Infrastructure Version of Tendering Instructions for Projects under

Infrastructure Version of Tendering Instructions for Projects under Standard

Rijkswaterstaat DBFM Agreement 3.0

Date: January 2012

Status: Final

January 2012 2

Contents

CONTENTS ...................................................................................................................................... 2

EXPLANATION ................................................................................................................................ 5

1.1 TENDERING INSTRUCTIONS ............................................................................................................ 6 1.2 DEFINITIONS ............................................................................................................................... 6 1.3 CONTRACTING AUTHORITY ............................................................................................................ 6 1.4 PROJECT .................................................................................................................................... 7 1.5 DBFM(O) AGREEMENT ............................................................................................................... 7 1.6 PAYMENT REGIME AND PROJECT FINANCING ..................................................................................... 7 1.7 ABRIDGED DESCRIPTION OF TENDER PROCEDURE ............................................................................... 8 1.8 PLANNING PROCEDURE[S]] .......................................................................................................... 13 1.9 ADMINISTRATIVE AGREEMENT(S) .................................................................................................. 13

2 GENERAL INFORMATION ..................................................................................................... 13

2.1 CANDIDATES’ DECLARATION OF CONSENT ....................................................................................... 13 2.2 APPLICABLE REGULATIONS ........................................................................................................... 13 2.3 SAFEGUARDING OF LEGAL RIGHTS, CHOICE OF COURT ....................................................................... 14 2.4 DISCONTINUATION OF THE PROCEDURE, CANDIDATES’ WITHDRAWAL .................................................. 15 2.5 NOTICE AND ANNOUNCEMENT .................................................................................................... 15 2.6 LANGUAGE ............................................................................................................................... 15 2.7 CEILING PRICE .......................................................................................................................... 16 2.8 PROVISION OF INFORMATION ....................................................................................................... 16 2.9 CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS ................................................................... 17 2.10 GENERAL AND CONFIDENTIAL CLARIFICATION ............................................................................. 18 2.11 ADVISORY COMMITTEES ......................................................................................................... 19 2.12 TENDER BOARD .................................................................................................................... 19 2.13 PROBITY OFFICER ................................................................................................................. 20 2.14 COMMUNICATION ................................................................................................................ 20 2.15 CONFLICTS OF INTEREST ......................................................................................................... 20 2.16 CANDIDATES’/TENDERERS' LIABILITY FOR DOCUMENTS ................................................................. 21

3 SELECTION PHASE ............................................................................................................... 21

3.1 GENERAL ................................................................................................................................. 21 3.2 REGISTRATION .......................................................................................................................... 21 3.3 REQUESTS TO PARTICIPATE .......................................................................................................... 21 3.4 SINGLE INSTANCE OF INVOLVEMENT OF NATURAL OR LEGAL PERSONS ................................................... 22 3.5 CLARIFICATION.......................................................................................................................... 22 3.6 CANDIDATES: SPVS, SPVS IN PROCESS OF INCORPORATION ............................................................... 22 3.7 ARTICLE 6 OF THE DUTCH COMPETITIVE TRADING ACT ..................................................................... 23 3.8 DEMONSTRATING TECHNICAL AND ORGANISATIONAL ABILITY .............................................................. 23 3.9 CHANGES IN THE COMPOSITION OF CANDIDATES, SIGNIFICANT SUBCONTRACTORS, AND SHAREHOLDERS .... 24 3.10 INFORMATION TO BE SUBMITTED ............................................................................................. 24 3.11 GROUNDS FOR EXCLUSION AND THE DUTCH PUBLIC ADMINISTRATION PROBITY IN DECISION-MAKING ACT

(BIBOB) 25 3.12 FINANCIAL AND ECONOMIC STANDING ...................................................................................... 27 3.13 TECHNICAL AND ORGANISATIONAL ABILITY ................................................................................. 28 3.13.1. PROJECT MANAGEMENT EXPERIENCE REQUIREMENT....................................................................... 28 3.14 VERIFICATION BY THE CONTRACTING AUTHORITY ........................................................................ 29 3.15 EVALUATION OF REQUEST TO PARTICIPATE, INVITATION TO DIALOGUE ............................................ 29 3.16 FURTHER SELECTION PROCEDURE ............................................................................................. 30

4 FIRST PHASE OF DIALOGUE ................................................................................................. 30

