ANSWERS TO THE QUESTIONS ASKED BY THE INTERESTED SUPPLIERS, PROVIDED BY THE PROCUREMENT COMMISSION ON 19.03.2019 Question 1: Referring to point 1.14.8, please confirm that, considering that our jv is made up of companies belonging to the EEC, it is not necessary to produce apostilled documents. Answer 1 Pursuant to Clause 1.14.8 of the Regulations, the documents issued in a Member State of the European Union, European Economic Area or Swiss Confederation do not have to be legalised by Apostille. Question 2: Referring to point 4.1.4 on page 18 of the updated Regulations, it is stated "a) a certified copy of the profit and loss statement for the accordant years" and on the same page at 4.1.5 says "a certified copy of the balance sheet of the Tenderer for 2017 ". Please confirm that we need to produce a copy of the 3-past-years profit and loss statements in addition to the certified copy of the balance sheet of the Tenderer for 2017. Please also confirm that true copy of the original is considered certified copy. Answer 2 We confirm that, additionally to a certified copy of the Tenderer's Balance Sheet for 2017, certified copies of Profit-Loss Statement for the last three years are required. Furthermore, we hereby specify that the Tenderer is obliged to certified the copies pursuant to the provisions of Clause 1.14.5 and 1.14.7 of the Regulations. Within the meaning of the Regulations, a "certified copy" shall be a document, the compliance of which with the original is certified by a signature affixed by a person with the representation rights of the tenderer. We hereby draw your attention to the fact that the Tenderer may certify derivation and translation of each document separately, furthermore, the Tenderer shall be entitled to certify all the documents and translations contained in the proposal by providing one uniform certification applying to all derived documents and translations. Question 3: Referring to point 4.1.7 "CLIENT CERTIFICATES FOR EACH PROJECT" if they come from non-eec customers, must they be translated and apostilled or only translated? Answer 3: Pursuant to Clause 1.14.8 of the Regulations, if any of the documents submitted by the Tenderer has been issued by an institution of the Member State of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, it should be accompanied by Apostille. Documents issued by the institutions of the remaining countries must be legalised by consular means in the country of origin and the Republic of Latvia. (The aforementioned is not to be applicable to public documents issued by a Member State of the European Union, European Economic Area or Swiss Confederation). We hereby draw your attention to the fact that the references of employers referred to in Clause 4.1.7 of the Regulations are not to be considered as a public document within the meaning of Clause 4.1.8 of the Regulations, thus, these documents do not have to be accompanied by Apostille. Documents of proposal prepared by the Tenderer in a foreign language must be accompanied by a translation into Latvian pursuant to the requirements of Clause 4.1.5 and Clause 4.1.6 of the Regulations. Furthermore, we hereby draw your attention to the fact that, in case of any doubt regarding authenticity of the submitted copy of document, the Procurement Commission may demand the Tenderer to produce original of the document or submit a certified copy of the document in accordance with the procedures laid down in Section 41, Paragraph 5 of the Public Procurement Law.
