RISK
SITE
BUYER’S RISK
S BSELLER’S COST BUYER’S COST
DELIVERY
FREE ON BOARD (FOB)
• DELIVERY:– WHEN GOODS PASS SHIP’S RAIL– IN PORT OF SHIPMENT
• SELLER CLEARS GOODS FOR EXPORT• FOB ONLY FOR SEA AND INLAND WATERWAY
TRANSPORT
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FOB
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SSITE
BSELLER’S COST BUYER’S COST
SELLER’S RISK BUYER’S RISK
DELIVERY
COST, INSURANCE AND FREIGHT (CIF)
• DELIVERY:– WHEN GOODS PASS SHIP’S RAIL– IN PORT OF SHIPMENT
• SELLER CONTRACTS AND PAYS:– INSURANCE– FREIGHT
• CIF ONLY FOR SEA AND INLAND WATERWAY TRANSPORT
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TO NAMED PORT OF DESTINATION
CIF
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SSITE
BSELLER’S COST BUYER’S COST
SELLER’S RISK BUYER’S RISK
DELIVERY
CARRIAGE AND INSURANCE PAID TO(CIP)
• DELIVERY:– TO FIRST CARRIER NOMINATED BY SELLER
• SELLER CONTRACTS AND PAYS:– CARRIAGE – INSURANCE
• CIP USED IRRESPECTIVE OF MODE OF TRANSPORT, INCLUDING MULTIMODAL TRANSPORT
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TO NAMED PLACE OF DESTINATION
CIP
27
S
DELIVERY
BUYER’S RISK
SITEBORDER
BSELLER’S COST
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• Most suitable for purchase of imported goods and equipment
Use of Letters of Credit
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Definition of Letters of Credit
A written undertaking by a bank(issuing bank) given to the Seller at the
request and in accordance with theinstructions of the Purchaser to effect
paymentup to a stated amount, within a prescribed
time limit, and against stipulated documents
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LETTER OF CREDIT: 1
BUYER SELLER
1. Contract
3. Letter of Credit
5. Goods on Board12. GoodsDelivered CIF
7. 6.Doc.s
8. Documents
9. Money
11.Money
10.Documents
2.Credit
AdviseL/Cissued
4.
ISSUING BANK ADVISING/CONFIRMINGBANK
Contracts for Works• Performance Security• Advance Payment Security• Insurance Obligations/Documentation• Supervision of Works• Due Diligence of Engineer/Employer• (Progress) Payment Certificates• Liquidated (Delay) Damages• Completion Certificate• Liability Period (usually 1 year)• Defect Liability Certificate
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Unit Price/Ad Measurement Contracts
• Use of Bill of Quantity (quantities estimated by Employer and Unit Prices offered by Contractor/Bidder)
• Payments as per quantities executed * Unit Prices• Variation Orders• Quantity Variations: use contract provision for % limits on
increases / decreases• New Prices determined by Engineer
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Lump Sum Contracts• For simple contracts, construction of buildings • Quantities estimated by Contractor/Bidder under his own
responsibility• Final Payment predetermined as a LS• Payments as per Schedule of Activities• Normally no price increase (except under Price Adjustment
provision in contract)• Engineer to supervise quality and compliance with contract
specifications
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Contracts for Works
• Price Adjustment Provision• Final Payment• Delayed Payments/Interest due• Contract Amendments (subject to Bank
Review if > 15% in value)• As-Built Drawings• Operation and Maintenance Manuals
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SECURITIES, BONDS AND GUARANTEES (cont’d)
• PERFORMANCE SECURITY
– BOND OR BANK GUARANTEE
¨ BORROWER SPECIFIES IN
BIDDING DOCUMENT
¨ BOND -- 30% - 50%
¨ PERFORMANCE BANK GUARANTEE -- 10%
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SECURITIES, BONDS AND GUARANTEES (cont’d)
• RETENTION– NORMALLY 5% OR 10% OF EACH PAYMENT CERTIFICATE– HALF PAID TO CONTRACTOR ON TAKE OVER– SECOND HALF REPLACEABLE BY BANK GUARANTEE ON TAKE-OVER
(HENCE ALSO PAID ON TAKE-OVER)
• ADVANCE PAYMENTS
– TO BE SECURED BY BANK GUARANTEE (NOT BY AN INSURANCE BOND!) FOR EQUAL AMOUNT
Common Problems
• Inappropriate payment practices– Excessive advance payments (70%!) 15-20% should be a maximum– Advance payments inadequately secured (must be a bank
guarantee)– Delays in making balance payment (up to one year+!)– Interest is not paid to Contractor on delayed payment
• Consequences: – Contractors add cost to their bid price (up to 35%!)– Serious contractors/suppliers stay away from public procurement!
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Common Problems (cont’d)
• Poor performance by Contractors• Mostly consequence of:
– Insufficient qualification of contractors– Poor practices in qualifying contractors– Lack of monitoring and remedial actions by
Employer/Engineer– Collection of Delay (Liquidated) Damages is
deficient/non existent
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Common Problems (cont’d)
• Receipt of Goods/Delivery Notes deficient and/or unrecorded
• End users unaware of warranty obligations of supplier
• Contract Filing and Documentation inadequate
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Contract Management Monitoring and Evaluation
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Issues to be addressed
• Monitor contract execution to ensure that Contractor/Supplier performs as per Contract
• Sanctions in case of non-performance• Payment should be contingent on satisfactory
performance
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Recommendations for Effective Monitoring (1/2)
• Monitoring system should provide for adequate sanctions against both public officers and contractors/suppliers
• Sanctions must be well known to both contractors and implementing agencies
• Project monitoring should be provided with appropriate staff, equipment, and motivation and by empowering the team with the required authority
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Recommendations for Effective Monitoring (2/2)
• Need for a handbook for monitoring goods/works/services, build on best practice, and addressing both financial and technical issues
• Use independent consultants for monitoring/supervision of large technical supplies and civil works
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