Effectiveness and Termination of the Loan Agreement
(1) The Borrower shall provide the BANK with satisfactory evidence of authority for the person(s) who will make, sign, and deliver the documents necessary for the implementation of the Loan Agreement, together with an authenticated specimen of the signature of each of those persons.
(2) When any change relevant to the evidence of authority mentioned in the preceding paragraph has occurred, the Borrower shall notify the BANK in writing of the fact, supplying the BANK with satisfactory evidence of the new authority.
(3) When a person(s) has(have) been designated to replace another(others) specified in the evidence of authority referred to in paragraph (1) above, the Borrower shall notify the BANK in writing of the fact, supplying the BANK with an authenticated specimen signature of the person(s) assigned as new.
(1) The Borrower shall supply the BANK with the Legal Opinion(s), made substantially in the form given in Formula No. 5 and, when required, in No. 6 attached hereto, prepared and certified by a person acceptable to the BANK showing:
(a) With respect to the Borrower, that the Loan Agreement has been duly authorized, executed, and delivered on behalf of the Borrower and constitutes a valid and binding obligation on the Borrower with respect to all its terms and conditions, and that the authorizations and all procedures necessary for the implementation of the Loan Agreement have been duly effected and completed.
(b) With respect to the Guarantor, if any, that the Guarantee has been duly authorized, executed, and delivered on behalf of the Guarantor and constitutes a valid and binding obligation on the Guarantor with respect to all its terms and conditions.
(2) After the Loan Agreement has entered into effect, the Borrower shall supply the BANK with an additional legal opinion(s) prepared and certified by the person mentioned above, on matters related to the Loan Agreement and the Guarantee, if any, as the BANK may require.
The Loan Agreement shall enter into effect on the date on which the BANK declares itself satisfied with the evidence of authority and the specimen signatures referred to in Section 10.01, paragraph (1), the Legal Opinion mentioned in Section 10.02, paragraph (1), and the Guarantee, if any.
The BANK shall immediately notify the Borrower in writing of the effective date of the Loan Agreement.
(1) If the Loan Agreement has not become effective within one hundred twenty (120) days from the date of signature, the Agreement and the Guarantee, if any, shall be terminated, unless the BANK, after considering the reasons for the delay, establishes a later date for the purpose of this Section. The BANK shall promptly notify the Borrower of the extension of the date.
(2) When the total principal amount of the Loan has been repaid and all interest and other charges that have accrued on the Loan have been paid, the Loan Agreement and the Guarantee, if any, shall automatically expire.
Formula No. 1 Date: ___________ Ref. No.: ___________ (Name and address of Borrower) Attention:
NOTICE REGARDING INTEREST AND PRINCIPAL Loan Agreement No. ______________________ Date: _____________________________ Maturity Date in Tokyo: __________________ Principal Repayment _______________________ Interest Payment: ___________________________ Total: ________________________________ Interest Calculation: as per the attached sheet.
Note: Please credit said amount to the account of JAPAN BANK FOR INTERNATIONAL COOPERATION at ________ Tokyo, Japan, by 12 noon on the Tokyo maturity date.
Authorized Signature Attachment (Formula No. 2) Name and address of Borrower Date: ___________ Ref. No.: __________ Attention Gentlemen:
NOTICE OF DISBURSEMENT We hereby notify you that from _______________ to __________ ________ (as per attached sheet), we have made disbursements totaling ____________________.
(Formula No. 3) Date: ________ Ref. No.: ________ Name and address of Borrower.
Attention:
Gentlemen:
NOTICE OF COMPLETION OF DISBURSEMENT With reference to Loan Agreement No. _____ dated _____, we hereby notify you that all disbursements under said Loan Agreement have been completed.
The details of the disbursements under the Loan Agreement are as follows:
1.- Loan Limit. (A): ________________________ 2.- Total accumulated disbursements (B): _____________ 3.- Undisbursed balance (A - B): __________________________ 4.- Date of last disbursement:
5.- Date of completion of disbursements:
We also wish to notify you that said Loan Agreement will be implemented as follows:
1.- Amortization schedule:
2.- Maturity dates for interest payments:
1.- Next maturity date:
2.- Subsequent maturity date:
As confirmation of this notice, please immediately send us a copy signed by a duly authorized person.
Authorized Signature Please do not detach Date:
We hereby acknowledge receipt of this notification and confirm that the Loan Agreement will be implemented as specified above.
Name of Borrower (Formula No. 4) Date: ______ Ref. No. : ______ JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Governor Gentlemen:
GUARANTEE FOR THE LOAN In consideration of the Loan of _______________ Japanese Yen (¥ ____________) to be granted to (name of Borrower) (hereinafter referred to as "the Borrower") by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") under Loan Agreement No. _________ dated __ ___________, between the Borrower and the BANK (hereinafter referred to as "the Loan Agreement"), I, the undersigned, acting for and on behalf of (name of Guarantor) (hereinafter referred to as "the Guarantor"), hereby affirm the following:
1.- That the Guarantor has accepted all the stipulations of the Loan Agreement and agrees to jointly and severally guarantee with the Borrower any and all liabilities arising from and in connection with the Borrower's obligations under the Loan Agreement.
2.- That the Guarantor further agrees that:
(1) The Guarantor guarantees the due and punctual payment of the principal, interest, and any other charges on the Loan as stipulated in that regard in the Loan Agreement; (2) The Guarantor shall not be released from any of its liabilities under this Guarantee by reason of any extension of maturity, forbearance, or concession granted to the Borrower, any exercise of right or remedy against the Borrower, any modification or amendment of the stipulations of the Loan Agreement (provided that if the principal of the Loan is increased, the Guarantor shall be released from its liabilities to the extent of such increase); 3) While any part of the Loan under the Loan Agreement remains outstanding and unpaid, the Guarantor shall:
- i)Take no action that prevents or interferes with the performance by the Borrower or any other beneficiaries of the Loan, if any, of the obligations under the Loan Agreement, and ii) Take no action, without the prior written consent of the BANK, for the dissolution or disestablishment of the Borrower or any other beneficiaries of the Loan, if any, or for the suspension of their activities.
3.- That the Guarantor waives notice of acceptance of its Guarantee, notice of any liability to which it may apply, notice regarding principal and interest, and notice of non-acknowledgment or non-payment of any such liabilities.
IN WITNESS WHEREOF, I, the undersigned, agree by my signature and affix my official seal on the date noted above.
(Name of Guarantor) (Authorized Signature) (Formula No. 5) Date: _______ Ref. No. : _______ JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Governor Gentlemen:
LEGAL OPINION ON THE LOAN AGREEMENT In consideration of the Loan granted by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") to (name of Borrower) (hereinafter referred to as "the Borrower") for the total loan amount not exceeding __________ Japanese Yen (¥_____) as principal, in accordance with the terms and conditions of Loan Agreement No. ______ dated _____ __ between the Borrower and the BANK and other supplementary agreements thereof (hereinafter referred to as "the Loan Agreement"), I, the undersigned, acting as legal advisor to the Borrower, certify the following:
I have taken into consideration and examined, among other things, the following documents:
(a) The Exchange of Notes between the Government of _______________ and the Government of Japan, dated _______________; (b) The Loan Agreement; © The evidence of authority and specimen signatures, dated _______ __, issued by __________; (d) Other documents; (e) All laws and regulations of the Borrower's country related to the power and authority of the Borrower to make, sign, and deliver the Loan Agreement.
Based on the foregoing, I hereby certify the following:
- 1)That the Loan Agreement has been made, signed, and delivered by (name and title of the authorized person), who has the power and authority to make, sign, and deliver under the (laws or regulations); 2) That the Borrower is authorized to borrow foreign currency funds from abroad under (laws or regulations) and that the terms and conditions of the Loan Agreement are consistent with the provisions of (laws and regulations); 3) That, therefore, the Loan Agreement has been duly authorized, made, signed, and delivered on behalf of the Borrower and constitutes a valid and binding obligation on the Borrower with respect to all terms and conditions; and 4) That the authorization and any other procedures necessary for the implementation of the Loan Agreement have been duly effected and completed.
IN WITNESS WHEREOF, I, the undersigned, agree by my signature and my official seal on (date)
(Minister of Justice, Attorney General, or other Competent Authority) (Formula No. 6) Date: _________ Ref. No.: _________ JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Governor Gentlemen:
LEGAL OPINION ON THE GUARANTEE In connection with the Guarantee given by (name of Guarantor) with respect to the Loan granted by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") to (name of Borrower) (hereinafter referred to as "the Borrower") for the total loan amount not exceeding __________ Japanese Yen (¥______) as principal, in accordance with the terms and conditions of Loan Agreement No. _____, dated ________ between the Borrower and the BANK and other supplementary agreements thereof (hereinafter referred to as "the Loan Agreement"), I, the undersigned, acting as legal advisor to (name of Guarantor) (hereinafter referred to as "the Guarantor"), certify the following:
I have considered and examined, among other things, the following documents:
(a) The Exchange of Notes between the Government of _______________ and the Government of Japan, dated _______________; (b) The Loan Agreement; © The Guarantee, dated ___________ (hereinafter referred to as "the Guarantee"); and (d) All laws and regulations of the Borrower's country related to the power and authority of the Guarantor to make, sign, and deliver the Guarantee.
Based on the foregoing, I hereby certify the following:
- 1)That the Guarantor has sufficient power and authority to guarantee the Loan granted by the BANK to the Borrower, in accordance with the terms and conditions of the Loan Agreement under (laws and regulations); 2) That the Guarantee was made and signed on (date), by (name and title), who is authorized to make and sign it for and on behalf of the Guarantor under the (laws and regulations); 3) That, therefore, the Guarantee has been duly authorized and granted, signed, and delivered on behalf of the Guarantor and constitutes a valid and binding obligation on the Guarantor with respect to all terms and conditions; and 4) That no other legislation or any other procedure is necessary for the effectiveness of the Guarantee.
IN WITNESS WHEREOF, I, the undersigned, agree by my signature and my official seal on (date)
(Minister of Justice, Attorney General, or Other Competent Authority) Procurement Guidelines Under JBIC ODA Loans OCTOBER, 1999 Contents Part I GENERAL ASPECTS
Part II INTERNATIONAL COMPETITIVE BIDDING (ICB) A. Type and Scope of Contracts
B. Advertising and Prequalification
C. Bidding Documents
D. Bid Opening, Evaluation, and Award of Contract
GENERAL ASPECTS
(a) The "Guidelines for Procurement under JBIC ODA Loans" are applicable to ODA Loans granted by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as the "BANK"), pursuant to Section (1), Paragraph 2, Article 23 of THE JAPAN BANK FOR INTERNATIONAL COOPERATION ACT.
