REQUEST FOR CONSULTANTS QUALIFICATIONS MCAN/CIF/RCQ 4A09008

Transcription

1 REQUEST FOR CONSULTANTS QUALIFICATIONS MCAN/CIF/RCQ 4A09008 Provision for External and Independent Consultancy Services in Areas of Environmental & Social Impact Assessment (ESIA)to all MCA-Namibia activities. MCA Namibia (MCA-N) requires the services of an individual consultant (hereinafter referred to as the Consultant ) to provide the services as stated in the subject above. Summary of Services: The objective of this Request for Consultants Qualifications is to procure the services of an experienced Consultant to (1) provide timely and comprehensive technical review of ESA documentation, (2) to provide required capacity building / training services in ESA related themes for range of compact stakeholders, and (3) to provide ESA environmental technical assistance, monitoring and evaluation services as needed. This document sets out the Terms of Reference for the external and independent consultancy services in the area of ESIA to all MCA-Namibia activities, through review of ESA documents, capacity building/training and technical assistance by way of monitoring and evaluation services as needed. Location: Windhoek Anticipated Start Date: November 2010 Duration of Assignment: 12 months, extendable to 45 months Before applying, interested Consultants should review the Terms of Reference attached hereto, which describe the assignment in detail. The required qualifications and experience of the Individual Consultant are indicated in the Terms of Reference (Attachment 1). The selection shall be carried out in accordance with the procedures for Selection based on the Consultants Qualifications set forth in Annex VI, Section 1.B. 3.7 of the MCA Namibia Procurement Rules (see the Procurement page on website for the Procurement Rules). The selected Consultant will be ultimately requested to submit combined technical and financial proposals for the assignment, which, together with the Consultant s EOI and the attached Form of Contract (Attachment 2), will be used for the negotiation of a fixed price contract between the Consultant and MCA Namibia. Application Procedure Interested individual consultants are requested to send their responses, which should include an expression of interest to be considered for the assignment, date of availability, an updated CV showing the minimum requirements described above and in compliance with the attached TOR, contact details (i.e., address, telephone and fax numbers, address, website, etc.), at least three references that can comment on individual consultant s related work experience, and any other relevant information. Responses in the standard MCA-N 1

2 Expression of Interest format (Forms 1 to 3 attached hereto) should be addressed to The Procurement Manager, MCA Namibia, Atlas House, c/o 117 Sam Nujoma Drive, Windhoek, Namibia. Interested Consultants can either submit their documents to: The Procurement Manager, MCA Namibia, Atlas House, 3 rd Floor Room Sam Nujoma Drive Windhoek, Namibia. Or they can send the documentation via to the following address: skandjavera@mcanamibia.org Deadline for submission of responses: 13h00, on 26 October

3 [Location, Date] Expression of Interest: Form 1 Mr. Johann Botha Director Procurement MCA Namibia Dear Sir, Re: Provision of External and Independent Consultancy Services in the Area of Environmental & Social Impact Assessment( ESIA)for MCA - Namibia Ref: MCAN/CIF/RCQ 4A09008 I, the undersigned, offer to provide the individual consulting services for the abovementioned assignment in accordance with your Request for Consultant s Qualifications dated [Insert Date] and this Expression of Interest. I am hereby submitting my Expression of Interest, which will be open for acceptance for a period of 60 (sixty) days. I hereby declare that all the information and statements made in this Expression of Interest are true and accept that any misrepresentation contained in it may lead to my disqualification. If negotiations are held during the initial period of validity of the Expression of Interest, I undertake to negotiate on the basis of my availability for the assignment. My Expression of Interest is binding upon me and subject to the modifications resulting from Contract negotiations, and I undertake, if my proposal is accepted, to initiate the consulting services related to the assignment not later than [insert the date on which you will be available to commence with the assignment] I understand you are not bound to accept any proposal that you may receive. Yours sincerely, Name and title of Signatory Address of Consultant 3

4 Expression of Interest: Form 2 Team Composition and Task Assignments Not used. 4

5 1. Name [Insert full name] 2. Date of Birth [Insert birth date] 3. Nationality Expression of Interest: Form 3 Curriculum Vitae (CV) [Insert nationality] 4. Education [Indicate college/university and other specialized education, giving names of institutions, degrees obtained, and dates of obtainment]. 5. Membership in Professional Associations 6. Other Training [Indicate appropriate postgraduate and other training] 7. Countries of Work Experience [List countries where the consultant has worked in the last ten years] 8. Languages [For each language indicate proficiency: good, fair, or poor in speaking, reading, and writing] Language Speaking Reading Writing 9. Employment Record [Starting with present position, list in reverse order every employment held by the consultant since graduation, giving for each employment (see format here below): dates of employment, name of employing organization, positions held.] From [year]: To [year]: Employer: Position(s) held: 10. Work undertaken that best illustrates capability to handle the tasks assigned: [Among the assignments in which the consultant has been involved, indicate the following information for those assignments that best illustrate his/her capability to handle the tasks listed in the TOR] Name of assignment or project: Year Location: Client: Main project features: Position held: Activities performed: 11. References: [List at least three individual references with substantial knowledge of your 5