Question 4: Referring to point 4.1.8: a. we read "certified...". Please clarify if an expert holding a BSc in engineering and allowed to perform his profession in his country of origin is allowed. b. some required experts must have experience in project verification. Is the experience in detailed design also allowed? c. a key expert comes from an extra-eec state, which documents attesting the experience should be apostilled? Only the degree? Answer 4: a. According to Section 6, Paragraph 7 of the Construction Law, the State Construction Control Office grants the right to independent practice in the speciality determined in Section 13, Paragraph 3, Clause 5 of this Law expert-examination. Clause 4.1.8 of the Regulations stipulates that: If the home country and country of the provided services of the referred to construction specialist is a Member State of the European Union or European Free Trade Association and he/she does not hold a valid Certificate of Construction specialist, issued by the competent institutions of the Republic of Latvia, the Tenderer shall submit a certification to the Employer that, within 3 (three) months from the day of entry of the Procurement Contract into effect, declaration on temporary provision of professional services in the Republic of Latvia in a regulated profession will be submitted to the institution of recognition for the construction specialist concerned in accordance with the procedures laid down in the applicable regulatory enactments of the Republic of Latvia and corresponding certificate of construction specialist will be received (in the relevant area of construction practice); - If residing country of the construction specialist concerned and country of the provision of services is not a Member State of the European Union or European Free Trade Association, and the specialist does not hold a valid certificate of construction specialist, issued by the competent institutions of the Republic of Latvia, the Tenderer shall submit to the Employer an attestation that, within 4 (four) months from the day of entry of the Procurement Contract into effect, recognition of the professional qualification in a profession regulated in the Republic of Latvia will be provided for the construction specialist concerned in accordance with the procedures stipulated in the applicable regulatory enactments of the Republic of Latvia and corresponding certificate of construction specialist will be received (in the relevant area of construction practice). b.pursuant to Answer No. 11 provided by the Procurement Commission on 06.03.2019, we hereby inform you repeatedly that, pursuant to Sub-paragraph 2.5 of the Cabinet Regulations No. 500 of 19 August 2014 General Construction Regulations, detailed technical design expertexamination is a professional inspection the purpose of which is to provide evaluation regarding conformity of the technical solution of the detailed construction design to the requirements of the regulatory enactments and technical regulations. Within the meaning of Sub-clauses 4.1.8.3, 4.1.8.5 4.1.8.12 of the Regulations of the Tender, experience, within the framework of which the specialist indicated in the Tenderer's proposal has performed inspection of the detailed construction design/section of detailed construction design referred to in Sub-clauses 4.1.8.3, 4.1.8.5 4.1.8.12 of the Regulations of the Tender regarding conformity of the technical solution of the detailed construction design to the requirements of the regulatory enactments and technical regulations, will be considered as relevant. The experience gained at the objects, in relation to which detailed technical design expertexamination service has been completed during the previous five years (in 2014, 2015, 2016, 2017, 2018 and in 2019 up to the expiry of the time limit set for submission of the proposals), which has been attested by the opinion of the detailed technical design expert-examination or other document, which leads to conclusion that provision of the relevant service has been 2
completed, will be considered as compliant with the requirements set in the aforementioned clauses of the Regulations of the Tender. c. Additionally to the content of Answer 1 and Answer 3, we hereby explain that: According the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, public documents are as follows: a) documents emanating from an authority or an official connected with the courts or tribunals of the State, including those emanating from a public prosecutor, a clerk of a court or a process-server ("huissier de justice"); b) administrative documents; c) notarial acts; d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures. Thus, certification of authenticity of documents by Apostille or legalisation thereof does not apply to the documents issued by subjects of private law, for example, references of service receivers, service contracts etc. We hereby explain that a document approved by