(b) These Guidelines set forth the general rules to be followed by Borrowers from the BANK in the process of procuring goods and services for a development project financed totally or partially with a BANK ODA Loan. (The term "the Borrower" used in the Guidelines also refers to the Executing Agency of the project, and the term "services" used in these Guidelines excludes consulting services).
© The resources from the BANK's ODA Loans shall be utilized by paying due attention to considerations of economy, efficiency, transparency in the procurement process, and non-discrimination among eligible bidders for procurement contracts.
(d) The application of these Guidelines to a particular project financed with an ODA Loan granted by the BANK shall be stipulated in the Loan Agreement between the BANK and the Borrower.
(e) These Guidelines govern the relationship between the BANK and the Borrower, who is responsible for the procurement of goods and services. No provision of these Guidelines shall be construed as creating any right or obligation between the BANK and a third party, including bidders participating in the tender for the procurement of goods and services. The rights and obligations of the Borrower in relation to the bidders for goods and services to be supplied for the project shall be governed by the bidding documents that the Borrower issues in accordance with these Guidelines.
The BANK considers that in most cases International Competitive Bidding (ICB) is the best method to satisfy the requirements regarding the procurement of goods and services for projects, as stated in Section 1.01 (b) above. Therefore, the BANK normally requires Borrowers to procure goods and services through ICB, in accordance with the procedures set out in Part II of these Guidelines.
(a) Special circumstances may arise in which ICB is not appropriate, and the BANK may accept alternative procedures in the following cases:
(i) When the Borrower wishes to maintain reasonable standardization of its equipment or spare parts due to compatibility with existing equipment.
(ii) When the Borrower wishes to maintain the continuity of the services provided under an existing contract awarded according to procedures acceptable to the BANK.
(iii) When the number of qualified contractors, suppliers, or manufacturers (hereinafter referred to as "Contractors") is limited.
(iv) When the amount of the procurement is so small that foreign firms would obviously not be interested, or that the advantages of an ICB would be outweighed by the administrative burdens involved.
(v) When, in addition to the preceding cases (i), (ii), (iii), and (iv), the BANK deems it inappropriate to follow an ICB procedure, for example, in case of emergency procurement.
(b) In the above-mentioned cases, the following procurement methods may be applied, if deemed appropriate, to fulfill to the maximum extent possible the procedures of an ICB:
(i) Limited International Bidding (LIB), which essentially consists of a direct-invitation international public tender without open publication.
(ii) International Shopping, which is a procurement method based on comparing price quotations obtained from several (usually at least three) foreign and/or local suppliers to ensure competitive prices.
(iii) Direct Contracting.
(c) These Guidelines shall not apply to the procurement of goods and services to be financed with the local currency portion of the Loan.
The procurement of such goods and services, however, shall be carried out giving due attention to the considerations set forth in Section 1.01 (b). The BANK considers it appropriate that such procurements be carried out through Local Competitive Bidding (LCB) among Contractors of the Borrower's country.
(a) Any contract under which goods and/or services are procured from countries other than the eligible source countries for the implementation of the project shall be eligible for financing from a loan, if the combined costs of such goods and/or services will be less than 50% of the price of the contract in question.
(b) A firm or organization that has been engaged by the Borrower to provide consulting services for preparations related to the implementation of a project or to the procurement for a project, as well as any of its associates/affiliates (including parent firms), shall be disqualified from performing any other function in the same project (including participation in tenders related to any good or service for any part of the project).
Only in special cases and only with a clear justification, and after considering all aspects and circumstances, may the BANK and the Borrower agree to authorize a firm and/or its associates/affiliates (including parent firms) to be invited to tender on a project financed with BANK ODA Loans as Contractors, if they have been contracted for the same project also as consultants.
(c) The stipulations of paragraph (b) of this Section shall also apply to Contractors that provide, or temporarily transfer their personnel to, firms or organizations that are providing consulting services for the preparation related to procurement for a project, or for its implementation, if the personnel were involved in any function in the same project.
The BANK does not finance expenditures for goods and services that, in its opinion, have not been procured in accordance with the procedures of the Loan Agreement, and will cancel the portion of the Loan allocated to goods and services that have been misprocured. Additionally, the BANK may exercise other remedies provided for in the Loan Agreement. The BANK's policy requires that bidders and Contractors, as well as Borrowers, under contracts financed with BANK ODA Loans and other Japanese ODA, observe the highest standards of ethics during the procurement and execution of such contracts. According to this policy, the BANK:
(a) will reject a proposal for award if it determines that the bidder recommended for award has engaged in corrupt or fraudulent practices in competing for the contract in question; (b) will declare a Contractor ineligible, for a period determined by the BANK itself, for the award of a contract financed with BANK ODA Loans, if it determines at any time that the Contractor has engaged in corrupt or fraudulent practices in competing for, or in executing, another contract financed with BANK ODA Loans or other Japanese ODA.
PART II INTERNATIONAL COMPETITIVE BIDDING (ICB) A. Types and Size of Contracts
Contracts may be stipulated on a unit-price basis for work performed or items supplied, or on a lump-sum, cost-plus-fee, or a combination of such methods for different parts of the contract, depending on the nature of the goods or services to be provided. The bidding documents shall clearly indicate the type of contract selected. Cost-reimbursable contracts are not acceptable to the BANK, except in exceptional circumstances, such as conditions of high risk or the impossibility of determining costs in advance with sufficient accuracy. Single contracts for engineering, equipment, and construction to be supplied by the same provider ("turnkey contracts") are acceptable if they offer technical and economic advantages to the Borrower, for example, when a special process or considerable integration of the various stages is desirable.
For the purpose of ensuring the widest possible competition, individual contracts for which bids are invited should, when possible, be of a scope sufficiently large to attract bids at an international level.
(a) In the case of turnkey contracts or contracts for large-scale and complex installations, or procurement of equipment subject to rapid technological advances, such as major computer systems, for which it may not be desirable or practical to prepare complete technical specifications in advance, a two-stage bidding procedure may be adopted. Under this procedure, bidders will first be invited to submit unpriced technical proposals based on minimum operating and performance requirements. After technical and commercial clarifications and adjustments, followed by amended bidding documents, in the second stage, bidders will be invited to submit final technical proposals and bids that include prices. The BANK and the Borrower must agree on the use of such procedure.
(b) In cases of works, machinery, and equipment for which technical specifications are prepared in advance, the two-envelope bidding procedure may be adopted. Under this procedure, bidders will be invited to submit technical proposals and price proposals simultaneously in two separate envelopes. The technical proposals are opened and reviewed first, to determine whether they conform to the specifications.
After completing the evaluation of the technical proposals, the public opening of the envelopes containing the corresponding prices of the bidders whose technical proposals have been judged conforming to the technical specifications proceeds, and the presence of bidders or their representatives is permitted. The opening of the price envelopes shall follow the procedures established in Section 5.02 of these Guidelines. The evaluation of the price proposals shall be consistent with Section 5.06 of these Guidelines. The price proposals of bidders whose technical proposals have been judged not conforming to the technical specifications shall be returned promptly and unopened to the corresponding bidders. The use of this procedure must be agreed upon by the BANK and the Borrower.
B. Publicity and Prequalification
In all cases of contracts subject to ICB, invitations for prequalification or bidding shall be published in at least one newspaper of general circulation in the Borrower's country. The Borrower shall promptly send copies of such invitations (or of the notice) to the local representatives of the eligible source countries and to the BANK.
In principle, prequalification is required prior to bidding for large-scale or complex works and, exceptionally, for custom-designed equipment and specialized services, to ensure that invitations to bid are extended only to technically and financially capable parties. Such prequalification must be based entirely on the capacity of the potential bidders to fulfill contractual obligations satisfactorily, considering, among others, their: (i) experience in, and performance on similar contracts, (ii) capacity regarding personnel, equipment, and facilities, and (iii) financial situation. Annex I presents a model of factors to be evaluated during prequalification. A clear statement regarding the scope of the contract and the qualification requirements (criteria) shall be sent to all who wish to be considered for prequalification. All bidders who meet the specified criteria shall be allowed to participate in the bidding. At the time of award of the contract, the information provided during prequalification shall be verified, and the award may be denied to a bidder who is found to no longer possess the capacity or resources to successfully perform under the terms of the contract, including cases where the information provided was fraudulent or incorrect.
C. Bidding Documents
The bidding documents must provide all the necessary information to enable a potential bidder to prepare a bid for the goods and services to be provided. While the complexity and detail of such documents vary according to the scope and nature of the tender package and contract, they generally include: invitation to bid; instructions to bidders; bid form; contract form; conditions of contract (both general and special); technical specifications; list of goods or bill of quantities and drawings, as well as the necessary appendices describing in detail, for example, the required or acceptable type(s) of security. If a fee is charged for the bidding documents, its amount shall be reasonable and reflect the cost of their production, and shall not be so high as to discourage qualified bidders. In the following paragraphs, guidelines are given regarding the main components of the bidding documents.
The bidding documents should normally refer to the BANK and to corrupt or fraudulent practices using the following expressions:
(a) "....(name of Borrower).... has received (or, where appropriate, "has applied for") an ODA Loan from the JAPAN BANK FOR INTERNATIONAL COOPERATION in the amount of ____ yen to cover the costs of (name of project, date of signing of the Loan Agreement), and intends to use (where appropriate, "a portion of") the loan proceeds for making payments under this contract. Disbursement of an ODA Loan from the JAPAN BANK FOR INTERNATIONAL COOPERATION will be subject, in all respects, to the terms and conditions of the Loan Agreement, including the disbursement procedures and the Guidelines for Procurement under JBIC ODA Loans. No one other than (name of Borrower) shall derive any right from the Loan Agreement or make any claim on the loan proceeds.
The Loan Agreement mentioned above will cover only a part of the project cost. As for the remaining portion, (name of Borrower) will take the necessary measures for financing." (b) "The BANK requires that bidders and Contractors, as well as Borrowers, under contracts financed with BANK ODA Loans and other Japanese ODA, observe the highest ethical standards during the procurement and execution of such contracts. In accordance with such policy, the BANK; (i) will reject a proposal for award if it determines that the bidder recommended for award has engaged in corrupt or fraudulent practices in competing for the contract in question; (ii) will declare a Contractor as ineligible, for a period determined by the BANK itself, for the award of a contract financed with BANK ODA Loans, if it determines at any time that the Contractor has engaged in corrupt or fraudulent practices in competing for, or in executing, another contract financed with BANK ODA Loans or other Japanese ODA."
In general, bid bonds or guarantees are required, which, however, must not be set so high as to discourage qualified bidders. The bid bonds or guarantees corresponding to unsuccessful bidders must be released as soon as possible after the opening of the bids.
The conditions of contract must clearly define the rights and obligations of the Borrower and the Contractor, as well as the powers and authority of the consultant as the engineer, if one is employed by the Borrower, in the administration of the contract and any amendment thereof. In addition to the usual general conditions of a contract, some of which are indicated in these Guidelines, special conditions appropriate to the nature and location of the project must be included.