6 work. Include each reference s name, title, phone and contact information. MCA Namibia reserves the right to contact other sources as well as to check references, in particular for performance on any relevant MCC-funded projects.] 12. Task assigned for this consultancy: [List specific task assigned to you for this consultancy. Also indicate whether you would act as team leader for the group] 13. Certification: I, the undersigned, certify that to the best of my knowledge and belief, this CV correctly describes me, my qualifications, and my experience. I understand that any wilful misstatement described herein may lead to my disqualification or dismissal, if engaged. I, the undersigned, hereby declare that I agree to participate in the above-mentioned assignment. I further declare that I am able and willing to work for the period foreseen in the above referenced Request for Consultant's Qualifications. Signature Date 6

7 1. TERMS OF REFERENCE Provision of External and Independent Consultancy Services in Areas of Environmental & Social Impact Assessments (ESIA) for MCA Namibia 1. Summary MCA Namibia (MCA-N) has embarked on a five year national development initiative (the Compact) that focuses on the education, tourism and agriculture sectors. All projects contain provisions for construction works, capacity building, management planning, policy and technical assistance. As per the Namibia Environmental Law and MCC s Environmental Guidelines, all Compact activities must be screened for possible impacts on the environment and must comply with MCC s Gender Policy and the World Bank Operational Policy on Involuntary Resettlement (OP4.12). Most activities require environmental and social impact assessments. The purpose of this TOR is to procure the services of an individual Environmental Assessment Consultant to assist MCA-N ESA to effectively carry out its environmental oversight mandate for the MCA-N Compact. 2. Background 2.1 The Millennium Challenge Corporation (MCC) The Millennium Challenge Corporation (MCC) was established in January 2004 as a United States government corporation to implement the Millennium Challenge Account (MCA). MCC s mission is to reduce poverty by supporting sustainable, transformative economic growth in developing countries, which create and maintain sound policy environments. MCC is designed to support innovative strategies and to ensure accountability for measurable results. For additional information on MCC please visit Namibia s Millennium Challenge Compact The MCA-N Compact, providing grant funding for public investments in Education, Tourism and Agriculture (livestock and indigenous natural products), was signed on 28 July 2008 between the Republic of Namibia and the US Government, acting through the MCC. An amount of US$304.5 million will be available for development in the target sectors, over and above current Government allocations and assistance from other development partners. The Goal of Namibia s Millennium Challenge Compact is to reduce poverty through economic growth in the Education, Tourism and Agriculture sectors. To accomplish the Compact Goal of increasing income, the MCA-N Programme aims to achieve the following objectives: i) Increase the competence of the Namibian workforce (knowledge, skills and attitude); and ii) Increase the productivity of agricultural and non-agricultural enterprises in rural areas. The Compact aims to improve the quality of education and training for the underserved populations, and attempts to capitalize on Namibia s comparative advantages to increase the incomes of the poor Namibians, predominantly in the northern areas of the country. 7

8 In Education, the Programme seeks to bring the quality of the work force closer to the requirements of industry and the labour market at large. This is in line with the aspirations of Vision 2030 and the 3 rd National Development Plan s strategic objective for productive and competitive human resource and institutions ; whose values informed the programming, content and activities of the Education and Training Sector Improvement Programme (ETSIP). The MCA-N Education Project contributes to Education and Training Sector Improvement Programme (ETSIP). It aims to improve the competency and knowledge of young Namibians by supporting new and innovative methods of learning in addition to the more traditional approaches to education and improve physical infrastructure for learning and teaching in schools, regional study and resource centres and Community Based Skills Development Centres. The Tourism Project seeks to bring the conservancies in high potential tourism areas into the mainstream of the tourism business, increasing the financial and in-kind benefits to rural conservancy members. Internationally-acknowledged best practice models for community-based tourism and community-based natural resource management underpin the Tourism Project. This is the first time in MCC history that a country programme includes tourism, acknowledging the sector s tremendous poverty alleviating potential in conservancy areas. The ENP will serve as a model for increased participation by the adjacent conservancies. The MCA-N Tourism Project will facilitate access to the Park for the conservancies around it through exclusive access concessions, to be awarded through the 2007 Concession Policy. The Agriculture Project comprises three main activities in livestock, land access and management and indigenous natural products. The Livestock Support Activity seeks to bring the marketing opportunities for farmers who live north of the Veterinary Cordon Fence closer to the opportunities farmers enjoy south of the Fence. The focus will be on improving veterinary services aimed at obtaining animal disease-free status for the Northern Communal Areas (NCA) in order to gain access to international markets. The accompanying public investment in rangeland management will improve access to grazing and farming practices. The overall objective is to increase the farmers cash income derived from large livestock and small stock farming in the NCA. Through the Land Access and Management Activity the Communal Land Boards, traditional authorities and other key stakeholders will be empowered to better manage the available resources. Increasing direct participation of the primary producers in the processes of value addition to raw, natural products such as Marula, Kalahari Melon Seed, Hoodia, Devil s claw and Ximenia is the key objective of the Indigenous Natural Products Activity. The value chain approach that the MCA-N Programme has adopted will ensure that the activities are responsive to the fast-changing market realities for natural products. At present, most of the revenue from selling products made of these valuable commodities is generated outside Namibia. The MCA-N Programme will facilitate an increased participation by the primary producers in the final processing, packaging and marketing of these products. Please visit for the detailed Project Descriptions. 2.3 The MCA-N Management Structure MCA-N is the accountable entity, responsible for the overall management of the Compact s implementation. MCA-N is a legal entity within the National Planning Commission (Office of the President) comprised of a Board and a Programme Management Unit. The MCA-N Board provides oversight and strategic guidance and is ultimately responsible for the Programme s success. The MCA-N Management Unit is responsible for the implementation of the Compact, including programme management, financial management and reporting, and coordination of monitoring and evaluation. The Programme is legally governed by the Compact and its supplemental agreements. For additional information please visit 8