January 2012 3

4.1 OBJECTIVE ............................................................................................................................... 30 4.2 STARTING CONFERENCE AND DISCUSSIONS WITH THE CONTRACTING AUTHORITY ................................... 31 4.3 ELABORATING THE OUTLINE PROPOSAL / SHORTLISTING OUTPUT* ..................................................... 32 4.4 REQUIREMENTS FOR OUTLINE PROPOSAL / SHORTLISTING OUTPUT* .................................................. 32 4.5 SUBMISSION OF THE [OUTLINE PROPOSAL] / [SHORTLISTING OUTPUT] [TO BE FURTHER SPECIFIED FOR

EACH PROJECT] ................................................................................................................................... 33 4.6 EVALUATION [OUTLINE PROPOSAL] / [SHORTLISTING OUTPUT] [TO BE FURTHER SPECIFIED FOR EACH

PROJECT] ........................................................................................................................................... 34 4.7 CLARIFICATION.......................................................................................................................... 34 4.8 INVITATION TO SECOND PHASE OF DIALOGUE ................................................................................. 34 4.9 COMPENSATION FOR (PRELIMINARY) COSTS .................................................................................... 35

5 SECOND PHASE OF DIALOGUE ............................................................................................. 35

5.1 OBJECTIVE ............................................................................................................................... 35 5.2 CONFERENCE WITH THE CONTRACTING AUTHORITY .......................................................................... 35 5.3 CLARIFICATION.......................................................................................................................... 36

6 THIRD PHASE OF DIALOGUE ................................................................................................ 36

6.1 OBJECTIVE OF THE THIRD PHASE OF DIALOGUE ........................................................................... 36 6.2 START OF THE THIRD PHASE OF DIALOGUE ..................................................................................... 36 6.3 CONFERENCE WITH THE CONTRACTING AUTHORITY .......................................................................... 37 6.4 CLARIFICATION.......................................................................................................................... 37 6.5 EUROPEAN INVESTMENT BANK .................................................................................................... 37 6.6 FINALISING DIALOGUE REPORT – INVITATION TO FINAL SUBMISSION ................................................... 37 6.7 LISTED RISKS ............................................................................................................................ 38

7 FINAL SUBMISSION ............................................................................................................. 40

7.1 OBJECTIVE ............................................................................................................................... 40 7.2 CONTENTS OF FINAL SUBMISSION ................................................................................................. 40 7.4 INTEREST RATE RISK ................................................................................................................... 42 7.5 TENDERING THE FINAL SUBMISSION .............................................................................................. 42 7.6 PRESENT VALUE OF FINAL SUBMISSION .......................................................................................... 43 7.7 ASSESSMENT OF FINAL SUBMISSION.............................................................................................. 43 7.8 CLARIFICATION BY THE TENDERER ................................................................................................. 45 7.9 DESIGNATION OF THE PREFERRED TENDERER .................................................................................. 45 7.10 INSURANCE ......................................................................................................................... 46 7.11 COMPENSATION FOR (PRELIMINARY) COSTS ............................................................................... 47

8 DEFINITIVE AWARD OF CONTRACT / CONTRACT CLOSE AND FINANCIAL CLOSE .................. 47

8.1 OBJECTIVE ............................................................................................................................... 47 8.2 VALIDITY OF UNCONDITIONAL FINAL SUBMISSION – PERIOD ............................................................... 48 8.3 VALIDITY OF UNCONDITIONAL FINAL SUBMISSION – PENALTY ............................................................. 48

SCHEDULE 1: DEFINITIONS ............................................................................................................ 49

SCHEDULE 2: MODELS FOR REQUEST TO PARTICIPATE ................................................................. 53

SCHEDULE 2.1: MODEL FOR REQUEST TO PARTICIPATE ............................................................................... 53 ANNEXES TO REQUEST TO PARTICIPATE: ................................................................................................... 55 SCHEDULE 2.2: MODEL STATEMENT FOR AVAILABILITY OF SIGNIFICANT SUBCONTRACTOR ................................ 57 SCHEDULE 2.3: MODEL FOR SUPPLEMENTAL SELF-DECLARATION (TO BE SUBMITTED IN ADDITION TO THE UNIFORM

SELF-DECLARATION FOR TENDERS) ......................................................................................................... 58 SCHEDULE 2.4: MODEL DECLARATION OF FINANCIAL AND ECONOMIC STANDING ............................................. 62 SCHEDULE 2.5: MODEL DECLARATION OF TECHNICAL AND ORGANISATIONAL ABILITY ........................................ 63