The specifications shall state as clearly and precisely as possible the work to be performed, the goods and services to be provided, and the place of delivery or installation. The drawings shall be consistent with the text of the specifications. In case they do not agree with the text of the specifications, such text shall prevail. The bidding documents shall specify any factor, in addition to price, that will be taken into consideration during the evaluation and comparison of bids, and in what manner such factors will be quantified or otherwise evaluated. If bids based on alternative designs, materials, completion schedules, or payment terms are permitted, the conditions under which they will be accepted and the method to be adopted for the evaluation of such bids shall be expressly stated. Any further information, clarification, correction of errors, or alteration concerning the specifications shall be sent as soon as possible to all parties that have requested the original bidding documents. The invitations to bid shall specify the eligible source countries and other eligibility provisions, such as the permissible content of imports from non-eligible source countries (as stated in Section 1.04). The specifications must be formulated in such a way as to permit and encourage the widest possible competition.
If national standards or other norms with which the equipment or materials must comply are cited, the bidding documents must state that equipment or materials conforming to the Japanese Industrial Standards, or to other internationally accepted standards that ensure quality equal to or higher than that of the specified norms, will also be accepted.
The specifications must be based on performance capacity and shall only mention brand names, catalog numbers, or products of a particular manufacturer if specific spare parts are required or if it has been determined that a degree of standardization is necessary to ensure the maintenance of certain essential characteristics. In this latter case, the specifications must allow offers for alternative goods with similar characteristics that offer performance and quality at a level at least equal to that specified.
Since the use of the resources provided by BANK ODA Loans is limited to the financing of expenditures relating to goods and services from eligible source countries (including permissible imports from non-eligible supplier countries), the bidding documents must require that the Contractor use only such goods and services under the contract and identify all expenditures related to non-eligible source countries (import content) in their statements or invoices.
The BANK ODA Loan is expressed in Japanese yen, and the bid price shall generally be stated in Japanese yen. However, when necessary, the use of other internationally traded currencies is permitted. Additionally, any portion of the bid price that the bidder expects to spend in the Borrower's country may be stated in the currency of the Borrower's country. The bidding documents shall specify the currency or currencies in which the bid price is to be calculated.
The bid price is the sum of all payments to be made to the bidder, in any currency. For the comparison of prices, all bid prices must be converted to a single currency selected by the Borrower and declared in the bidding documents. The Borrower must perform such conversion by referring to the exchange rates (selling price) corresponding to those currencies quoted by an official body (such as the Central Bank) for similar transactions on a date selected in advance and specified in the bidding documents, provided that such date falls no more than thirty days before, nor later than, the date stated for the opening of bids.
(a) Payments of the contract amount shall be made in the currency or currencies in which the bid price of the successful bidder is stated, unless a different arrangement is justified and clearly specified in the bidding documents.
(b) When the bid price is to be paid, wholly or partially, in a currency or currencies different from those specified in the proposal, the exchange rate to be adopted for payment must correspond to that specified by the bidder in its bid, to ensure that the value of the currency or currencies used in the proposal is maintained without losses or gains.
The bidding documents must specify clearly whether fixed prices are required or whether price adjustments to the bid prices are acceptable. In appropriate cases, provisions for the adjustment (increase or decrease) of contract prices shall be included, in the event of changes in the prices of the main components of the contract, such as labor or important materials. Specific formulas for price adjustment must be clearly defined in the bidding documents so that the same clauses can be applied to all bids. In contracts for the supply of goods, a limit for price adjustment must be included. However, this type of limit is generally not included in contracts for civil works. Normally, provisions relating to price adjustments should not be foreseen for goods that are to be delivered within a one-year period.
The percentage of the total payment to be made in advance upon the contract's coming into force, for mobilization expenses and similar items, must be reasonable and must be specified in the bidding documents. Likewise, other advance payments, such as for materials delivered to the site to be used in the works, must be clearly defined in the bidding documents. The same documents must specify the provisions related to any type of security required for the advance payments.
The bidding documents for civil works must require some type of guarantee ensuring that work is continued until completion. This guarantee may be provided as a bank guarantee or performance bond, whose amount varies according to the type and scale of the works, but must be sufficient to cover the Borrower in case of breach by the Contractor. A portion of the guarantee must extend for a date sufficiently after completion of the work to cover the propensity for defects or the maintenance period until final acceptance by the Borrower. For such portion of the guarantee extended beyond the completion date of the works, contracts may establish a percentage of each periodic payment to be retained until final acceptance. The amount of the required guarantee must be defined in the bidding documents. In contracts for the supply of goods, it is generally preferable to retain a percentage of the total payment as retention money for the purpose of guaranteeing performance, rather than requesting bank guarantees or bonds. The percentage of the total payment to be retained and the conditions for final payment must be stipulated in the bidding documents. However, if bank guarantees or bonds are preferred, the stipulated amounts must be reasonable.
The bidding documents must precisely indicate the types and terms of insurance (e.g., liabilities to be covered and the duration of the insurance) that must be obtained by the successful bidder.
Clauses for liquidated damages must be included in the bidding documents to be applied when delays in execution or delivery result in additional costs, loss of profits, or other benefits for the Borrower. Provisions may also be included establishing the payment of bonuses to contractors for completing civil works contracts within or before the date stated in the contract, if such early completion of the works results in a benefit for the Borrower.
The conditions of contract included in the bidding documents must contain, when appropriate, clauses stipulating that the failure of one of the parties to perform its contractual obligations shall not be considered a breach of contract when such failure results from a force majeure as defined in the conditions of contract.
The bidding documents shall be prepared in English. In case another language is used for the bidding documents, a complete English-language version must be incorporated into them, and it must be specified which version shall prevail.
Provisions relating to the settlement of possible disputes shall be included in the conditions of contract. It is advisable that such provisions be based on the "Rules of Conciliation and Arbitration" prepared by the International Chamber of Commerce.
The laws that will govern the interpretation and performance of the contract shall be stipulated in the contract.
D. Opening of Proposals, Evaluation, and Award of Contract
The time allowed for the preparation and submission of proposals shall be determined with due consideration to the particular circumstances of the project, as well as to the scope and complexity of the contract. In general, a period of not less than 45 days shall be allowed for international bidding. In the case of large-scale civil works or complex equipment items, a period of not less than 90 days shall generally be allowed to enable potential bidders to conduct investigations at the work site before submitting their proposals.
The date, time, and place for the final receipt and opening of proposals shall be stated in the invitations to bid, and all bids shall be opened publicly at the stipulated time and place. Proposals received after the deadline shall be returned unopened. The name of the bidders as well as the total amount of each proposal and of any alternative offer, if requested or permitted, shall be read aloud and recorded at the time of opening. Such record must be confirmed and signed by all bidders or their representatives present at the opening of the bids, and a copy of said record must be sent as soon as possible to the BANK.
Except for cases for which Section 5.10 of these Guidelines provides otherwise, no bidder shall be asked or allowed to alter its proposal after the opening of the bids. Only clarifications that do not alter the essential parts of the proposal shall be accepted. The Borrower may request a clarification of the proposal from any bidder, but may not require any bidder to change substantive aspects or the price of the bid.
Except as specified in legal provisions, no information relating to the analysis, clarification, and evaluation of proposals, nor recommendations concerning the award of the contract, shall be communicated after the public opening of proposals to persons not officially connected with the process until the contract has been awarded to a bidder.
After the opening of proposals, it must be verified whether material arithmetic errors have been committed in the proposals, whether the proposals substantially conform to the specifications in the bidding documents, whether the requested guarantees have been provided, whether the documents have been duly signed, and whether the proposals are in order in general. If a proposal does not substantially correspond to the specifications, or if it contains inadmissible reservations or in some other way does not substantially respond to the specifications in the bidding documents, such proposal must be rejected. Then a technical analysis must be carried out for the purpose of evaluating each of the proposals that conform to the specifications and allowing their comparison.
(a) The purpose of the evaluation of proposals is to compare proposals that conform to the technical specifications and respond to the bidding documents on the basis of estimated costs.
Among proposals conforming to the technical specifications, the contract shall be awarded to the proposal with the cost evaluated as the lowest, not necessarily to the proposal that has presented the lowest price. Even when a prequalification of bidders has been carried out, full importance shall be given to technical aspects during the evaluation of the proposals.
(b) The evaluation of proposals must be in accordance with the terms and conditions indicated in the bidding documents. The bidding documents must specify, in addition to the clauses for adjusting the bid price in order to correct possible computational errors, those relevant factors to be considered in the evaluation of the proposals, as well as the manner in which they will be applied, for the purpose of determining the evaluated proposal that is determined to be the lowest. The factors that may be taken into consideration include, among others, the cost of domestic transportation to the project works site, the payment schedule, the time until completion of construction or delivery, operating costs, the efficiency and compatibility of the equipment, the availability of service and spare parts, the reliability of the proposed quality control methods (including construction methods), as well as safety, environmental benefits, and minor deviations that could occur. As far as possible, factors other than price must be expressed in monetary terms according to criteria specified in the bidding documents, or be considered relatively important according to the evaluation provisions of the bidding documents. The price adjustment clauses included in a bid must not be taken into consideration.
(c) For the purposes of evaluation and comparison of proposals for the provision of goods to be acquired on the basis of international bidding:
(i) Bidders are required to indicate in their proposals the c.i.f. (cost, insurance, freight) price to the port of entry for imported goods, or the ex-factory price of other goods offered in the proposal.
(ii) Customs duties and other import taxes charged in connection with importation or sales, as well as other similar taxes charged in connection with the sale or delivery of the goods corresponding to a proposal, must not be taken into account in the evaluation of proposals; and (iii) In case it is specified in the bidding documents, the cost of domestic transportation and other incidental expenses for transport and delivery of the goods to the place of their use or installation for the project purposes must be included.
(d) Bidders must take into account during the preparation of bids factors such as the extent to which contractors will be responsible for all customs duties, taxes, and other levies under civil works contracts. The evaluation and comparison of proposals must be carried out considering this aspect.
(e) No procedure is permitted under which proposals that fall above or below a predetermined bid value are automatically disqualified.
In case a prequalification of bidders has not been carried out, the Borrower must determine whether the bidder whose bid has been evaluated as the lowest has the capacity and resources to effectively fulfill the contractual obligations.
The criteria that must be satisfied must be specified in the bidding documents, and in case the bidder does not meet all the specified requirements, the proposal must be rejected. In this case, the borrower must proceed in a similar manner with the bid considered the second lowest.
The Borrower or its consultants must prepare a detailed report on the evaluation and comparison of the proposals, indicating the specific reasons on which the determination of the proposal evaluated as the lowest was based.
The contract must be awarded to the bidder whose bid has been determined to be the lowest and who satisfies the appropriate capacity and financial resource standards. The bidder must not be required, as a condition for the award of the contract, to assume responsibilities or perform works not stipulated in the specifications or to modify its proposal.