9 3. Objective and Scope of Services The Objective of this RCQ is to provide the MCA-N ESA team with timely and regular technical assistance and support in area of environmental and social assessments for the benefit of the MCA-N Compact. The Consultant will work under the guidance and supervision of the MCA-N ESA team to provide technical assistance and support on ESA issues as needed and when requested. There are two groups of tasks that will be completed by the Consultant, which are discussed in the following section. Task Group 1: Provide timely and comprehensive technical review of ESA documentation The volume of documents that the MCA-N ESA team will need to review and approve is significant. Each project involves procurement actions for a range of services, and given MCA-N s tight implementation timeline of 5 years, many of these procurements are being launched and implemented concurrently. Each procurement in turn generates a series of documents and eventually a contract; each contract contains a list of deliverables that must be reviewed and approved. For a variety of reasons, documents often arrive en masse rather than being regularly staggered out over set time periods. A relatively short turn-around time for comments and approval is standard for all documents; some of these documents must also be reviewed and approved by MCC. Within this context, the need for outside technical expertise to help manage and facilitate the document review process as well as quality check and insurance at times is critical. Such need is even more crucial on the basis that the Ministry of Environment and Tourism (MET), which is the main beneficiary and or the client for most of the anticipated deliverables does not have sufficient capacity to review these deliverables. Involvement of outside technical expertise is also required to ensure that MCA-N key deliverables comply with GRN and MCC environmental and social requirements and guidelines. In addition involvement of outside technical expertise will ensure that views of independent stakeholders are incorporated in our deliverables and not only the Government or MCA-N positions. The type of documents to be reviewed include, but are not limited to, Terms of References (TORs), Requests for Proposals (RFPs), Scopes of Work (SOWs), bidding documents, contracts, contract deliverables (e.g., inception reports, monthly reports, special studies, evaluation reports, etc.), Environmental (and Social) Impact Assessment (E(S)IAs), Environmental Management Plans (EMPs), social assessments, resettlement assessments, health and safety plans, natural resource management plans and other related environmental and social documentation. The Consultant may be asked to review documents in their entirety or only review certain sections. The Consultant will also at times be asked to review other materials related to the document(s) in question. Details for the precise services requested will be included in each individual task order. Task Group 2: Provide required capacity building/training services in ESA related themes for a range of Compact stakeholders The MCA-N Compact contains numerous activities within the agriculture, tourism and education sectors that involve a variety of implementing partners and other key stakeholder groups. MCA-N works with staff and representatives from government ministries, local authorities and communities, NGOs and the private sector. 9

10 From an ESA perspective, it is important that all stakeholders have a basic understanding of concepts related to environmental and social management both from a regulatory standpoint (to avoid or mitigate negative impacts) and from a value-added point of view (how to help develop and/or accentuate positive impacts). The MCA-N ESA team strives to convey these messages regularly while working with their partners. However, there is also a need for focused ESA capacity building activities that go beyond the day to day exchange of information. Task 2 is designed to address these needs. While this task is called capacity building/training services MCA-N ESA s approach is based on the premise that every participant has his/her own skills and experiences to bring to a training session; in that regard, active participation by all participants is the primary goal. Participants will not only gain information from technical presentations, but will learn from practical hands-on field exercises as well as from each other. The training will avoid top- down lectures; instead, sessions will quickly introduce certain ESA themes and then facilitate the exchange of information and ideas among the participants in a structured manner. Field work to develop case studies will be an integral part of the training program. An operating principle behind each workshop is to focus on what the audience needs to know rather than inundating the participants with a lot of information that they will likely never use. Training workshops will vary in scope and duration; some will address themes on a general level (e.g., why environmental and social assessment is important, how to design and conduct an E(S)IA, how to develop an environmental management plan, etc.), while others will deal with more specific themes (e.g., integrated pest management, waste management, handling hazardous materials, water quality and management, small scale construction, etc.). Most of the longer workshops (2 days or longer) will combine elements of both. It is currently envisioned that workshops can range from half day activities to programs that can last as long as a week; exceptions to these time parameters will be considered on a case by case basis. Within Task Group 2, the Consultant will be asked to design the workshop and provide the necessary technical information to introduce relevant themes. The Consultant will also be responsible for developing tools that the participants can take with them. The Consultant may also be asked to conduct an initial training needs assessments of certain stakeholder groups. Depending on the availability of resources, the Consultant may or may not be asked to facilitate the workshop; in the event an outside facilitator is used, the Consultant will be required to work closely with the facilitator prior to the workshop. 4. Deliverables and Payment Schedule As this is a time and material contract the following approach will be adopted: The execution of this contract will be carried out through task orders that specify the needed services. The tasks undertaking will be initiated through Task Orders by the Client (MCA- N) to the Consultant, for which the Consultant must prepare a brief proposal. Consultant Proposals for a specific task order are to be short, concise documents (following a provided template). For tasks associated with task groups 1, proposals will be due within 5 working days after the reception of the task order, or if possible, a generic proposal must be prepared at the beginning and prior to specific task orders. 10