SCHEDULE 3: DRAFT DBFM(O) AGREEMENT ................................................................................. 66

SCHEDULE 4: SUBMISSION FORM FOR FIRST PHASE OF DIALOGUE .............................................. 67

January 2012 4

SCHEDULE 5: EVALUATION OF OUTLINE PROPOSAL / SELECTION OUTPUT* [TO BE FURTHER SPECIFIED FOR EACH PROJECT SEPARATELY] ................................................................................ 68

SCHEDULE 6: LISTED RISKS ............................................................................................................ 70

SCHEDULE 7: EMAS TABLE (THIS SCHEDULE DESCRIBES THE MANNER THAT THE CONTRACTING AUTHORITY EVALUATES THE EMAS CRTIERIA) .............................................................................. 71

SCHEDULE 8: [RESCINDED] ........................................................................................................... 76

SCHEDULE 9: MODELS FOR FINAL SUBMISSION ............................................................................ 77

SCHEDULE 9.1: MODEL TENDERING FORM FOR FINAL SUBMISSION .............................................................. 77 SCHEDULE 9.2: MODEL FOR SUPPER LETTERS FROM SHAREHOLDERS ............................................................ 79 SCHEDULE 9.3: MODEL FOR THE SUPPORT LETTER FROM FINANCIAL ADVISOR................................................ 80 SCHEDULE 9.4: MODEL FOR SUPPORT LETTER FROM SENIOR DEBT PROVIDER ................................................ 81 SCHEDULE 9.5: SUPPORT LETTER FROM THE EUROPEAN INVESTMENT BANK .................................................. 82 SCHEDULE 9.6: FINANCIAL CLOSE GUARANTEE MODEL .............................................................................. 82 SCHEDULE 9.7: REQUIREMENTS FOR THE FINANCIAL PART OF THE FINAL SUBMISSION ...................................... 83

SCHEDULE 10: MODEL K STATEMENT ........................................................................................... 84

SCHEDULE 11: INDEXATION FORMULA ......................................................................................... 85

SCHEDULE 12: SEPARATION OF INTEREST MEMORANDUM .......................................................... 87

January 2012 5

EXPLANATION

This is the Nation-Wide Model of the Tendering Instructions for Projects under

the Infrastructure Version of the DBFM(O) Agreement. This model has been

jointly created by the Government Buildings Agency, Directorate-General Public

Works and Water Management (Rijkswaterstaat), Ministry of Defense and the

Ministry of Finance. Since the various government departments that use this

model have departmental practices for some of the elements involved relating

to the different nature of the projects put to tender, use is made in everyday

practice of separate tendering instructions for housing and infrastructure.

As far as possible, the structure, text and definitions of the tendering

instructions have been made uniform. Matching passages are shown in dark

blue font. The two sets of instructions differ from each other on points

substantiated by the specific character of infrastructure and facilities, as well as

the size of the (financial) [quotation]. For an explanation of the manner in

which the Tendering Instructions are to be used, please see the accompanying

Manual. It also provides information on the most relevant topics.

January 2012 6

1 Introduction

The Tender Procedure for the [project name] project is described in these

Tendering Instructions.

Option

Separate selection instructions

and the preceding Selection Instructions.

The Tendering Instructions are final and the principles laid down in them will

not change during the tendering procedure. Each dialogue phase will see the

publication of a supplement to these instructions that provides further details

about the processes involved in the respective dialogue phase.

The Candidate is responsible for verifying proper receipt of the Tender

Documents. If the Tender Documents have not (all) been received, then the

Candidate must report this to the Contracting Authority by return by means of

an e-mail to the e-mail address cited in paragraph 1.3.

Terms written in these Tendering Instructions with capital letters are defined in

the (draft) DBFM(O) Agreement [because there are a number of definitions in

the DBFM Agreement, the Agreement should always be appended (if necessary,

an uncompleted copy)] or, if not defined in the DBFM(O) Agreement, in these

Tendering Instructions. A list of definitions is provided in Schedule 1

(Definitions).