The bidding documents generally specify that the Borrower may reject all proposals. However, all proposals must not be rejected and new proposals then solicited on the basis of the same specifications solely for the purpose of obtaining lower prices in the new proposals, except in those cases in which the price of the proposal evaluated as the lowest is considerably higher than the estimated cost. The rejection of all proposals may also be justified if (a) no bid substantially responds to the bidding documents, or (b) there is no competition. In case all proposals are rejected, the Borrower must review the factors that made such rejection necessary, and consider either the revision of the specifications or a modification of the project (the quantity of work or the items required in the original invitation to bid), or both options, before soliciting new bids. In case special circumstances justify it, the Borrower may, as an alternative to a new call for bids, negotiate with the bidder whose bid has been considered the lowest (or, in case such negotiation does not lead to satisfactory results, proceed to negotiate with the bidder whose bid has been considered the second lowest) to try to obtain a satisfactory contract.
Factors to be evaluated during prequalification (Model) . The prequalification process is intended to prequalify Contractors with respect to the capabilities described below prior to the call for bids, so that invitations to bid are sent only to candidates who meet the technical and financial requirements. The Borrower reserves the right not to insist on minor deviations, if they do not materially affect a bidder's ability to execute the contract satisfactorily. The experience and resources of subcontractors shall not be taken into account when determining the Applicant's adherence to the qualification criteria.(1) (1 The experience and resources of subcontractors may be considered, however, when they perform essential works under the supervision of the prime contractor(s).)
. This model merely provides examples of the factors to be evaluated in the prequalification documents. The model will have to be adapted to a greater or lesser extent during the actual preparation of the prequalification documents, taking into account the scale and nature of the contract.
. The importance attributed to each of the following factors shall be determined on the basis of each project.
1. General Experience The Applicant must submit the following information:
. Average annual turnover during the last ____ years. The minimum required is $ _______.(2) (2 Generally not less than five times the estimated annual cash flow for the contract or works proposed. The coefficient may be lower in large-scale contracts.)
. Successful experiences as prime Contractor in the execution of projects of a nature and complexity comparable to those of the contract in question. Execution of at least ____ projects during the last ___ years is required.(3) Experience in the execution of projects of similar nature and complexity refers to the execution of more than (e.g., one million cubic meters of rock placed in riprap dams during one year).(4) (3 It is essential to ensure that the criteria are drawn up in accordance with the actual needs of the project. For standard projects, execution of three projects over a period of five years may be required, and ten years for large-scale projects.
In the case of projects of a special nature, the criteria must be established based on each case.)
(4 For example, indicate an annual production rate for the key construction activity. The annual rate must equate to a percentage (e.g., 80%) of the maximum expected construction rate for the key activity.)
. Letters of reference from previous clients, together with their postal addresses, telephone numbers, etc., in order to show evidence of past performance in the execution of projects of comparable nature and complexity.
. When evaluating the experience and capability of an Applicant, specific experience in the execution of projects in the country in question and generally in similar countries will be taken into consideration.
2. Personnel Capabilities . The Applicant must have adequately qualified personnel to fill the following positions. For each position, the Applicant must provide information on a primary candidate and an alternate, who must satisfy the experience requirements indicated below.
| Total Experience (Years) | In similar works (Years) | As directors of similar projects (Years) |
|---|
| Project Director Other Position | | | |
(Include only key management and specialized positions) 3. Equipment Capabilities The Applicant must own, or have secure access to, the following key items of equipment in perfect working order, and must demonstrate that said equipment will be available for use in the proposed contract. The Applicant may also list alternative equipment it would propose for the Contract, together with an explanation of its proposal.
| Equipment type and characteristics | Minimum quantity required |
|---|
| 1. 2. | |
(What is indicated in this Section applies mainly to construction works or contracts requiring production capacity. The items listed must be limited to the main items of equipment considered crucial for the proper and timely execution of the contract, and that the applicants might not be in a position to purchase, hire, or lease within the established time frame.)
4. Financial Position (1) The Applicant must demonstrate that it has access to, or possesses, liquid assets, unencumbered real assets, lines of credit, and other financial means sufficient to meet the cash flow required for construction for a period of ___ months, estimated at the equivalent of ___ US$, net of the Applicant's commitments for other contracts.(5) (5 The cash flow is calculated over a period of several months, estimated as the total time required by the Borrower to pay a Contractor's invoice from the moment said invoice has been issued.)
(2) The Applicant must submit the documents relating to its audited balance sheets for the last five years, and demonstrate the soundness of its financial position. Where necessary, the Borrower may make inquiries with the banks where the Applicant operates.
5. Litigation History . The Applicant must provide accurate information on any litigation or arbitration resulting from contracts completed or still being executed by it during the last few years. A consistent pattern of awards against the Applicant or any partner of a joint venture may result in rejection of the application.
6. In the case of a joint venture (1) The lead partner must meet not less than ___% of all the qualification criteria indicated in paragraphs 1 and 4 (1) above.(6) (6 Except in very large projects, the appropriate percentage shall not be less than 40%.)
(2) The other partners must meet not less than ___% of all the qualification criteria indicated in paragraphs 1 and 4 (1) above.(7) (7 Except in very large projects, the appropriate percentage shall not be less than 25%.)
(3) The joint venture must collectively conform to the criteria of paragraphs 2, 3, and 4 (1), and for this purpose the relevant figures of each partner must be added together to arrive at the total capacity of the joint venture. Each of the individual partners must meet the requirements of paragraphs 4 (2) and 5.
The formation of a joint venture after prequalification, as well as any modification to a prequalified joint venture, will be subject to written approval by the Borrower before the deadline for the submission of proposals expires. Such approval may be denied, if (i) as a result of the modification to a prequalified joint venture, one or more of its partners, individually or collectively, do not meet the qualification requirements, or if (ii) in the opinion of the Borrower it could result in a substantial reduction of competition.
Guidelines for Employment of Consultants under JBIC ODA Loans October, 1999 Content Part I GENERAL ASPECTS
Part II CONSULTANCY SERVICES
Part III SELECTION PROCEDURES
Part IV CONTRACT
1. Information on the Project 2. Other Relevant Information 3. General Terms of Reference 4. Specific Terms of Reference 5. Services and Facilities to be Provided by the Borrower
GENERAL ASPECTS
(1) The "Norms for the Contracting of Consultants within the scope of JBIC ODA Loans" are applicable to ODA loans granted by the Japan Bank for International Cooperation (hereinafter referred to as "the BANK"), pursuant to Section (1), Paragraph 2, Article 23 of the JAPAN BANK FOR INTERNATIONAL COOPERATION LAW.
(2) For the efficient and adequate preparation and execution of projects financed totally or partially by the BANK's ODA Loans, the majority of Borrowers require the assistance of consultants. (In these Norms, the term "Borrower" also refers to the Executing Agency of the project, and the term "consultant(s)" indicates "consulting firm(s)", excluding individual consultants, unless explicitly stated otherwise).
(3) The objective of these Norms is to indicate the BANK's views regarding the adequate selection and contracting of consultants and the full utilization of their experience, as well as to ensure their impartiality and establish general rules to which Borrowers will have to adhere in the contracting of consultants. The manner in which these Norms are to be applied to each particular project financed by the BANK's ODA Loans shall be stipulated in the Loan Contract between the BANK and the Borrower.
In the majority of cases, the need to employ consultants shall be established jointly between the Borrower and the BANK, and the Terms of Reference for their services shall be drafted either before or during the negotiations concerning the BANK's ODA loan. At the same time, both parties shall agree on the approximate amount of the funds required for such services.
The selection of consultants for a project financed by a BANK ODA Loan is the responsibility of the Borrower.
(1) The BANK maintains files with information provided by various consultants regarding their capacity and experience.
(2) The information in such files is available to those Borrowers who wish to review and evaluate the experience and qualifications of the consultants they consider contracting for their projects. However, the information available in the BANK's reference files is limited, and it is frequently necessary for the BANK or the Borrowers to request additional detailed information from a particular consultant in order to judge its capacity to carry out a specific task.
(3) The fact that the BANK has received information about a consultant does not grant that consultant the right to any contract financed by the BANK's ODA Loans. This also does not mean that the BANK guarantees the consultant's qualifications in general, nor that it will accept its appointment for a specific project. The BANK does not have a list of "approved" consultants.
PART II CONSULTANCY SERVICES
(1) In general, consultancy services can be grouped into the following four broad categories:
(a) Pre-investment studies, which include:
- i)determination of the relative priority to be given to a project; ii) formulation and comparison of alternatives, and recommendations indicating which is the best; iii) elaboration of a general engineering plan and preliminary design of the main structures; iv) estimates of costs, benefits, and construction time; v) evaluation of economic solvency and technical competence, and financial and commercial feasibility, suitability of organizational and administrative arrangements, and social and environmental impact; vi) recommendations and/or execution related to environmental and social issues, including the implementation/review of environmental impact assessments (evaluaciones de impacto ambiental, EIA); and vii) other recommendations regarding the execution of the project.
(b) Preparation services, which include:
- i)detailed investigation and review of pre-investment studies; ii) preparation of detailed designs, specifications, and contract documents; iii) prequalification of contractors, suppliers, and manufacturers (hereinafter referred to as "Contractor(s)"); iv) evaluation of bids and recommendations regarding the award of the contract; and v) recommendations and/or execution related to environmental and social issues, including the execution/review of environmental impact assessments (evaluaciones de impacto ambiental).
(c) Execution services, which include:
- i)supervision of construction works; ii) technical and administrative services for the execution and administrative management of the project; iii) recommendations and/or execution related to environmental and social issues, including environmental management, monitoring, and auditing.
(d) Other services necessary for the project, which include:
- i)assistance in the start-up and operation of facilities during an initial period; ii) advisory services concerning, for example, sector and development planning, and institutional structuring; iii) assistance in the implementation of recommendations, post-evaluation, and project impact studies; and iv) other support services for the Borrower.
(2) Considering the advantages of the continuity of the basic technical approach, it is recommendable that functions (b), (c), and (d) be carried out by the same consultant. If a consultant has already satisfactorily fulfilled function (a), there are generally considerable advantages in appointing that consultant to carry out functions (b), (c), and (d).
(1) Consultants must employ at all times their maximum skill, care, and diligence in fulfilling their obligations. Consultants are responsible for the accuracy and completeness of their work.
(2) In all professional matters, the consultant must act as a faithful advisor to the Borrower. However, the Borrower may, in the case of supervision of works and/or administrative aspects, delegate to a consultant greater or lesser authority to act on its behalf, from the full responsibility of making final decisions as an independent engineer, to the responsibility of advising the client with little decision-making authority. The nature and limits of this delegation of authority to the consultant, as well as the scope and nature of the responsibilities it must assume, shall have to be clearly defined in the Terms of Reference and in the contract between the Borrower and the consultant.