11 For tasks related to task group 2, the Consultant will provide the proposal within a 1 month period after receiving task order. The Consultant will be paid the total agreed cost per task. The cost to be paid will be made up of daily professional fees (at agreed rate) and estimated operational cost (at agreed rates). All charges and rates, e.g. Consultant s professional daily charge/rate; DSA rates, transport rate, flights rates, administration fees, need to be agreed before hand and be fixed in the contract The payment schedule will be in form of tranches whereby the first tranche can be paid upon approval of Consultants proposal for completing the specific task order when it is received and approved. The remaining tranches payment associated with the particular task will be paid upon the reception and approval of the task deliverable and final task summary report. Task summary reports are short documents (3-5 pages) that capture the highlights of the task in question, including outcomes and any recommendations for future similarly related work. Summary reports for all tasks will be due within one week of task completion. 5. Contract Duration This Contract will be implemented during the entire remaining period of the MCA-N compact and is expected to commence in November This contract will be time and material type of contract and the Consultant services to implement this Contract will be required on a part-time basis for a 45 month period, based on an estimated 6 days per month. The Consultant will be contracted to perform required tasks under this Contract for a minimum period of one year, which would be renewable at the end of the first and consequent years for a maximum of three years (four years in total), subject to an annual review of satisfactory performance in accordance with the contract. 6. Required Qualifications and Experience This assignment requires the employment of an individual Consultant and the selection will be based on the evaluation of candidates demonstrated relevant qualifications and experience contained in a Curriculum Vitae submitted to MCA-N in the format contained in the Request for Consultant s Qualifications, as well as on the testimony of the references supplied by Consultants. Interested Consultants who are members of consulting firms may also make submissions, in which case, and if successful, MCA-N would contract with the specific firm for the services of that particular Consultant. The following required qualifications and experience will be applicable and evidence of it should be clearly demonstrated in Consultant s submissions: Preferably at least 10 (ten) years experience in environmental and social management fields. In possession of a Masters Degree in a relevant field. English language capacity. Demonstrated experience in environmental assessments and specifically in the independent review of EIA s. 11

12 Demonstrated experience in leading teams of technical experts (coordination, supervision, organizational skills). Demonstrated significant experience in capacity building, training, and environmental advisory services. A good knowledge and understanding of Namibia s biophysical and social environments, and Namibia s policy and legislative environment (particularly the Environmental Management Act (EMA), and the MCC Environmental Guidelines). Demonstrated strong analytical, writing and communication skills. Project management skills will be an added advantage; Institutional assessment skills will be an added advantage. 12

13 Annex I: Abbreviations CBT CP EMA EMP ENP ESA ESIA ETSIP MCA MCC MET MWT NCA NGO SADC TOR Community Based Tourism Condition Precedent Environmental Management Act Environmental Management Plan Etosha National Park Environmental and Social Assessment Environmental and Social Impact Assessment Education and Training Sector Improvement Programme Millennium Challenge Account Millennium Challenge Corporation Ministry of Environment and Tourism Ministry of Works and Transport Northern Communal Areas Non Governmental Organisation Southern Africa Development Community Terms of Reference 13

14 Attachment 2 Contract Form Contract No: MCAN/CIF/RCQ [ ] Contract for Individual Consultant Services Lump-Sum For the provision of Consulting Services [ ] between Millennium Challenge Account - Namibia and [Name of Consultant] Dated: 14

15 TABLE OF CONTENTS Article I Agreement Article II General Terms and Conditions of Contract Article III Additional Provisions of Contract Article IV Appendices Appendix A Description of Services Appendix B - Reporting Requirements Appendix C Consultantss Team Members Appendix C Fee Schedule/Breakdown of Contract Price Appendix D - Services and Facilities to be Provided by MCA-Namibia 15