Apostille in any of the Member States of the Hague Convention shall be recognised in all the remaining Member States of the Hague Convention, and it should not be additionally approved in the country of submission. If the country, where a public document is issued, is not a Member State of the Hague Convention, the public document must be legalised first it is approved by the issuing country, afterwards the country of submission. Legalisation or certification of a public document issued by a Member State of the European Union, European Economic Area or Swiss Confederation by Apostille is not required in Latvia. Question 5: With reference to the point 5.12 of the Particular contract Conditions and with reference to Tender Regulations items 10.1.1, 10.1.2 and 10.1.3, please clarify the schedule and the release procedure for the securities bond (performance security, advance payment security and retention money guarantee). It would appreciated if the procedures are explained in the form of a graphic chart also. Answer 5: Please, see the informative materials prepared by the Employer within the framework of the Particular Contract Conditions. Question 6: With reference to point 1.9 of the Tender Regulations the duration of the project phases doesn t match with the Expert Time Schedule provided in the excel file named 4.pielikums_ENG_2, please clarify. Answer 6: Nolikuma 1.9. punktā minētie Līguma izpildes 119 mēneši ietver arī defektu paziņošanas periodu (5 gadi pēc Darbu Līgumā paredzēto Visu Darbu nodošanas un pieņemšanas apstiprinājuma izdošanas no Pasūtītāja puses). Minētie 5 gadi kopā ar Nolikuma 3. pielikuma 4. nodaļā Speciālistu laika grafiks norādīto Darbu Posmu ilgumu veido arī 119 mēnešus ilgu periodu, līdz ar to Pasūtītājs nesaskata jautājumā minētās pretrunas. Tāpat arī, salīdzinot atsevišķi Posmu izpildes periodus abos minētajos dokumentos, Pasūtītājs nesaskata pretrunas. Tulkojums angļu valodā: 119 months granted for the fulfilment of the Contract referred to in Clause 1.9 of the Regulations include also the defect reporting period (5 years after the issuance of approval of handover and acceptance of all works stipulated in the Works Contract by the Employer). The referred to 5 years together with the duration of the Stage of Works specified in Chapter 4 "Specialists' Schedule" of 3
Annex No. 3 to the Regulations form the period of 119 months, thus, the Employer does not see the discrepancy referred to in the question. Alike, the Employer does not see any discrepancy when separately comparing periods for the completion of Stages. Question 7: Should the insurance company that will issue the Bid Bond and the Performance Bond have any special requirement, or any insurance company registered in an EU country will be accepted? Answer 7: Nolikuma 2.3.punktā ir noteikts, ka piedāvājuma nodrošinājumu ir jāizsniedz Eiropas Savienībā vai Eiropas Ekonomikas zonā vai Pasaules Tirdzniecības organizācijas dalībvalstī reģistrētai apdrošināšanas sabiedrībai. Līguma Speciālo noteikumu 5.12.2.apakšpunktā ir noteikts, ka Avansa maksājuma nodrošinājumu (ja Konsultants pieprasa Avansu), Līguma izpildes nodrošinājumu un Ieturējuma naudas nodrošinājumu ir jāizsniedz Pasūtītāja apstiprinātai Latvijas Republikā, Eiropas Savienības dalībvalstī vai Eiropas Ekonomiskās zonas valstī reģistrētai apdrošināšanas sabiedrībai, kas Latvijas Republikā, Eiropas Savienības dalībvalstī vai Eiropas Ekonomiskās zonas valstī likumā noteiktā kārtībā sniedz apdrošināšanas pakalpojumus. Izvērtējot nodrošinājuma un tā izsniedzēja/- u atbilstību, Pasūtītājs cita starpā ņems vērā arī nodrošinājuma izsniedzēja/-u finanšu stabilitātes rādītājus (pie tam Konsultantam savlaicīgi jānodrošina visu attiecīgo dokumentu, pierādījumu iesniegšana Pasūtītājam attiecībā uz nodrošinājuma un tā izsniedzēja/-u atbilstību Līguma noteikumiem), tādējādi katram nodrošinājuma izsniedzējam jāsasniedz arī šādi kritēriji: a) nodrošinājuma izsniedzēja vismaz pēdējo 5 gadu (no 2013.g. līdz 2017.g., tos ieskaitot) finanšu pārskatiem (piemēram, gada pārskatiem) jābūt secīgi (t.i., nepārtraukti, katrā no noteiktajiem gadiem) auditētiem/pārbaudītiem piemērojamā likumā noteiktā kārtībā; b) nodrošinājuma izsniedzēja vismaz pēdējo 5 gadu (no 2013.g. līdz 2017.g., tos ieskaitot) finanšu pārskatus (piemēram, gada pārskatiem) secīgi (t.i., nepārtraukti, katrā no noteiktajiem gadiem) ir auditējusi/pārbaudījusi starptautiska, neatkarīga, atbilstoši kvalificēta auditorkompānija un tās atzinums/-i nevienā no norādītajiem laika periodiem nedrīkst: (b.1) būt negatīvs/-i (attiecīgo finanšu pārskatu noraidošs, neapstiprinošs); vai (b.2) saturēt iebildumu/-us: (b.2.1) attiecībā uz nodrošinājuma izsniedzēja audita apjoma ierobežojumiem; (b.2.2) attiecībā uz šaubām par nodrošinājuma izsniedzēja spēju turpināt darbību nākotnē; (b.2.3) ka attiecīgais finanšu pārskats nesniedz skaidru un patiesu priekšstatu par nodrošinājuma izsniedzēja finanšu pārskatiem. Pieļaujams, ka