(3) In case of differences of opinion between the Borrower and the consultant on any important matter involving professional judgments that may affect the proper evaluation or execution of the project, the Borrower must allow the consultant to submit as soon as possible a written report to the Borrower, and at the same time deliver a copy to the BANK. The Borrower must forward the report to the BANK together with its comments, in time to allow the BANK to analyze it and communicate with the Borrower before irreversible steps are taken. In case of urgency, the consultant shall have the right to request the Borrower and/or the BANK that the matter be immediately put into discussion between the Borrower and the BANK. This provision must be indicated in the Terms of Reference and in the contract between the Borrower and the consultant.
In order to ensure the efficient and appropriate execution of the project, as specifically required in the Loan Contract, it is essential that the consultants employed for projects financed by the BANK's ODA Loans undoubtedly possess the necessary competence.
In order to ensure not only that the goods and services used for projects financed by the BANK's ODA Loans are adequate and have a reasonable cost, but also that the designs and specifications do not limit in any way the BANK's requirements regarding competitive bidding, it is essential to be able to demonstrate the impartiality of the consultants employed for projects financed by the BANK's ODA Loans.
(1) Generally, consulting firms are framed within the following categories:
(a) Independent consulting firms; (b) Public sector organizations (including public corporations and foundations), which also offer consultancy services; (c) Firms that combine the functions of consultants with those of contractors, or that are associated, affiliated with, or owned by contractors; (d) Firms that combine the functions of consultants with those of manufacturers, or are associated, affiliated with, or owned by manufacturers.
(2) In accordance with what is indicated in section 2.04, consulting firms in all categories of paragraph (1) of this section contracted by the Borrower in order to provide consultancy services for the procurement-related preparation of a project, or for its execution, and their associates/affiliates (including the parent firms), must be disqualified from exercising any other function in the same project (including participation in bids related to goods and services for any part of the project), except for the continuation of the consultancy services that the firm had been providing as further described in paragraph (2) of Section 3.01. Only in special cases and only with clear justifications, and after considering all aspects and circumstances, may the BANK and the Borrower agree to authorize a firm and/or its associates/affiliates (including the parent firms) to be invited to bid for a project financed by the BANK's ODA Loans as Contractors, if they are employed in the same project as consultants.
(3) The stipulations of paragraph (2) of this section shall also apply to Contractors that facilitate or temporarily transfer their personnel to firms or organizations that are providing consultancy services for the procurement-related preparation for a project, or for its execution, if the personnel were involved in any function in the same project.
(1) A consulting firm contracted by the Borrower for a project financed by the BANK's ODA Loans must meet the following requirements:
(a) The majority of the subscribed shares must be held by citizens of eligible source countries; (b) The majority of the full-time directors must be citizens of eligible source countries; (c) The firm must be constituted and registered in an eligible source country.
(2) Consultancy services provided in part by consulting firms that do not meet the requirements set forth in section (1) above, may be eligible for financing, if the total person-month provided by such firms corresponds to less than 50% of the person-month required for the consultancy services. However, such consulting firms cannot be employed by the Borrower, but must be subcontracted by the consulting firms that meet the three conditions mentioned in paragraph (1).
The Borrower is responsible for supervising the consultant’s performance and for ensuring that the consultant fulfills its tasks in accordance with the contract. Without assuming the responsibilities of the Borrower or the consultant, the BANK may monitor the work as it deems appropriate to ensure that it is carried out in accordance with appropriate standards and based on acceptable data. As pertinent, the BANK may take part in discussions between the Borrower and the consultant. However, the BANK shall not be responsible in any way for the execution of the project by reason of such monitoring or participation in discussions. Neither the Borrower nor the consultant shall be released from any responsibility for the Project by reason of the BANK’s monitoring or its participation in discussions. This provision shall be clearly specified in the agreement signed by the Borrower and the consultant.
PART III SELECTION PROCEDURES
(1) The BANK generally requires that Borrowers adopt the following procedures for the selection and employment of consultants:
(a) Preparation of Terms of Reference and cost estimates; (b) Preparation of a Short List of Consultants; (c) Invitation to submit proposals; (d) Evaluation of proposals; and (e) Negotiation of a contract.
Proposals for consultant services shall be evaluated solely on the basis of the qualifications of the firms and their personnel for the tasks, as well as the quality of the proposals in terms of approach and methodology. Discussions related to costs and other financial aspects, therefore, shall only be conducted with consultants who have been selected to be invited to participate in contract negotiations.
(2) The BANK may, however, agree to the Borrower employing a specific consultant in the following cases:
(a) when the consultant has previously performed services satisfactorily for the project in question, such as the preparation of a pre-investment study; (b) when the consultant has previously performed services satisfactorily on a project closely linked to and/or similar to the project in question; (c) when the consultant is considered the only firm qualified to provide the required services; (d) when the consultant is considered the best for the required services for other valid reasons.
(3) In the event that two or more consultants jointly submit a proposal for consulting services, the same procedures as indicated in this Part shall be followed.
(4) If the Borrower wishes to employ an individual consultant, the Borrower must consult with the BANK regarding the selection procedures to be adopted.
(5) All documents related to the selection and employment of consultants must be in the English language. If another language is used in such documents, a complete English language version must be incorporated into them, and it must be specified which version prevails.
The BANK does not finance expenses for services provided by consultants who, in its opinion, have not been selected in accordance with the procedures of the Loan Agreement, and will cancel the portion of the Loan allocated to services provided by consultants who have not been properly selected. In addition, the BANK may exercise other remedies contemplated in the Loan Agreement. The BANK’s policy requires that both consultants and Borrowers, under contracts financed with the BANK’s ODA Loans and other Japanese ODA, observe the highest standards of ethics during the procurement and execution of such contracts. In accordance with this policy, the BANK:
(a) will reject a proposal evaluation if it determines that the consultant considered the best qualified has engaged in corrupt or fraudulent practices in competing for the contract in question; (b) will consider a consultant ineligible, for a period determined by the BANK itself, to obtain a contract financed with the BANK’s ODA Loans, if it determines at any time that the consultant has engaged in corrupt or fraudulent practices in competing for, or in executing, another contract financed with the BANK’s ODA Loans or other Japanese ODA.
(1) The first step in contracting a consultant is the agreement between the BANK and the Borrower on the need for the use of a consultant, the Terms of Reference for its services, the type of consultant to be employed, and the approximate amount of funds required for the consulting services.
(2) The Terms of Reference must describe the scope of the consulting services in as detailed a manner as possible, especially concerning alternative solutions that the consultant must analyze in the course of its work and regarding the authority to be delegated to the consultant to act on behalf of the Borrower. In addition, the Terms of Reference shall provide information on the project background, the availability of pertinent basic data*, the national and/or other standards, and specifications to be used for the project design, and the conditions under which the work will be carried out.
(See Annex I) (3) In the case of projects classified as Category A or Category B according to the JBIC Environmental Guidelines for ODA Loans*, consulting services related to environmental considerations, such as those described in Section 2.01, shall be included in the scope. (See Annex I).
(1) Once the BANK and the Borrower have agreed on the Terms of Reference for the required consulting services, as described in Paragraph (2) of Section 3.02, the Borrower shall prepare a Short List of Consultants who will be invited to submit proposals, taking into account the factors mentioned in Parts I and II. (See Annex II) (2) Said Short List should normally contain no fewer than three and no more than five consultants. Generally, there are few advantages in inviting more than five consultants to submit proposals, since if the number of proposals is larger, some consultants may lose interest and the quality of the proposals obtained may be affected.
(3) In the event that the Borrower finds difficulty in compiling a satisfactory Short List of qualified consultants based on the information at its disposal, its past experiences, and other sources, the BANK, at the Borrower’s request, shall make available information concerning consultants, from which the Borrower may compile its own Short List.
(1) The Letter of Invitation (see Annex III) shall request the consultants to cover at least the points specifically mentioned in the Terms of Reference, and shall clearly indicate that the selection of the first consultant to be invited to negotiate the contract will be made solely on the basis of the ranking of proposals evaluated regarding the qualifications of the firms and their personnel for the work, as well as the quality of the proposals regarding approach and methodology, and that therefore the consultants shall not include in their proposals any information on the estimated costs or financial terms of their services.
The Letter of Invitation shall also stipulate the details of the selection procedure to be followed, including the technical evaluation categories and an indication of the weight to be given to each.
(2) It is advisable that the consultants invited to submit their proposals have the opportunity to visit the country and the project area before submitting their proposals; therefore, as a rule, the invitation should allow a period of 45 to 60 days from the date of dispatch of the Letter of Invitation to the deadline for the submission of proposals.
(3) The Letter of Invitation shall also request that the consultants notify the Borrower by cable within a specified period of time whether or not they intend to submit proposals.
After preparing the Short List, the Letter of Invitation, and the Terms of Reference in accordance with the provisions of the preceding sections, the Borrower shall invite all consultants on the Short List to submit proposals by sending them the Letter of Invitation (attaching the Terms of Reference).
(1) The proposals received by the Borrower in response to the invitation must be evaluated in accordance with the criteria stipulated in the Letter of Invitation. Such criteria normally include:
(a) the general experience of the consultant and its record in the field covered by the Terms of Reference; (b) the adequacy of the proposed approach, methodology, and work plan; and (c) the experience and background of the staff members to be assigned to the work.
(2) The relative weight of the three factors mentioned above varies according to the type of consulting services to be performed, although in the overall evaluation of proposals, greater weight should normally be given either to the qualifications of the personnel to be assigned to the project or to the approach and methodology, rather than to the firm’s fame or reputation.
(3) To evaluate the qualifications of the personnel to be assigned to the project, their curricula vitae shall be analyzed based on the following three criteria:
(a) General qualifications (education, length of experience, types of positions held, duration of service with the firm, etc.); (b) Suitability for the project (experience in performing the duties to be assigned to them on the project); (c) Familiarity with the language and conditions of the country in which the work will be carried out, or experience in similar environments.
(4) For the evaluation of proposals, the Borrower shall use numerical ratings and prepare an evaluation report including a summary evaluation sheet (according to the model in Annex IV) as soon as possible. Said evaluation report should normally contain detailed information on the following items, supplementing the summary evaluation sheet:
(a) Selection Committee or other similar organization, if one exists, responsible for the evaluation, as well as the national laws, ordinances, and rules governing the establishment and/or operation of said Committee or similar institution; (b) Selection criteria and relative weight distribution, with reasons why each criterion is adopted and the basis on which the weight assignment is decided; (c) Rating: reasons for the value assigned to each item for each firm.
(1) After completing the evaluation of the proposals, the Borrower shall invite the best-qualified consultant to begin negotiations regarding the terms (including costs and financial terms) of the contract between both parties.