The Contracting Authority is:

The State of the Netherlands

Ministry [name of Ministry]

[Department]

Project Organisation:

[Names, positions, contact data]

The address for all items to be submitted by Candidates – i.e. items not to be

communicated by electronic means – is:

Contact person: [Name of contact person]

Office address: [address]

[postcode, location]

The delivery address for all items to be submitted by Candidates by electronic

means is:

1.1 Tendering Instructions

1.2 Definitions

1.3 Contracting Authority

January 2012 7

Contact person: [Name of contact person]

E-mail address: [E-mail address]

[The Contracting Authority is also acting on behalf of [names of any other

authorities participating in the tender]

The project comprises all the work, deliveries and services that must be

performed under the DBFM(O) Agreement resulting from this tender in

connection with [brief description of the scope of the Project follows].

Outlines of the Project Schedule

This Schedule is indicative and no rights can be derived from it.

The draft DBFM(O) Agreement is attached as Schedule 3.

At the end of the Dialogue, the draft DBFM(O) Agreement shall be

supplemented with the results from the Dialogue.

The [•] symbol in the DBFM(O) Agreement and Schedules indicates that further

details shall be added by the Contracting Authority in a manner that will be

identical for all Candidates.

The symbol [••] indicates where items for specific candidates are included in

the DBFM(O) Agreement.

During the term of the DBFM(O) Agreement the Contractor shall receive a

performance-dependent availability payment.

The Contractor shall furthermore receive a one-off payment upon completion.

The Contractor is responsible for the financing of the Project. The financing

must be structured in such a way that financial institutions make external

capital available to the contractor, or at least guarantee such, based on the

basic principles of project financing.

This financial institution must possess a Long-Term Issue Credit Rating issued

by Standard & Poor's of at least [rating requirement] or by Moody's of least

1.4 Project

1.5 DBFM(O) Agreement

1.6 Payment regime and project financing

January 2012 8

[rating requirement] or by Fitch of at least [rating requirement], or a

comparable credit rating issued by a similar internationally-recognised

independent rating agency. Aforementioned requirement applies at Financial

Close. In derogation of the above, the aforesaid requirements apply to Final

Submission instead of Financial Close for Financers for whom the Candidate has

submitted a support letter (Schedule 9.4) with the Final Submission.

The Contracting Authority shall enter into a Direct Agreement with the

Contractor and the respective financing parties and, if necessary, shall

cooperate in pledging the Net Availability Payment. A draft for the Direct

Agreement shall be attached to the DBFM(O) Agreement as Schedule *.

The Contracting Authority will discuss the process of obtaining finance for the

Project with Candidates and will closely follow the situation on the financial

markets. The evolving situation may lead to certain adaptations in the Tender

Documents. The Contracting Authority furthermore reserves the right to change

the process for obtaining financing for the Project if prompted by circumstances

on the credit markets.

[to be further specified for each project separately]

1.7.1 Phasing of the Tender Procedure

The Tender Procedure shall proceed in a number of phases. These phases are

indicated in the table below. The dates are provisional and may be changed in

the course of the Tender Procedure.

Selection Phase

Circulation of Notice

Submission of requests to participate

Assessment of requests to participate


Term for safeguarding of legal rights of unselected

Candidates

First Phase of Dialogue ([number] Candidates)

Invitation for First Phase of the Dialogue

Starting conference

Variant 1: Submission of Outline Proposal or other

Shortlisting Output [if Dialogue starts with more than

three parties and a short list has to be drawn up]

Variant 2: Start of consultation phase [if Dialogue

starts with three parties and no short list needs to be

drawn up] [or, if necessary, any project-specific

details about the First Phase of Dialogue; there may,

for example, only be consultation in the first phase

and Dialogue Output only in the second phase].

1.7 Abridged description of Tender Procedure

January 2012 9

[N.B. The Dialogue does not per se have to consist of

three phases. There may also be fewer phases; to be

further specified for each project].

[to be further specified for each project separately;

see manual]

Second Phase of Dialogue (3 Candidates)

Invitation to Second Phase of Dialogue

Second Phase of Dialogue

[Dialogue Phase in which consultation occurs with

the Candidates about the tender specifications and

the DBFM(O) Agreement; to be further specified for

each project separately; see manual]

Third Phase of Dialogue (3 Candidates)

Invitation to Third Phase of Dialogue

Third Phase of Dialogue

[Dialogue Phase in which the DBFM(O) Agreement is

established with the Candidates in its final form so

that, after conclusion of the Dialogue, the Candidates

can provide a Final Submission; to be further

specified for each project separately; see manual]