16 I. Agreement This CONTRACT AGREEMENT (this Contract ) made as of the [day] of [month], [year], between MILLENNIUM CHALLENGE ACCOUNT-NAMIBIA ( MCA-Namibia ), on the one part, and [full legal name of Individual Consultant] (the Consultant ) on the other part. WHEREAS, RECITALS (a) The United States of America, acting through the Millennium Challenge Corporation ( MCC ) and the Republic of Namibia (the Government ) have entered into a Millennium Challenge Compact for Millennium Challenge Account assistance to help facilitate poverty reduction through economic growth in Namibia on July 28, 2008 (the Compact ) in the amount of $304,477,816 ( MCC Funding ). The Government, acting through MCA-Namibia, intends to apply a portion of the proceeds of MCC Funding to eligible payments under this Contract. Payments made under this Contract will be subject, in all respects, to the terms and conditions of the Compact and related documents, including restrictions on the use, and conditions to disbursement, of MCC Funding. No party other than the Government and MCA-Namibia shall derive any rights from the Compact or have any claim to the proceeds of MCC Funding; and (b) MCA-Namibia has requested the Consultant to provide certain consulting services as described in Appendix A to this Contract (the Services ); and (c) The Consultant, having represented to MCA-Namibia that the Consultant has the required professional skills and technical resources, has agreed to provide such services on the terms and conditions set forth in this Contract. NOW THEREFORE, the Parties to this Contract agree as follows: 1. In consideration of the payments to be made by MCA-Namibia to the Consultant as set forth in this Contract, the Consultant hereby covenants with MCA-Namibia to perform the Services in conformity in all respects with the provisions of this Contract. 2. Subject to the terms of this Contract, MCA-Namibia hereby covenants to pay the Consultant, in consideration of the performance of the Services, the Contract Price (as defined below) or such other sum as may become payable pursuant to the provisions of this Contract at the times and in the manner prescribed by this Contract. 16

17 IN WITNESS whereof the Parties hereto have caused this Contract to be executed in accordance with the laws of the Republic of Namibia as of the day, month and year first indicated above. For Millennium Challenge Account-Namibia: For [full legal name of the Individual Consultant]: Signature Name Witnessed By: Signature Name Witnessed By: 17

18 II. General Terms and Conditions of Contract 1. General Provisions 1.1 Definitions Capitalized terms used in this Contract and not otherwise defined have the meanings given such terms in the Compact or related document. 1.2 Relationship Between the Parties 1.3 Law Governing Contract Nothing contained in this Contract shall be construed as establishing a relationship of master and servant or of principal and agent as between MCA-Namibia and the Consultant. This Contract, its meaning and interpretation, and the relation between the Parties shall be governed by the laws and any other instruments having the force of law in the Republic of Namibia, as they may be issued and in force from time to time ( Applicable Law ). In the event of a conflict between the MCA-Namibia Procurement Rules and applicable provisions of the Tender Board of Namibia Act, 1996 or any other public procurement laws or regulations of Namibia, the MCA-Namibia Procurement Rules shall prevail. 1.4 Interpretation Unless otherwise indicated, throughout this Contract: (d) each Appendix to this Contract is incorporated herein by reference and constitutes and integral part of this Contract; (e) all references to contracts, agreements, or other documents shall be deemed to mean such contracts, agreements or documents, as the same may be amended or otherwise modified from time to time; (f) confirmation means confirmation in writing; (g) in writing means communicated in written form (e.g., by mail, , or facsimile) delivered with proof of receipt; and (h) the headings are for reference only and shall not limit, alter or affect the meaning of this Contract. 1.5 Notices Any notice, request or consent required or permitted to be given or made pursuant to this Contract shall be in writing. Any such notice, request or consent shall be deemed to have been given or made when delivered in person to an authorized representative of the Party to whom the communication is addressed, or when sent to such Party at the address specified in Section 1.5.3, or sent by confirmed facsimile or electronic , if sent during normal business hours of the recipient Party A Party may change their address for receiving notice under this Contract by giving the other Party notice in writing of such change to the address specified in Section

19 1.5.3 The notice address for each party is: For MCA-Namibia: For Consultant: 1.6 Location The Services shall be performed at such locations as are specified in Appendix A to this Contract and, where the location of a particular task is not so specified, at such locations, whether in Namibia or elsewhere, as MCA-Namibia may approve. 1.7 Authorized MCA- Namibia Representative Any action required or permitted to be taken, and any document required or permitted to be executed under this Contract by MCA-Namibia may be taken or executed by its [specify appropriate officer]. 1.8 Taxes and Duties Except as may be exempted pursuant to the Compact or another agreement related to the Compact, available on the MCA-Namibia website, the Consultant may be subject to certain Taxes on amounts payable by MCA-Namibia under this Contract in accordance with Applicable Law. The Consultant shall pay all Taxes levied under Applicable Law. In no event shall MCA-Namibia be responsible for the payment or reimbursement of any Taxes. In the event that any Taxes are imposed on the Consultant, the Contract Price shall not be adjusted to account for such Taxes. For the avoidance of doubt, (a) the Consultant will be subject to Applicable Law regarding the following Taxes (collectively, the Non- Exempt Taxes ), and are not exempt from such Taxes pursuant to the provisions of the Compact: income and profit taxes (including individual and corporate), transfer duty taxes, stamp duty taxes, fuel levies, motor vehicle taxes and rates and taxes; and (b) in the case of valueadded Taxes, the Consultant, if registered in Namibia as a payer of value-added Taxes, (i) may invoice MCA-Namibia for value-added Taxes associated with performing the Services and (ii) may receive tax exemption from import customs and value-added Taxes on supplies, goods and services imported for the performance of the Services if such supplies, goods or services are consigned to MCA- Namibia. 19