(2) If both parties fail to reach an agreement regarding the contract within a reasonable period of time, the Borrower shall terminate negotiations with the first consultant and proceed to invite the consultant evaluated as second to begin negotiations. The Borrower shall consult with the BANK before taking this measure. This procedure shall be followed until an agreement is reached with a consultant.
(3) Although some flexibility in work plans, staffing assignments, and the major work inputs previously agreed upon as appropriate for the assignment is envisaged, they shall not be materially modified to meet the budget.
Immediately after completing negotiations with the selected consultant, the Borrower shall promptly notify the other consultants on the Short List that they were not selected.
PART IV CONTRACT
The contract between the Borrower and the consultant shall be prepared in such detail as to adequately protect the interests of both signing parties. As a general rule, the contract shall contain, among others, the clauses indicated below.
The contract shall describe in detail the scope and duration of the project and the services to be provided by the consultant.
The contract shall specify the start and completion dates of the consulting services.
The contract shall include a clause specifying the conditions under which it will be valid.
(1) The contract shall clearly describe the responsibilities of the Borrower and the consultant, as well as the relationship between them.
(2) In the event that the consultant is a joint venture or other form of association of firms, the contract shall clearly specify whether both/all will be "jointly and severally" responsible for the performance of the contractual obligations, or whether one firm will be "solely" responsible; in addition, it shall indicate which firm will act on behalf of the joint venture (or other type of firm association) in all its dealings and communications with the Borrower.
The contract shall clearly indicate the total amount, or "ceiling", of the fees to be paid to the consultant.
(1) The personnel costs and fees necessary for fulfilling the contract obligations should generally be expressed in terms of fixed "person-month rates" for each expert the consultant will provide. Such "person-month rate" shall include the employee’s base salary, the firm’s overhead costs (including financial benefits, social security, or other benefits payable to, or for, the staff member, such as paid vacations, sick leave pay, insurance, etc.), and the firm’s fee.
(2) For extended periods of field services in the country in question, the contract may also provide for overseas allowances, in addition to the "person-month rate" mentioned in paragraph (1) of this section.
(3) The contract shall clearly stipulate the number of working or calendar days of vacation and sick leave to which each staff member will be entitled.
(4) In addition to the personnel costs described in paragraph (1) of this section, the contract shall normally provide for reimbursement at actual cost or at an agreed "unit cost" for travel, equipment, and other items necessary for the consulting services covered by the contract.
(5) The contract shall normally include a separate sum for contingencies, such as unforeseen work or cost increases, which the consultant, however, may not use without the Borrower’s written authorization.
The BANK’s ODA loans are expressed in Japanese Yen, and costs and fees should normally be expressed in Japanese Yen. However, when necessary, another internationally traded currency may also be used. In addition, any amount the consultant expects to spend in the Borrower’s country may be stated in the currency of that country.
(1) The contract shall specify the payment terms and methods, the currency or currencies in which payments will be made, and the exchange rate for any currency conversion.
(2) Payments to the consultant shall be scheduled so as to approximately cover its expenses (i.e., the consultant should not receive payments substantially in advance of its actual expenses for its services, nor should it wait a long time for payments for services already performed). In accordance with this concept, the contract may, when appropriate, provide for the following:
(a) an advance payment to the consultant upon the contract’s effectiveness, covering approximately its initial reimbursable expenses; (b) retention of the final payment until all services covered by the contract have been completed or certain performance guarantees have been issued.
In case (b) above, however, the final payment shall be made within the disbursement period stipulated in the Loan Agreement.
The contract shall stipulate the ownership of the equipment to be acquired, and the manner of transfer of equipment remaining after the completion of the services.
The contract shall clearly specify the services and facilities to be provided by the Borrower, such as counterpart staff, maps, aerial photographs, data and statistics, office space, accommodation, vehicles, and equipment.
The contract shall clearly indicate the limits of the privileges and immunities granted to the consultant, especially in relation to visas and work permits, personal and corporate income taxes, and other levies, customs duties, etc.
The contract shall require the consultant to promptly inform the Borrower and the BANK of any event or condition that could delay or prevent the completion of a major part of the project according to the agreed schedule, and indicate what steps should be taken to address such a situation.
The contract shall specify the scope, number, type, and frequency of the reports that the consultant shall submit to the Borrower.
The contract shall specify whether the copyright of the documents prepared by the consultant under the contract will be retained by the consultant or by the Borrower.
The contract shall stipulate that it may only be modified by written agreement between both parties.
The contract shall clearly establish:
(1) the conditions of force majeure that would release the consultant, temporarily or permanently, from all or part of its contractual obligations; (2) the procedures the consultant must follow regarding notification and determination of any such conditions; (3) the rights and obligations of the Borrower and the consultant (for example, regarding post-termination payments, including, if appropriate, reimbursement of mobilization expenses) in situations of force majeure.
The contract shall include a clause specifying in detail under what conditions either party may terminate the contract, and a clause stipulating the procedures to be followed by the party wishing to terminate the contract. The contract shall clearly indicate the rights and obligations of both parties in the event of its termination.
(1) The contract shall establish the procedures to be followed in the event of a dispute arising between the Borrower and the consultant in relation to the contract.
(2) For the settlement of such disputes, the BANK recommends resorting to impartial institutions specializing in such matters, such as the International Chamber of Commerce.
(3) In the event that the laws of the Borrower’s country prohibit resorting to such specialized arbitration institutions, the contract shall include alternative clauses for the settlement of disputes between the Borrower and the consultant.
The contract shall stipulate the laws that shall govern its interpretation and performance.
The contract shall be drawn up in the English language. In the event another language is used in the contract, a complete English version shall be annexed thereto, and it shall be stipulated which version shall prevail.
(The Terms of Reference shall include the items mentioned below. The relevance of each item will depend on the nature of the project.)
1. Project Information (1) Background - history of the project’s evolution and reason(s) for the need to implement the project.
(2) Project location and information on the surrounding area. (3) Stage reached in project preparation and summary of the results of previous studies.
(4) Executing agency.
(5) Details of the main problem areas.
2. Other Relevant Information (1) Technical information - availability of pertinent basic data, technical standards or specifications to be applied, etc.
(2) Relevant laws and regulations.
(3) Related projects.
3. General Terms of Reference (1) Objectives.
(2) Scope of consulting services - categories of consulting services to be provided, nature of the consulting work (the latter in detail, including equipment and materials to be provided by the consultant). In the case of projects classified as Category A or B in line with the JBIC Environmental Guidelines for ODA Loans (8), consulting services related to environmental considerations, such as those described in Section 2.01, shall be included.
(8 See Section I.2 of the JBIC Environmental Guidelines for ODA Loans ("Project Classification") and Annex ("Criteria for Project Classification").
(3) Nature and limits of the responsibilities the consultant will assume.
(4) Estimated time required to complete a) the project, b) the consulting work; number and qualifications of the experts; estimated person-months according to the Borrower’s budget.
(5) Scope, number, type, and frequency of the reports to be submitted by the consultant.
(6) Other necessary provisions related to the obligations between the Borrower and the consultant that are stipulated in the Guidelines for the Employment of Consultants under JBIC ODA Loans (e.g., Section 2.02 (3), Section 2.07).
4. Specific Terms of Reference (1) Methodological details related to the above-mentioned consulting services.
(2) Provisions for the review of previous studies and for possible additional studies.
5. Services and Facilities to be Provided by the Borrower
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Date: _____________ Ref. No.:___________ To: __________________________________ (Name and address of consultant) Project________________________________ Gentlemen:
1. (name of the Borrower/Executing Agency) (hereinafter referred to as "the Government"(9)) is planning (brief description of the project), in (name of the project area).
(9 In most cases equates to the Borrower under these Guidelines. When the Borrower is represented by an organization other than a Government, the wording shall differ accordingly.)
The Government intends to contract a consulting firm to provide the services for (categories of consulting services) of the project.
2. (A considerable portion of) the cost of the consulting services will be financed with resources from an ODA loan granted for said project by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK"), and the consulting firm to be contracted will be selected in accordance with the Guidelines for the Employment of Consultants by JBIC ODA Borrowers.
3. Your firm is one of the (number of invited consultants) consulting firms that have been invited to submit a proposal for consulting services. For more detailed information regarding the services, please refer to the Terms of Reference attached hereto.
4. Your firm may undertake the work in association with other consultants (not necessarily selected from among those invited to submit a proposal). In such a case, the proposal shall clearly indicate whether the associates will be "jointly and severally" responsible for performance under the contract for the consulting services, or whether one of the associates will be "solely" responsible, also indicating which associate will act on behalf of the association in all its dealings and communications with the Government.
5. Your proposal shall cover in detail the following points:
(1) The background and experience of the firm (and, if any, of the associated firms), including a list of previous and current work of a nature similar to that of this project in the last five years.
(2) The general approach and methodology you propose for carrying out the services indicated in the Terms of Reference, including all detailed information you deem pertinent, along with:
(a) A detailed general work program and a bar chart showing the duration and scheduling of assignments for each expert or other staff member employed on the project; (b) An estimate of the total number of person-months required; and (c) A clear description of the responsibilities of each expert staff member within the general work program.
(3) The name, background, and professional experience of each expert assigned to the project, with particular reference to their experience in work of a nature similar to the proposed assignment. You are required to cover at least the points specifically mentioned in the Terms of Reference and in this letter.
6. The selection of the first consulting firm to be invited to negotiate a contract shall be made solely on the basis of the ranking of proposals evaluated with respect to the qualifications of the consulting firms and the experts to be assigned to the work, as well as the quality of the proposals regarding approach and methodology. Therefore, you must not include in your proposal information on estimated costs or the financial terms of your services. The details of the selection procedure to be followed, including the technical evaluation categories and an indication of the weight to be attributed to each, are set out in the attached sheet.
7. Please note that if you combine the functions of consultant with those of contractor and/or manufacturer, you must include in the proposal all pertinent information regarding such a relationship, along with an undertaking to limit your role to that of consultants and to disqualify yourselves, your associates/affiliates, and/or parent firms from working in any capacity other than consulting on this project. Furthermore, you are required to state in the proposal that you will ensure that the specifications and designs recommended by you are impartial and in no way restrict competitive bidding.
If, in connection with the performance of the consulting services, you intend to borrow, or temporarily employ, personnel from contractors and/or manufacturers, you must include in your proposal all pertinent information regarding such personnel. In such a case, you will be deemed acceptable only if such contractors and/or manufacturers disqualify themselves from roles within the scope of the project other than that of consultants.
8. The BANK requires that consulting firms, as well as the Government, under contracts financed with BANK ODA Loans or other Japanese ODA, observe the highest ethical standards during the procurement and execution of such contracts.