šāds atzinums/- i var saturēt piezīmi/-es attiecībā uz apstākļu akcentēšanu. Tulkojums angļu valodā: Clause 2.3 of the Regulations stipulates that tender security should be submitted by an insurance company registered in a Member State of the European Union or European Economic Area or World Trade Organisation. Sub-clause 5.12.2 of the Particular Contract Conditions stipulates that security for the Advance Payment (if the Consultant requires Advance Payment), Security of the Performance of Contract and Security of the Deduction Fee must be issued by an insurance company registered in a Member State of the European Union or European Economic Area or World Trade Organisation, which provides insurance services in the Republic of Latvia, a Member State of the European Union or European Economic Area in accordance with the procedures laid down in the law and which has been approved by the Employer. During the assessment of the conformity of the security and issuer/-s thereof, the Employer will, inter alia take into account indicators of financial stability of the issuer (furthermore, the Consultant must timely provide submission of all the relevant documents and evidence to the Employer regarding the security and conformity of the security and issuer/-s thereof with the provisions of the Contract), therefore each issuer of security must also meet the following criteria: 4
a) Financial reports (for example, Annual Reports) of the issuer of security for at least the last 5 years (from 2013 to 2017 inclusive) must be consequently (i.e., uninterruptedly, in each of the indicated years) audited/verified in accordance with the procedures laid down in the applicable law; b) Financial reports (for example, Annual Reports) of the issuer of security for at least the last 5 years (from 2013 to 2017 inclusive) have been consequently (i.e., uninterruptedly, in each of the indicated years) audited/verified by an international, independent, relevantly qualified auditing company and its opinion/-s for any of the indicated periods may not: (b.1) be negative (rejecting, non-approving the relevant financial report); or (b.2) contain any objection/-s: (b.2.1) with regard to the limits in scope of audit of the issuer of security; (b.2.2) with regard to doubt regarding the ability of the issuer of security to continue activity in the future; (b.2.3) that the relevant financial report does not provide true and fair view about the financial reports of the issuer of security. Such opinion/-s may contain note/-s with regard to accentuation of circumstances. Question 8: With reference to point 4.1.7 of the Tender Regulations, please confirm if: 1. in case of a project started before 2014 and still ongoing, the whole construction cost completed at the actual date can be considered valid. 2. In case of a project started before 2014 and completed in between 2014 and 04/2019, the whole construction cost of the project itself is considered valid. 3. For requirement 4), please clarify what is meant by public transport infrastructure building. Is a complex infrastructure (e.g. railway line) considered valid or just a building within the infrastructure (e.g. station, airport terminal etc.) will be considered valid? 4. Please confirm that the experience for requirement 2), 3) and 4) can be fulfilled totaling more objects (bridges, buildings etc.). Answer 8: 1. Pursuant to Clause 4.1.7 of the Regulations, all the services attesting conformity to the qualification requirements laid down in this Clause from 2014 to the day of submission of proposals, must be executed and fully completed. Within the meaning of the Regulations "executed and fully completed" shall mean that the relevant services must be executed (completed) in the specified period, however, the date of commencement of provision of the services is not limited by the specified time limit. We hereby indicate that a service, which is not completed within the time limit set in the Regulations, will not be considered as compliant with the requirements of the Regulations. 2. We hereby approve that, pursuant to the requirements of Clause 4.1.7 of the Regulations, total costs of detailed construction designs/construction objects will be assessed, including costs before 2014. 3. Construction of public transport infrastructure referred to in Clause 4.1.7, Sub-clause 4) of the Regulations may include also a railway line, however, it should include also public use infrastructure, which is directly subordinated to the relevant transport infrastructure object and integrated therein (for example, building of railway passenger station). 4. Qualification requirements laid down in Sub-clauses of Clause 4.1.7 of the Regulations will be considered as met only in case, if the experience specified by the Tenderer will include (with regard to meeting each requirement) at least one object, the total costs of construction works of which are at least the same as the costs indicated in the relevant sub-clause of the qualification requirements. This means that the aforementioned requirements may not be met by summing up costs of construction works of of several objects, where costs of construction works of any of these objects separately do not reach the minimum amount stipulated by the Employer. 5