20 1.8.2 The Consultant, the Consultant s members and their eligible dependents, shall follow the usual customs procedures of Namibia in importing property into Namibia If the Consultant or any of the Consultant s members or eligible dependents, do not withdraw but dispose of any property in Namibia upon which customs duties or other Taxes have been exempted, the Consultant (a) shall bear such customs duties and other Taxes in conformity with Applicable Law, or (b) shall reimburse such customs duties and Taxes to MCA-Namibia if such customs duties and Taxes were paid by MCA-Namibia at the time the property in question was brought into Namibia Without prejudice to the rights of the Consultant under this Section, the Consultant will take reasonable steps as requested by MCA-Namibia or the Government with respect to the determination of the Tax status described in this Section If the Consultant is required to pay Taxes that are exempt under the Compact or a related agreement, the Consultant shall promptly notify MCA-Namibia (or such agent or representative designated by MCA-Namibia) of any Taxes paid, and the Consultant shall cooperate with, and take such actions as may be requested by MCA-Namibia, MCC, or either of their agents or representatives, in seeking the prompt and proper reimbursement of such Taxes MCA-Namibia shall use reasonable efforts to ensure that the Government provides the Consultant the exemptions from taxation applicable to such persons or entities, in accordance with the terms of the Compact or related agreements. If MCA-Namibia fails to comply with its obligations under this paragraph, the Consultant shall have the right to terminate this Contract in accordance with Section 2.7.5(d). 1.9 Fraud and Corruption Requirements MCC requires that MCA-Namibia and any other beneficiaries of MCC funding, including any bidders, suppliers, contractors, subcontractors and consultants under any MCC-funded contracts, observe the highest standards of ethics during the procurement and execution of such contracts. Definitions As used in this Section 1.9: (i) (j) coercive practice means impairing or harming or threatening to impair or harm, directly or indirectly, persons or their property, to influence their participation in a procurement process, or affect the execution of a contract. collusive practice means a scheme or arrangement between two or more parties, with or without the 20

21 knowledge of MCA-Namibia, designed to establish prices at artificial, non-competitive levels or to otherwise deprive MCA-Namibia of the benefits of free and open competition. (k) corrupt practice means the offering, giving, receiving, or soliciting, directly or indirectly, of anything of value to influence the actions of a public official (including MCA-Namibia and MCC staff and employees of other organizations taking or reviewing selection decisions) in the selection process or in contract execution or the making of any payment to any third party, in connection with or in furtherance of a contract, in violation of (A) the United States Foreign Corrupt Practices Act of 1977, as amended (15 USC 78a et seq.) ( FCPA ), or any other actions taken that otherwise would be in violation of the FCPA if the FCPA were applicable, or (B) any applicable law in Namibia. (l) fraudulent practice means any act or omission, including any misrepresentation, in order to influence (or attempt to influence) a selection process or the execution of a contract to obtain a financial or other benefit, or to avoid (or attempt to avoid) an obligation. (m) obstructive practice means (i) (ii) destroying, falsifying, altering or concealing evidence material to the investigation or making false statements to investigators in order to impede an investigation into allegations of a corrupt, fraudulent, coercive, collusive, or prohibited practice; and threatening, harassing, or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, and acts intended to impede the exercise of the inspection and audit rights of MCC provided under the Compact and related agreements. (n) prohibited practice means any action that violates Section E (Compliance with Anti-Corruption, Anti- Money Laundering and Terrorist Financing Statutes and Other Restrictions) of Article III to this Contract. Measures to be Taken MCC may cancel the portion of MCC Funding allocated to this Contract if it determines at any time that representatives of MCA-Namibia, the Consultant or any other beneficiary of the MCC Funding were engaged in corrupt, fraudulent, coercive, collusive, prohibited or obstructive practices during the selection process or the execution of this Contract, without MCA-Namibia, the 21

22 Consultant or such other beneficiary having taken timely and appropriate action satisfactory to MCC to remedy the situation MCC and MCA-Namibia may pursue sanction of the Consultant, including declaring the Consultant ineligible, either indefinitely or for a stated period of time, to be awarded an MCC-funded contract if it at any time MCC determines that the Consultant has, directly or through an agent, engaged in corrupt, fraudulent, coercive, collusive, prohibited or obstructive practices in competing for, or in executing, this Contract or another MCC-funded contract MCA-Namibia may terminate (and MCC may cause MCA- Namibia to terminate) this Contract in accordance with the terms of Section 2.7.2(c) if it determines that the Consultant has, directly or through an agent, engaged in corrupt, fraudulent, coercive, collusive, obstructive or prohibited practices in competing for, or in the performance of, this Contract or another MCC-funded contract Entire Agreement This Contract contains all of the covenants, stipulations and provisions agreed to by the Parties. No agent or representative of either Party has the authority to make, and the Parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth in this Contract. 2. Commencement, Completion, Modification and Termination of Contract 2.1 Contract Entry into Force 2.2 Effective Date and Commencement of Services 2.3 Expiration of Contract This Contract shall come into full force, and be legally binding on the Parties in all respects, on [the date this Contract is signed by the Parties]. The Consultant shall commence the Services on [specify date], which shall be defined as the Effective Date. Unless terminated earlier pursuant to Section 2.7, this Contract shall expire on the first anniversary of the Effective Date (the Term ); provided, however, that the Term shall automatically extend for successive (1) year periods, (up to a maximum of three extensions) unless MCA-Namibia notifies the Consultant in writing of its election not to renew the Term, at least sixty (60) days prior to the anniversaries of the Effective Date. 2.4 Modifications or Variations Any modification or variation of the terms and conditions of this Contract, including any modification or variation of the scope of the Services, may only be made by written agreement between the Parties. The prior written consent of MCC is required for modifications that (a) 22