In accordance with this policy, the BANK:
(a) will reject an evaluation of proposals if it determines that the consultant considered the best-ranked has engaged in corrupt or fraudulent practices in competing for the contract in question; (b) will consider a consultant ineligible, for a period to be determined by the BANK itself, to be awarded a contract financed with BANK ODA Loans, if it determines at any time that the consultant has engaged in corrupt or fraudulent practices in competing for, or in executing, another contract financed with BANK ODA Loans or other Japanese ODA.
9. We would appreciate your notifying us by cable no later than (_____ ____) whether or not you intend to submit a proposal. Your cable should be addressed to (_______).
10. You are required to send (____) copies of your proposal to (___ _____) no later than (______).
11. After the evaluation of all proposals, the consulting firm that submitted the proposal ranked first (10) will be invited to discuss financial and other terms for the negotiation of a contract.
(10) The phrase "with the consent/approval of the BANK" shall be inserted when appropriate.
12. Should you require additional information, we will do everything within our power to provide it. Requests for additional information, or any delay in fulfilling such requests, however, shall in no way affect the obligation of the invited firms to submit their complete proposals by the due date indicated above.
Sincerely, ___________________ (Name of the Government) (Authorized Signature) Att.: Terms of Reference
(14) The firm with the highest number of points, all other factors being equal, shall be ranked first.
(5) Rating categories shall be: Excellent 0.9, Good 0.8-0.89, Average 0.6-0.79, Below Average 0.4-0.59, Unsatisfactory 0.0-0.39.
COMMITMENT PROCEDURE UNDER JBIC ODA LOANS October, 1999
(1) The "Commitment Procedure for ODA Loans" is applicable to ODA Loans provided by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") pursuant to Section (1), Paragraph 2, Article 23 of THE JAPAN BANK FOR INTERNATIONAL COOPERATION LAW (hereinafter referred to as "the Loan").
(2) Payment for the import of goods and services is generally processed through a commercial letter of credit, under which a commercial bank operating in a supplying country makes payment to the supplier against documents specified in the letter of credit and is reimbursed from funds made available by a buyer through its bank.
(3) When such payment to the supplier is eligible for financing under the loan, the buyer may stipulate in the letter of credit issued by a designated foreign exchange bank (hereinafter referred to as "the Issuing Bank") that the supplier's bank (hereinafter referred to as "the Supplier's Bank") be reimbursed by a designated Japanese foreign exchange bank in Tokyo (hereinafter referred to as "the Japanese Bank").
(4) The Japanese Bank must obtain the reimbursement funds from the BANK through a guarantee from the BANK. Such guarantee, wherever it is issued, takes the form of a letter of commitment from the BANK to the Japanese Bank (such guarantee shall hereinafter be referred to as "L/COM") through which the BANK undertakes to disburse, under certain conditions, the amount to be paid by the Japanese Bank under and in accordance with the specified irrevocable letter of credit (hereinafter referred to as "L/C").
(1) A borrower of the Loan (hereinafter referred to as "the Borrower"), its designated authority, or any other buyer in the territories of the Borrower shall request the Issuing Bank to issue the L/C.
(2) The Issuing Bank shall issue the L/C in the name of and under the authorization of the Borrower in favor of the supplier through the Japanese Bank substantially in accordance with the attached Form JBIC-LC1 for goods and Form JBIC-LC2 for services, respectively. The Japanese Bank shall send a copy of the L/C to the BANK in order to obtain the L/COM from the BANK.
Note: When the Issuing Bank is a designated foreign exchange bank in Tokyo, the Issuing Bank is identical to the Japanese Bank.
(3) When the BANK finds that the L/C is in accordance with and in conformity with the stipulations of the Loan Agreement between the BANK and the Borrower, as well as with the terms of the contract between the Borrower and the supplier, the BANK shall, upon receipt of an amount equal to one-tenth of one percent (0.1%) as a service charge from the Borrower, issue the L/COM to the Japanese Bank in accordance with the attached Form JBIC-LOC.
(4) After receiving the L/COM, the Japanese Bank shall send the L/C, which shall become effective when the Japanese Bank acknowledges receipt of the L/COM from the BANK, to the supplier through the Supplier's Bank. The Japanese Bank, simultaneously, shall send a copy of the L/COM to the Issuing Bank when it is different from the Japanese Bank, or to the Borrower or its designated authority when the Issuing Bank is identical to the Japanese Bank.
(1) The Supplier's Bank shall pay the Supplier in accordance with the L/C and request the Japanese Bank to reimburse the funds by sending a set of documents specified in the L/C. Simultaneously, (2) After receiving such request, the Japanese Bank shall submit to the BANK the Request for Disbursement in accordance with the attached Form JBIC-RFD (1).
(3) The BANK shall, within the following fifteen (15) business days of receipt of the Request for Disbursement, disburse the requested amount to the Japanese Bank in accordance with the provisions of the L/COM. Consequently, the Japanese Bank shall pay the Supplier's Bank.
(1) In the event that the referred contract is fixed and payable in a currency other than Japanese Yen, the attached Forms JBIC-LC1 and JBIC-LC2 shall apply with the pertinent changes, and the attached Form JBIC-RFD (2) for the Request for Disbursement must also be applied.
(2) The amount of the L/COM must be in Japanese Yen equivalent to the amount in the referred currency of the L/C converted at the T/T selling rate of the Japanese Bank two (2) business days before the date on which the L/COM was issued.
(3) The amount stated in the Request for Disbursement must be the equivalent in Japanese Yen converted at the T/T selling rate of the Japanese Bank two (2) business days before the day of disbursement.
(4) When the amount of the L/C is not fully covered by the amount of the L/COM due to exchange rate fluctuation, the amount not covered by the L/COM may be covered, within the limits of the Loan funds, through an amendment to the L/COM. In the event that the amount of the L/C cannot be fully covered in this manner, the Borrower shall assume the amount not covered by the L/COM.
(1) Care must be taken to ensure the conclusion of an agreement regarding the letter of credit and the disbursement method between the Japanese Bank and the Issuing Bank, the Borrower, or its designated authority, immediately after the signing of the Loan Agreement.
(2) All bank charges or fees accrued in connection with the aforementioned transactions shall be borne by the Borrower.
(3) Claims and disputes relating to the aforementioned L/C shall be settled between the parties involved, and such claims and disputes shall not release the Borrower from any obligation incurred in connection with the present Loan Agreement.
(Form JBIC-LC1) IRREVOCABLE LETTER OF CREDIT Date:
L/C No.:
To: ____________________ This Letter of Credit has been issued in ____________________ conformity with Loan (Name and Address of the Agreement No.________ dated _____ Advising Bank) between (Borrower) and the JAPAN BANK FOR INTERNATIONAL COOPERATION, Tokyo, Japan.
Dear Sirs:
We request you to advise (Name and address of the Supplier) that we have opened our irrevocable credit No. __________ in their favor for the account of (Name of Buyer) for a sum or sums not exceeding an aggregate amount of ____________________(Say in Yen) available through beneficiary's sight drafts for the full invoice value drawn on (the designated Japanese foreign exchange bank in Tokyo), accompanied by the following documents:
Signed commercial invoice in Packing List in Certificate of Origin in Full set of clean on board bills of lading, made out to order, unendorsed and marked "Freight " and "Notify" (Other documents) evidencing shipment of (Brief description of goods in reference to Contract No. ______) from __________ to __________________ Partial shipments are ____________ permitted. Transshipment is ___ ____________ permitted.
The Bill of Lading (B/L) must be dated no later than (Month, Day, Year).
All drafts must be presented to the drawee no later than (Month, Day, Year).
All drafts and documents under this credit must be marked "Drawn from (Name of Issuing Bank), irrevocable credit No. _______ dated (Month, Day, Year), and Import Reference No(s). (If any)".
This credit is not transferable.
We hereby agree that all drafts drawn under and in compliance with the terms of this credit shall be duly honored upon presentation and delivery of the documents to the drawee.
Unless expressly stated otherwise, this credit is subject to the "Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication, No. 500".
Special instructions to the negotiating bank:
1.- This credit shall become effective when (the designated Japanese foreign exchange bank in Tokyo) acknowledges receipt of the Letter of Commitment from the JAPAN BANK FOR INTERNATIONAL COOPERATION in Tokyo) in accordance with the aforementioned Loan Agreement.
After obtaining reimbursement from the JAPAN BANK FOR INTERNATIONAL COOPERATION in accordance with the stipulations of the Letter of Commitment, (the designated Japanese foreign exchange bank in Tokyo) undertakes to remit the amount of the drafts according to the instructions issued by you.
2.- You must send the drafts and a complete set of documents to (the designated Japanese foreign exchange bank in Tokyo) together with a certificate stating that the remaining documents have been sent by airmail directly to us.
3.- All bank charges for this credit are for the account of the (Borrower) in accordance with the mentioned Loan Agreement.
Yours faithfully; (Name of Issuing Bank) (Authorized Signature) TERMS OF PAYMENT These terms of payment constitute an integral part of our Letter of Credit No. _________________.
I. Initial Payment
Amount: ________________________ being _________% of the total contract price.
Documents required:
Latest date of presentation:
II. Intermediate Payment (if any)
Amount: _________________________ being __________% of the total contract price.
Documents required:
Latest date of presentation:
III. Payment against Shipping Documents
Amount: ___________________________ being __________% total contract price.
Note: This attached sheet is not required in case of full payment against shipping documents.
(Form JBIC-LC2) Irrevocable Letter of Credit Date:
L/C No.:
To: ____________________ This Letter of Credit has been issued in _________________________ conformity with Loan (Name and Address of the Agreement No. ________ dated _____ Advising Bank) between (Borrower) and the JAPAN BANK FOR INTERNATIONAL COOPERATION, Tokyo, Japan.
Dear Sirs, We request you to advise (Name and address of the Supplier) that we have opened our irrevocable credit No. _______ in your favor for the account of (Name of Buyer) for a sum or sums not exceeding an aggregate amount of ____________ (Say in Yen ________) available through beneficiary's sight drafts for the full value Certified drawn on (the designated Japanese foreign exchange bank in Tokyo).
To be accompanied by the required documents, in accordance with the Payment Schedule set forth herewith in relation to (Contract No._________ related to _____________ Project).
Drafts must be presented to the drawee no later than (Month, Day, Year).
All drafts and documents must be marked "Drawn from (Name of Issuing Bank) irrevocable credit No. __________ dated (Month, Day, Year).
This credit is not transferable.
We hereby agree that all drafts drawn under and in compliance with the terms of this credit shall be duly honored upon presentation and delivery of the documents to the drawee.
Unless expressly stated otherwise, this credit is subject to the "Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication, No. 500".
Special instructions to the negotiating bank:
1. This credit shall become effective when (the designated Japanese foreign exchange bank in Tokyo) acknowledges receipt of the Letter of Commitment from the JAPAN BANK FOR INTERNATIONAL COOPERATION) in accordance with the aforementioned Loan Agreement.