The Employer also indicates that the Tenderer shall be entitled to ensure meeting requirements of several Sub-clauses of Clause 4.7.1 by the same object, if it meets the requirements of the relevant Sub-clauses. Question 9: Clause 5.12 "Securities and Deduction Fee", Sub-clause (b) of the document Particular Contract Conditions of Annex No. 13 to the Regulations of the Open Tender Draft Procurement Contract stipulates that the Consultant shall provide performance of obligations of the Contract by security of performance of the Contract in the amount of at least 50% of the Accepted Contractual amount. Taking into account the experience accumulated by us and working elsewhere in the world, we can say that Employers in the procurements of this kind set conditions of issued security of performance of the Contract in the amount not exceeding 10% (ten per cent) of the Contractual amount of the Consultants' procurement, which we consider as proportionate requirement, which can be met by the Tenderers. We would like to remind that any exorbitant requirements will cause unnecessary rise in service prices. We hereby ask the Employer to review this requirement and reduce the set amount to the globally common amount. Answer 9: We hereby explain that the Public Procurement Law does not set any limits for employers with regard to setting of security of performance of obligations. The Employer has set the amount of the security with the aim to reduce the risk related to non-performance of the Procurement Contract and, taking into account the importance of correct and timely performance of the Contract and the possible negative consequences, which may be caused to the Employer, if the Contract was performed inappropriately. Taking into account the aforementioned, importance of the procurement contract to be concluded and the significant impact thereof on appropriate implementation of the common Rail Baltica project, in the Employer's opinion, there is no reason to believe in this particular case, that the security of performance of obligations set in the Regulations of the Procurement is disproportionate. Furthermore, the set security of performance of obligations does not limit abnormally free competition of suppliers, because requirement regarding provision of security of performance of obligations equally applies to each interested supplier, and any of the interested suppliers has not been applied any limits regarding meeting the aforementioned requirement, for example, by including costs related to submission of relevant security of performance of obligations in the proposed contractual price. Furthermore, in the sitting of 25 February 2019, the Procurement Commission of the Tender has approved amendments to the Regulations of the Tender, within the framework of which amendments have been made to Annex No. 13 "Draft Procurement Contract" to the Regulations of the Tender by stipulating in Sub-clauses 5.12.1 and 5.12.4 of the Special Regulations of the Contract that: (1) Security of performance of contractual obligations must be submitted in several parts: security of performance of the Contract for the Consultant's services applying to Stage 1 and Stage 2 of the Works Contract must be submitted within 28 days after signing of the Procurement Contract, while security of performance of the Contract for the Consultant's services with regard to Stage 3 and Stage 4 of the Works Contract: within 28 days after the occurrence of the conditions for the performance of these parts of the Consultant's services (Employer's order issued to the Consultant regarding the performance of the respective part of services); and (2) Security of performance of the Contract shall be reduced in accordance with the following procedures and in the following amount: from the day of commissioning of Stage No. 2, Stage No. 3 and/or Stage No. 4 of the Works Contract in accordance with the procedures laid down in the regulatory enactments and Acceptance-Handover Approval of the Stage No. 2, Stage No. 3 and/or Stage No. 4 has been issued in accordance with the procedures laid down in the Works Contract, the amount of the security of performance of the Contract shall be reduced 6