Conclusion of Dialogue and establishment of

DBFM(O) Agreement

Final Submission Phase (3 Tenderers)

Invitation to Tender a Final Submission

Tendering of Final Submission

Assessment of Final Submission

Designation of the Preferred Tenderer

Term of safeguarding legal rights of non-selected

Tenderers


Completion (1 Candidate)

Contract Close

Financial Close

January 2012 10

1.7.2 Procedure description

Selection Phase

The Tender Procedure starts with the Selection Phase. Selection takes place on

the basis of an evaluation of grounds for exclusion and of suitability

requirements. The Contracting Authority shall invite Candidates to participate in

the Dialogue in the absence of any grounds for their exclusion and on condition

that they have met the suitability requirements.

Option

Reduction of the number of Candidates by ranking or a combination of

ranking and drawing lots

Should more than [number] Candidates come into consideration for an

invitation to take part in the Dialogue then a further selection shall be carried

out to arrive at [number] Candidates to be invited to take part in the Dialogue.

This Selection Phase is further described in Chapter 3.

Dialogue

The Contracting Authority avails itself of the option of conducting the Dialogue

in successive phases as per Article 29, paragraph 4 of Directive 2004/18/EC. In

the present Tender Procedure, the Dialogue consists of the following phases:

First Phase of Dialogue;

Second Phase of Dialogue;

(Option: Third Phase of Dialogue (if the first phase is used for

shortlisting))

During the First Phase of Dialogue, the Contracting Authority shall provide the

Candidates with information and, if the Dialogue begins with more than three

parties, request an Outline Proposal or Shortlisting Output. This shall then be

used to establish a short list of three parties.

Variant 1

Reducing the number of Candidates in the Dialogue by shortlisting:

(If Dialogue begins with more than three parties, and a short list has to be drawn up)

See explanation of option 1 (Reduction of the number of Candidates) in the manual

In the First phase Dialogue the number of Candidates invited for the

continuation of the tendering procedure is reduced to three – if more than three

Candidates appear to meet the minimum requirements. This can occur by

means of evaluation of the Outline Proposals of the Candidates or by applying

another shortlisting mechanism (with the help of Shortlisting Output). Any

shortlisting occurs based on qualitative EMAS criteria. The Contracting Authority

shall select three Candidates to invite to participate in the Second Phase of

Dialogue on the basis of its evaluation of their Shortlisting Output.

January 2012 11

Variant 2:

If the Dialogue begins with three parties and a short list does not have

to be drawn up

In the First Phase of Dialogue, consultations shall take place between the

Contracting Authority and the Candidates in order to optimise the Tender

Documents and to determine the outline solutions that best satisfy the

Contracting Authority’s needs.

[If variant 2 is adopted, the Dialogue may only consist of two phases.

The First Phase of Dialogue is described in Chapter 4.

In the Second Phase of Dialogue, the Contractor will further coordinate the

content of the DBFM(O) Agreement with the Candidates and, if necessary,

make adjustments. No selection shall take place during the Second Phase of Dialogue.

Based on the results of the Second Phase of Dialogue, the Contracting Authority

shall be able to review the Tender Documents for all Candidates on an equal

basis. The Second Phase of Dialogue is described in Chapter 5.

In the Third Phase of the Dialogue, the Contracting Authority will prepare the

DBFM(O) Agreement so that the Candidates can make Final Submissions. No

selection shall take place during the Third Phase of Dialogue. The Third Phase of

Dialogue is described in Chapter 6.

Final Submission Phase

The Final Submission phase follows the Contracting Authority's completion of

the Third Phase of Dialogue. This phase is described in Chapter 7.

The Project is awarded according to the criterion of the most economically

advantageous tender.

January 2012 12

Schematic representation of Tender Procedure

Option 1: Shortlisting in the First Phase of Dialogue

Selectiefase

Dialoog

InschrijvingsfaseContract Close (CC) &

Financial Close (FC)Eerste

fase

Tweede

fase

Derde

fase

n deelnemers 3 deelnemers 1 deelnemer

1)

Aa

nko

nd

igin

g

2)

Uitn

od

igin

g d

ialo

og

3)

Uitn

od

igin

g v

oo

r h

et

do

en

va

n e

en

De

finiti

eve

In

sch

rijv

ing

4)

Aa

nw

ijzin

g

Ge

sele

cte

erd

e

Insc

hrijv

er

5)