23 increase the value of the Contract; or (b) change the scope of Services or duration of the Contract resulting in a cumulative (together with previous modifications) change in the price of the Contract of ten percent (10%) or more. 2.5 Force Majeure Definition No Breach Contract of For the purposes of this Contract, Force Majeure means an event or condition that (a) is not reasonably foreseeable and is beyond the reasonable control of a Party, and is not the result of any acts, omissions or delays of the Party relying on such event of Force Majeure, (or of any third person over whom such Party has control, including any sub-consultant), (b) is not an act, event or condition the risks or consequence of which such Party has expressly agreed to assume under this Contract, (c) could not have been prevented, remedied or cured by such Party s reasonable diligence, and (d) makes such Party s performance of its obligations under this Contract impossible or so impractical as to be considered impossible under the circumstances The failure of a Party to fulfil any of its obligations under this Contract shall not be considered to be a breach of, or default under, this Contract insofar as such inability arises from an event of Force Majeure, provided that the Party affected by such an event (a) has taken all reasonable precautions, due care and reasonable alternative measures in order to carry out the terms and conditions of this Contract, and (b) has informed the other Party as soon as practicable (and in no event later than five (5) days after the occurrence) about the occurrence of an event giving rise to a claim of Force Majeure. Measures to be Taken Subject to Section 2.5.6, a Party affected by an event of Force Majeure shall continue to perform its obligations under this Contract as far as is reasonably practical, and shall take all reasonable measures to minimize and otherwise mitigate the consequences of any event of Force Majeure A Party affected by an event of Force Majeure shall provide evidence of the nature and cause of such event, and shall similarly give written notice of the restoration of normal conditions as soon as possible Any period within which a Party shall, pursuant to this Contract, complete any action or task, shall be extended for a period equal to the time during which such Party was unable to perform such action as a result of Force Majeure. 23

24 2.5.6 During the period of its inability to perform the Services as a result of an event of Force Majeure, the Consultant, upon instructions by MCA-Namibia, shall either: (o) demobilize, in which case the Consultant shall be reimbursed for additional costs that the Consultant reasonably and necessarily incurred and, if the Consultant is required by MCA-Namibia to reactive performance of the Services at the time of restoration of normal conditions, the additional costs the Consultant reasonably and necessarily incurred as part of such reactivation; or (p) continue with the Services to the extent possible, in which case the Consultant shall continue to be paid under the terms of this Contract and be reimbursed for additional costs reasonably and necessarily incurred. 2.6 Suspension MCA-Namibia may, by giving thirty (30) days written notice to the Consultant, suspend all payments to the Consultant under this Contract if the Consultant fails to perform any of the Consultant s obligations under this Contract, including the carrying out of the Services, provided that such notice of suspension (a) shall specify the nature of the failure, and (b) shall request the Consultant to remedy such failure within a period not exceeding thirty (30) days after receipt by the Consultant of such notice of suspension. 2.7 Termination/ Suspension By MCA-Namibia Without prejudice to any other remedies that may be available to it for breach of this Contract: MCA-Namibia may terminate this Contract upon written notice to the Consultant, and such termination shall become effective immediately upon delivery of the notice (or on such other date as may be specified by MCA- Namibia in such notice): (q) if the Consultant, in the judgment of MCA-Namibia or MCC, fails to perform the Consultant s obligations relating to the use of funds set out in Article III. In such event the Consultant shall repay any and all funds so misused within a maximum of thirty (30) days after termination; (r) if the Consultant becomes insolvent or bankrupt; (s) if the Consultant, in the judgment of MCA-Namibia has engaged in corrupt, fraudulent, coercive, collusive, prohibited, obstructive or practices in competing for or in the performance of this Contract or another MCC-funded contract; (t) if an event exists or occurs that would give rise to the expiration, suspension or termination in whole or in 24