after handover of each referred to Stage of Works by the amount of security of performance of the Contract according to the one submitted for the part of the Services applying to the commissioned relevant Stage of Works of the Works Contract and accepted by the Acceptance-Handover Approval of the Stage issued in accordance with the procedures laid down in the Works Contract. During the defect reporting period of the Works Contract, the Consultant shall retain valid security of performance of the Contract in the amount of at least 10% of the Accepted amount of the Contract. Additionally to the aforementioned, amount of deduction fee has been reduced from 10% to 5% in Sub-clause 5.12.1 of the Draft Procurement Project. Question 10: Annex No. 15 Works Contract to the Open Tender stipulates that this Contract shall be signed also by the Consultant. We hereby draw your attention to the fact that, in our opinion, such a requirements is unsubstantiated taking into account the fact that the Employer and the Consultant will conclude a contract within the framework of this procurement for the provision of engineering consultant, construction supervision and detailed technical design expert-examination services, which clearly defines the duties to be performed by the selected Consultant (Engineer) and the liability thereof. Therefore, we consider the Consultant may not be one of the parties signing the Construction Contract, because the Construction Contract defines relations between the Employer and the Contractor. According to the conditions of the Contract on Supply of Plants and Designing- Construction Works (FIDIC Yellow Book), the Engineer is a person chosen by the Employer for the performance of the duties of the Engineers within the framework of the Contract, and any approval, controlling measure, certification, request, trial or similar action by the Engineer (as well as expression of disagreement) shall not release the Contractor from any liability in accordance with the Contract (of FIDIC Yellow Book), including liability for mistakes, negligence, discrepancies and non-compliance, from which it logically arises that the Engineer has completely no impact on the Contract concluded by the Employer and the Contractor, and it forms no part of the Consultant's competence. Furthermore, FIDIC guidelines for the selection of Consultants, on the basis of quality Guidelines for the Selection of Consultants, 2nd Edition, 2013, Clause 1, Sub-clause 1.4 Definitions read as follows: Works Contract: Contract, which has been concluded by and between the Employer and the Contractor for performance of construction works/delivery of goods and/or provision of services other than consulting services, for example, for provision of transportation and cleaning services. We hereby ask the Employer to exclude the aforementioned requirement from the Regulations of the Tender. Answer 10: It arises from the essence of the subject-matter of the procurement of the Tender that the Consultant is obliged to perform the duties of the Engineer as stipulated in the Works Contract. The Works Contract contains a number of duties to be performed solely by the Engineer. Body of the Engineer's duties contains provision of fair and balanced implementation of the Works Contract. The Employer has chosen that the aforementioned duties of the Engineer shall be performed by the Consultant as an independent party to the Works Contract, and not as an authorised Employer's representative on behalf of the Employer, thus providing classic performance of the Engineer's role within the framework of the Works Contract. The Consultant may perform the duties of the Engineer referred to in the Works Contract as an independent party to the Works Contract only through joining thereto. Thus, in order to make the Works Contract fully binding to the Consultant and avoid any disputes regarding the volume of obligations during the performance of the Procurement Contract, it is necessary for the Consultant to sign also the Works Contract as an Engineer within the meaning of the Works Contract. 7
Question 11: In the answers to the questions asked by the interested supplier, provided on 11 March 2019, the Employer states in Answer 2 that the "maximum total amount of contractual penalties has not been limited in the amount of 10% of the contractual price". Do we understand it right that it means that the maximum total amount of contractual penalties is not limited or unlimited liability is applied? If it is so, within the current version, this answer means that the Consultant should assume unlimited liability. Please, take into account that principles of best practice of serious international companies in the project risk management do not allow to assume risks of unlimited volume, including compensation for indirect losses, which are not compatible with the forecast income. On the basis of the current requirements included in the document Special Regulations of Annex No. 13 Draft Procurement Contract to the Regulations, which, in our opinion, are slightly inaccurate, and in order to avoid inadequate losses, the tenderers would have to increase price of the proposals, possibly, by several times. When proposing their prices, the merchants will include also the risks, while indirect losses are impossible to predict or calculate, and they may not be insured with any insurance company, since the insurance