After obtaining reimbursement from the JAPAN BANK FOR INTERNATIONAL COOPERATION in accordance with the stipulations of the Letter of Commitment, (the designated Japanese foreign exchange bank in Tokyo) undertakes to remit the amount of the drafts in accordance with the instructions issued by you.
2. You must send the drafts and a complete set of documents to (the designated Japanese foreign exchange bank in Tokyo) together with a certificate stating that the remaining documents have been sent by airmail directly to us.
3. All bank charges for this credit are for the account of the (Borrower) in accordance with the mentioned Loan Agreement.
Yours faithfully; (Name of Issuing Bank) (Authorized Signature) PAYMENT SCHEDULE This payment schedule constitutes an integral part of our Letter of Credit No. _________________
I. Initial Payment
Amount: ________________________ being _________% of the total contract price.
Documents required: Beneficiary's declaration.
Latest date of presentation:
II. Advance Payment
Aggregate amount: ______________ being __________% of the total contract price to be paid as follows:
Amount Payable Latest Date of Presentation _____________ _______________________ First Installment: _____________ ________________ Second Installment: ____________ ________________ Documents required: a copy of the Performance Declaration issued by (Borrower or its designated authority), form attached hereto.
(Form JBIC-LOC) Date:
Commitment No.
Gentlemen:
LETTER OF COMMITMENT Reference: Letter of Credit No.
for in favor of We hereby irrevocably undertake to reimburse you for a sum or sums not exceeding ___________________ against a Request for Disbursement, accompanied by a copy of the draft drawn by the beneficiary, within fifteen (15) days of our receipt of the Request.
This Letter of Commitment shall expire on It is further understood that for reimbursing you in accordance with this Letter of Commitment, we shall in no way be obligated or held liable for acts or omissions of the issuing bank, the negotiating bank, the beneficiary, and/or any other party related to the mentioned Letter of Credit concerning issuance, negotiation, payments, or other related matters.
Form JBIC-RFD(1) Request for Disbursement (1) Date:
Ref. No.
To : JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Director, Loan Administration, Division 2 Re: Your Loan Agreement No.____ Country: ________ Letter of Commitment No. ___________ Our Letter of Credit No. _________ Gentlemen:
We have received the documents relating to the supply of _____ (quantity and description of goods and services according to the L/C) and have found them in order and in conformity with the terms of said Letter of Credit.
In accordance with the above Letter of Commitment, we hereby request you to disburse to us from the mentioned Loan Agreement the following: a) Disbursement Amount: ______________ (In Yen) b) Disbursement Date:
(Name of the Japanese Bank) (Authorized Signature) Attachment:
Form JBIC-RFD(2) (U.S. Dollars) Request for Disbursement (2) Date:
Ref. No.
To : JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Director, Loan Administration, Division 2 Re: Your Loan Agreement No. _______ Country: ________ Letter of Commitment No. _______________ Our Letter of Credit No. _____________ Gentlemen:
We have received the documents concerning the supply of ____ (quantity and description of goods and services according to the L/C), the same were found in order and in conformity with the terms of said Letter of Credit.
In accordance with the above Letter of Commitment, we hereby request you to disburse to us from the mentioned agreement the following:
- a)Disbursement Amount: _________ (In Yen) b) Draft Amount (payable according to said Letter of Credit):
- c)Exchange Rate:
- d)Disbursement Date:
(Name of the Japanese Bank) (Authorized Signature) ATTACHMENT:
PERFORMANCE DECLARATION Date:
Ref. No.
To: ___________________________ (Name and address of the Supplier) Re: Letter of Credit No. ___________________ Dated ___________________________ Issued by __________________________ for ¥ _______ in favor of ______________ concerning the _________________ Project under Loan Agreement No.___________.
I, the undersigned, representing the (Borrower), hereby issue a Performance Declaration to authorize _________________ _____ to receive the sum of __________________(Yen _____________ Only) from the JAPAN BANK FOR INTERNATIONAL COOPERATION in accordance with the Terms of Payment stipulated in Contract No. _______, dated _________, between _______ and _________________.
(Name of Borrower) (Authorized Signature) Special Instruction:
The details of the actual performance shall be mentioned on an additional sheet to this document.
Reimbursement Procedure under JBIC ODA LOANS October, 1999 1. The "Reimbursement Procedure for ODA Loans" is applicable to ODA Loans provided by the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") pursuant to Section (1), Paragraph 2, Article 23 of THE JAPAN BANK FOR INTERNATIONAL COOPERATION LAW (hereinafter referred to as "the Loan").
2. This procedure must be followed in cases where expenses, eligible for BANK financing, have already been incurred.
The Borrower must request the BANK to make a reimbursement for a sum not exceeding the actual amount paid by the buyer by sending to the BANK a Request for Reimbursement in accordance with the attached Form JBIC-RFR. In principle, each request shall be accompanied by the following documents:
(a) Payment Summary Sheet in accordance with Form JBIC-SSP (b) Supporting Documents evidencing each payment and its use, as stipulated in the referred Loan Agreement.
3. When the BANK finds the Request for Reimbursement to be in order and in conformity with the stipulations of the Loan Agreement, the BANK shall, upon receipt of an amount equal to one-tenth of one percent (0.1%) of the amount to be reimbursed as service charges from the Borrower, make the reimbursement in Japanese Yen. The Reimbursement shall be made within fifteen (15) business days from the date of receipt of the Request by paying into a non-resident Yen account of the Borrower, which must be opened in advance by a designated foreign exchange bank in Tokyo, as stipulated in the Referred Loan Agreement and in accordance with the applicable laws and regulations of Japan.
4. When the currency used for the actual payment to the supplier is not Japanese Yen, the amount stipulated in the Request for Reimbursement shall be in Japanese Yen converted at the T/T buying rate quoted by a foreign exchange bank authorized in the territory of the Borrower as stipulated in the referred Loan Agreement on the business day immediately preceding the day on which the Request for Reimbursement is made, or in another currency other than Japanese Yen.
In the first case, the amount paid in currency and the exchange rate used for conversion to Japanese Yen must be described in the Payment Summary Sheet according to Form JBIC-SSP. In the second case, the currencies that may be used for the Request must be stipulated in the referred Loan Agreement, and the reimbursement amount in Japanese Yen shall be calculated at the T/T selling rate quoted by the designated foreign exchange bank in Tokyo two business days before the reimbursement is made.
(Form JBIC-RFR) Request for Reimbursement Date:
Loan Agreement No.:
Request Serial No.:
To : JAPAN BANK FOR INTERNATIONAL COOPERATION Tokyo, Japan Attention: Director General, Development Assistance Department Gentlemen:
1. Pursuant to Loan Agreement No._________ dated _________ between the JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as "the BANK") and (Borrower), the undersigned requests reimbursement under the Loan Agreement for the sum of ________________ (in ________________ currency) as reimbursement of expenditures as described in the attached Payment Summary Sheet(s).
2. The undersigned has not previously requested reimbursement of any amount of the Loan for the purpose of reimbursing or meeting the expenditures described in the attached Summary Sheet(s). The undersigned has not obtained and will not obtain funds for such purposes from the resources of any other loan, credit, or grant available to the undersigned, except short-term credits or loans, if any, arranged in advance of the reimbursement requested herein, to be repaid therefore with the reimbursed funds hereunder, and any charges, commissions, or interest paid or payable under such advance short-term credits are not included in the amount requested herein for reimbursement.
3. The undersigned certifies that:
- a)the expenditures intended to be reimbursed hereby were made for the purposes specified in the Loan Agreement.
- b)the goods and services purchased with these expenditures have been procured in accordance with the applicable procurement procedures agreed upon with the BANK in conformity with said Loan Agreement and the costs and terms of purchase are, therefore, reasonable; c) said goods and services were or will be supplied by the supplier(s) specified in the attached Summary Sheet(s) and were or will be procured in (or, in the case of services, supplied from) the eligible source country(ies) for the BANK loan.
4. Please reimburse the amount requested herein by paying into your non-resident Yen account of ____________________ with ____________ 5. (Borrower) (name and address of a designated foreign exchange bank in Tokyo).
This request consists of _________ page(s) and _____________ signed summary sheet(s) numbered (number) (number), with their supporting documents.
(Name of Borrower) (Authorized Signature)" OFFICIAL TRANSLATION I, Miguel Brenes Gómez, Official Translator of the Ministry of Foreign Affairs and Worship of the Republic of Costa Rica, appointed by Executive Agreement Number 180-96 DJ, of the first of July, 1996, published in "La Gaceta" number 174 of September 12, 1996, CERTIFY that the document to be translated, 'LOAN AGREEMENT for Metropolitan San José Environment Improvement Project, Between THE JAPAN BANK FOR INTERNATIONAL COOPERATION (JBIC) and THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA', from English to Spanish, reads as follows: ------------------------------ (NOTE FROM THE TRANSLATOR: The translation commissioned by Acueductos y Alcantarillados, an institution belonging to the Republic of Costa Rica, consists of (a) a Special Power of Attorney granted by the Governor of the JAPAN BANK FOR INTERNATIONAL COOPERATION, Mr. Kyosuke Shinozawa, to Mr.
Toru Tokuhisa, Resident Executive Director of that Bank for the Americas, authorizing him to sign and deliver on behalf of the Japan Bank for International Cooperation, a Loan Agreement for the improvement of the environment of the metropolitan area of San José agreed between THE JAPAN BANK FOR INTERNATIONAL COOPERATION and THE GOVERNMENT OF COSTA RICA, and (b) the contract itself signed on March 31, 2006. The document contains details on the Loan granted, payment of interest, conditions for project administration, and procedures for procurement, disbursements, transfers, and payments to be made within the limits of the Loan and its conditions. The format of the original is preserved. (Translation begins):
JBIC JAPAN BANK FOR INTERNATIONAL COOPERATION 4-1 OHTEMACHI 1-CHOME CHIYADA-KU, TOKYO 00-8144, JAPAN Date: March 29, 2006 Ref. No.: D.A. (4)/2005-300 SPECIAL POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS THAT:
I, Kyosuke Shinozawa, Governor of the Japan Bank for International Cooperation, hereby certify that Toru Tokuhisa, Resident Executive Director for the Americas, is authorized to sign in my place and on behalf of the Japan Bank for International Cooperation, Loan Agreement No. CR-P4 for the Project for the Improvement of the Environment of the Metropolitan Area of San José agreed between the Japan Bank for International Cooperation and the Government of the Republic of Costa Rica.
(Signature) Kyosuke Shinozawa, Governor Loan Agreement No. CR-P4 LOAN AGREEMENT For Project for the Improvement of the Environment of the Metropolitan Area of San José between THE JAPAN BANK FOR INTERNATIONAL COOPERATION (JAPAN BANK FOR INTERNATIONAL COOPERATION-JBIC) and THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA Date March 31, 2006 Table of Contents