25 part of the Compact in accordance with the terms of the Compact; or (u) if suspension or termination is permitted under Applicable Law MCA-Namibia may terminate this Contract, upon written notice to the Consultant, and such termination shall become effective 30 days after delivery of the notice or on such later date as may be specified by MCA-Namibia in such notice (except in the case of clause (a) below where termination shall become effective immediately upon expiration of the cure period): (v) if the Consultant does not remedy a failure in the performance of the Consultant s obligations under this Contract (other than failure to perform obligations relating to use of funds as set forth in Section 2.7.2(a) of this Contract, which such failure shall not be entitled to a cure period) within thirty (30) days after delivery of the notice of termination or within any further period of time approved in writing by MCA-Namibia; (w) if, as the result of an event of Force Majeure, the Consultant is unable to perform a material portion of the Services for a period of not less than sixty (60) days; (x) if MCA-Namibia, in its sole discretion and for any reason whatsoever, decides to terminate this Contract; (y) if the Consultant fails to comply with any final decision reached as a result of arbitration proceedings pursuant to Section MCA-Namibia may also suspend this Contract if any of the events specified in Sections 2.7.2(d) or (e) occurs. In such case, the Consultant has an obligation to mitigate all expenses, damages and losses to MCA-Namibia during the period of the suspension. By the Consultant The Consultant may terminate this Contract, upon written notice to MCA-Namibia after the occurrence of any of the events specified in paragraphs (a) through (e) of this Section 2.7.5, and such termination shall become effective 30 days after delivery of the notice (except that in the case of clauses (a) and (d) below the termination shall not take effect if the payment or reimbursement that is the subject of the termination notice is made during such 30 days): (z) If MCA-Namibia fails to pay any money due to the Consultant pursuant to this Contract that is not otherwise subject to dispute pursuant to Section 6 hereof within forty-five (45) days after receiving written notice from the Consultant that such 25

26 payment is overdue. (aa) If, as the result of an event of Force Majeure, the Consultant is unable to perform a material portion of the Services for a period of not less than sixty (60) days. (bb) If MCA-Namibia fails to comply with any final decision reached as a result of arbitration pursuant to Section 6. (cc) If the Consultant does not receive a reimbursement of any Taxes that are exempt under the Compact within one hundred and twenty (120) days after the Consultant gives notice to MCA-Namibia that such reimbursement is due and owing to the Consultant. (dd) If this Contract is suspended in accordance with Section for a period of time exceeding three (3) consecutive months; provided that the Consultant has complied with the Consultant s obligation to mitigate in accordance with Section during the period of the suspension. Payment upon Termination Upon termination of this Contract pursuant to Sections 2.7.2, 2.73 or 2.7.5, MCA-Namibia shall make, or cause to be made, the following payments to the Consultant: (ee) payment pursuant to Section 5 for Services satisfactorily performed prior to the effective date of termination; and (ff) except in the case of termination pursuant to clauses (a) through (c) of Section and clauses (a) and (d) of Section 2.7.3, reimbursement of any reasonable cost (as determined by MCA-Namibia or MCC) incidental to the prompt and orderly termination of this Contract; provided, that in the case of suspension of this Contract pursuant to Section 2.7.4, the Consultant has complied with the Consultant s obligation to mitigate in accordance with such Section. 2.8 Cessation of Rights and Obligations Upon termination of this Contract pursuant to Section 2.7, or upon expiration of this Contract pursuant to Section 2.3, all rights and obligations of the Parties under this Contract shall cease, except (a) such rights and obligations as may have accrued on the date of termination or expiration, (b) the obligation of confidentiality set forth in Section 3.3, (c) the Consultant s obligation to permit inspection, copying and auditing of the Consultant s accounts and records set forth in Sections 3.6 and 3.7 and Article III and (d) any right or obligation which a Party may have under Applicable Law. 26

27 3. Obligations of the Consultant 3.1 General Standard of Performance Law Governing Services The Consultant shall perform the Services and carry out the Consultant s obligations under this Contract with all due diligence, efficiency and economy, in accordance with generally accepted professional standards and practices, and shall observe sound management practices, and employ appropriate technology and safe and effective equipment, machinery, materials and methods. The Consultant shall always act, in respect of any matter relating to this Contract or to the Services, as faithful adviser to MCA-Namibia, and shall at all times support and safeguard MCA-Namibia s legitimate interests in any dealings with third parties The Consultant shall perform the Services in accordance with Applicable Law. 3.2 Conflict of Interests The Consultant shall hold MCA-Namibia s interests paramount, without any consideration for future work, and strictly avoid conflict with other assignments or the Consultant s own interests. Consultant Not to Benefit from Commissions, Discounts, etc The payment of the Consultant pursuant to Section 5 shall constitute the Consultant s only payment in connection with this Contract and, subject to Section 3.2.3, the Consultant shall not accept for the Consultant s own benefit any trade commission, discount or similar payment in connection with activities pursuant to this Contract or in the discharge of the Consultant s obligations under this Contract. Consultant Not to Engage in Certain Activities Furthermore, if the Consultant, as part of the Services, has the responsibility of advising MCA-Namibia on the procurement of goods, works or services, the Consultant shall comply with the MCA-Namibia Procurement Rules from time to time in effect as posted on the MCA-Namibia website, and shall at all times exercise such responsibility in the best interest of MCA-Namibia. Any discounts or commissions obtained by the Consultant in the exercise of such procurement responsibility shall be for the account of MCA-Namibia The Consultant agrees that, during the term of this Contract and after its termination, the Consultant and any entity affiliated with the Consultant shall be disqualified from providing goods, works or services (other than consulting services) resulting from or directly related to the Services. 3.3 Confidential Information; Rights of Use 27