amount is unknown. Furthermore, when issuing the insurance policies, limit of liability is specified as a condition for the payment of compensation by the insurer, if insurance event occurs. Thus, if the Consultant's liability is unlimited, upon occurrence of insurance event, the insurer may refuse to pay compensation, the Consultant will go bankrupt, and the Employer will have to deal with the consequences at its own expense. Therefore, in practice, responsible Tenderer will never assume unlimited liability for direct or indirect losses. Taking into account the aforementioned, we hereby request the Employer to consider these circumstances and state that the total amount of compensation for the direct losses may not exceed the total contractual price laid down in the Employer/Consultant's standard service contract (FIDIC White Book). We hereby ask to amend also the Regulations and Draft Contract accordingly. Answer 11: We hereby explain that the Contract provides for contractual penalties of two kinds: 1) As specifically stipulated amounts of money. Such contractual penalties have been limited in the specific amounts of money for each violation; 2) Increasing, where each contractual penalty is limited by 10% of the amount of the main obligation. Therefore, we draw your attention that the amounts of contractual penalties laid down in the Contract are limited. We hereby explain that, although the amount of losses is not limited by any amount in the Contract, according to the Latvian legal theory, the duty to compensate for the losses requires four preconditions for the compensation for losses: 1) Unlawful action; 2) Existence of losses and amount thereof; 3) Causal connection between the unlawful action and losses; 4) Guilt. Furthermore, according to Section 17791 of the Civil Law, a person who causes the losses shall compensate the losses in such amount, which could have been reasonably foreseen upon entering into a transaction as expected consequences of non-performance, unless such non-performance has occurred through malicious intention or rough negligence. The Employer has provided for in Clause 7 of the Contract that the Consultant is also obliged to insure its civil liability with regard to all consultant's services, as well as designing works and construction works performed by the contractor, which implements construction designing, author's supervision, construction works of Rail Baltica Riga railway bridge, railway embankment and Riga Central Passenger Station complex construction and other activities for the implementation of the part of global project of Rail Baltica. Taking into account the aforementioned and the circumstance that the consultant performs FIDIC administration of construction designing, author's supervision, construction works of Rail Baltica 8
Riga railway bridge, railway embankment and Riga Central Passenger Station complex construction, expert-examinations, designing supervision and construction supervision, as well as becomes a party to the construction designing, author's supervision, construction works contract of Rail Baltica Riga railway bridge, railway embankment and Riga Central Passenger Station complex construction, there is no reason to limit amount of the consultant's liability to the amount of the Accepted contractual amount laid down in the Employer/Consultant's standard service contract (FIDIC White Book). Question 12: It is mentioned 1.1.3 of the Particular contract conditions (PCC) that: the Consultant has the duty to monitor and coordinate the performers of individual works and Contractor s works so that the project implementation transpired without delay and in as short time as possible. Please confirm that the Consultant shall not be responsible for the management of the Contractor planning but is in charge of supervision only and is directly dependent of Contractor s delays. Answer 12: According to sub-clause 1.1.3. of the Particular contract conditions (Annex No 13 of the Procurement Regulations) the Consultant shall supervise and coordinate the performers of individual works and Contractor s works so that the project implementation transpired without delay and in as short time as possible. Delays of the performance of the duties of the Contractor of the Works Contract and its influence on Consultant s duties shall be evaluated in each case of delay, therefore, the Contracting Authority cannot confirm that in general Consultant is directly dependent of Contractor s delays. Question 13: I refer to 1.7 of the Particular contract conditions (PCC): In any case, the Consultants shall not be liable for future works performed by the Client based on the Project s Works. Please confirm this point. Given the nature of the Consultants Scope of Work, our interpretation is that article 1.7 does not apply. Please confirm that you have the same interpretation. Answer 13: Clause 1.7 of the Particular contract conditions of the Procurement Contract applies to documents created by the Consultant. Clause 1.7 of the Particular contract conditions of the Procurement Contract shall be applied in full and in the wording as stipulated in annex No 13 of the Procurement Regulations. The Consultant is not liable for amendments in the Consultant s documents made by the Contracting Authority. Question 14: Is the list of experts intuitu personae? Answer 14: According to clause 4.1.8. of the Procurement Regulations the Tenderer has an obligation to provide a list of experts (specialists). The mentioned clause contains minimum list of specialists which the Consultant has to provide for performance of the Procurement Contract. During the performance of the Procurement Contract the person who fulfils duties of the respective specialist as stipulated in clause 4.1.8.of the Procurement Regulations can be relaced with another person in accordance with sub clause 3.7.1.of the Particular contract conditions of the Procurement Contract Question 15: We refer to 4.6 and 5.11 of the Particular contract conditions (PCC): What is the difference between Suspension as per 4.6 and Downtime as per 5.11? Does 5.11 apply to all cases of suspension except termination? 9
Answer 15: Clause 4.6.1 of the Particular contract conditions of the Procurement Contract specifies the Contracting Authority s right to order the Consultant to suspend the execution of all or part of the Services, what costs, related to the suspension and resumption of the Services, are included in the Contract Price and other provisions related to the suspension of the Service. Whereas Clause 5.11 of the Particular contract conditions of the Procurement Contract specifies in which cases the Consultant is entitled to receive the Downtime costs in the event of the suspension of the Services or Works specified by the Customer in accordance with the rate specified in Annex 3 [Remuneration and Payment] of the Agreement. In accordance with Clause 5.11 of the Particular contract conditions of the Procurement Contract the Downtime costs (defined in the Annex No.3 [Remuneration and Remuneration]) for design works or the costs of suspension of works before the commencement of construction works shall be applied and paid only if the Customer has determined the downtime before the commencement of Works construction work. The costs of suspension of construction works specified in Annex 3 of the Contract [Remuneration and Remuneration] between the phases of active construction works shall be applied and paid only if the Project Works are completely suspended. It should be taken into account that during the period when the Consultant receives Payments for Downtime, the Consultant is not entitled to receive other payments specified in the Contract. Question 16: We refer to 6.1 of the Particular contract conditions (PCC): In principle, penalties referred to in 6.1 are paid in discharge. Please confirm that this is the case. Answer 16: Contractual penalties can be calculated, claimed and charged in at any time during the Procurement contract (please see sub - clause 6.1.4. and 6.1.5. of the Particular contract conditions of the Procurement Contract). Question 17: We refer to 8 of the Particular contract conditions (PCC): We understand that the applicable law is the law of Latvia. However, it is preferable to keep usual arbitration clause as domestic courts may not have the capacity to manage such a litigation: in ICC proceedings, we can choose experts in a list which is also a guarantee for neutrality. Is it possible to go back to the usual arbitration clause? Answer 17: Disputes arising from the public procurement contracts are not subject to arbitration, because disputes where judgment of arbitration court can affect rights of the state or local municipality cannot be subject to arbitration according to point 1 and 2 of the paragraph 1 of the Article 5 of the Arbitration Law. Therefore, the Contracting Authority is not entitled to return to FIDIC practice to subject dispute resolution to arbitration. Question 18: We will provide the requested tender forms in English and Latvian language. Is it possible to provide the rest of the justifying documents (client certifications, diplomas, experience proofs) in English? Answer 18: The sub clause 1.14.6.of the Procurement Regulations stipulates that the tender (bid) shall be drawn up in Latvian. Tender documents prepared in foreign language shall be annexed a translation into Latvian signed by the translator of the document pursuant to the Cabinet Regulations No. 291 of 22 August 2000 Procedure for the Certification of Document Translations in the Official Language. The Tenderer shall be responsible for compliance of the translated document with the original. 10
Annexes: Annex No. 1 Procedures for the Repayment of the Security of Performance of the Contract ; Annex No. 2 Procedures for the Advance Payments ; Annex No. 3 Procedures for the Repayment of the Deduction Fee. 11