Be

reik

en

Co

ntr

act

Clo

se &

Fin

an

cia

l Clo

se

2A

) U

itno

dig

ing

volg

en

de

fa

se d

ialo

og

Aanbesteder

Gegadigde

Aa

nm

eld

en

Insc

hrijv

en

Gegadigden Inschrijvers

Option 2: Further selection to three and no selection during Dialogue

Selectiefase

Dialoog

InschrijvingsfaseContract Close (CC) &

Financial Close (FC)Eerste

fase

Tweede

fase

Derde

fase

n deelnemers 3 deelnemers 1 deelnemer

1)

Aa

nko

nd

igin

g

2)

Uitn

od

igin

g d

ialo

og

3)

Uitn

od

igin

g v

oo

r h

et

do

en

va

n e

en

De

fin

itie

ve

In

sch

rijv

ing

4)

Aa

nw

ijzin

g

Ge

se

lecte

erd

e

Insch

rijv

er

5)

Be

reik

en

.Co

ntr

act C

lose

&

Fin

an

cia

l C

lose

Gegadigde

Aa

nm

eld

en

Insch

rijv

en

Aanbesteder

Gegadigden Inschrijvers

January 2012 13

[Description of the plan, status and progress of planning procedure[s] and

relation to the Tender Procedure of the Project; to be further specified for each

project separately.]

The final results of the proceedings pursuant to the Transport Infrastructure

(Planning Procedures) Act and other planning procedures could affect the

further progress of the Tender Procedure and the precise contents of the

Project. Candidates should take this into account.

To prepare for this Tender Procedure, the Contracting Authority and [names of

other public parties] concluded an administrative agreement on [date]. [to be

further specified for each project separately]

The Requirements deriving from the administrative agreement are included in

the DBFM(O) Agreement.

[The information shall be updated during the Tender Procedure. If necessary,

other relevant environmental agreements are also reported here.]

2 General information

In submitting a request to participate, the Candidates declare their

unconditional consent with the Tender Procedure described in these Tendering

Instructions.

The Tender Procedure shall be conducted as a competitive Dialogue (Article 29

of Directive 2004/18/EC, Article 29 Resolution on rules governing tenders for

public contracts, and Chapter 4 of the Dutch Tender Regulations for Public

Works of 2005).

Unless otherwise stated in the Tendering instructions the legislation and

regulations applicable to the Tender Procedure shall include the following:

• Directive 2004/18/EC of the European Parliament and of the Council of

31 March 2004 (OJ. L 134/114, 30 April 2004) on the coordination of

procedures for the award of public works contracts, public supply

contracts and public service contracts as last amended by Commission

Regulation (EC) 1177/2009 of 30 November 2009 (OJ. L 314/64, 1

December 2009);

• Directive 89/665/EC of the European Parliament and of the Council of 21

December 1989 (OJ. L 395/33, 30 December 1989) on the coordination

1.8 Planning procedure[s]]

1.9 Administrative agreement(s)

2.1 Candidates’ declaration of consent

2.2 Applicable regulations

January 2012 14

of laws, regulations and administrative provisions relating to the

application of review procedures to the award of public supply and public

works contracts, as last amended by Directive 2007/66/EC (OJ . L

335/31, 20 December 2007) of the European Parliament and of the

Council of 11 December 2007 amending Council Directives 89/665/EEC

and 92/13/EEC with regard to improving the effectiveness of review

procedures concerning the award of public contracts;

• Dutch Decree on Procurement Rules for Government Tenders (BAO),

Bulletin of Acts and Decrees 2005, 408 (subsequently amended in

Bulletin of Acts and Decrees 2010, 67) on the basis of EEC Framework

Act on the regulation of tenders;

• Dutch Decree Implementing Policy Rules on Tenders for Public Works of

2005 (Government Gazette 2005, 207) and thereby the Dutch Tender

Regulations for Public Works of 2005).

• Dutch Policy Rules on Tenders for Works 2005 (Government Gazette

2005, 207);

• Dutch Public Administration Probity in Decision-Making Act (Wet BIBOB,

as amended in Bulletin of Acts and Decrees 2008. 492) and the Policy

Rules Concerning Integrity and Exclusion from Invitations to Tender in

BIBOB Sectors (BIBOB Policy Rules, as amended in Government Gazette

2005, 251)

The Contracting Authority shall notify the Candidates in writing of decisions

concerned with the observance of law, in the meaning of Article 1, paragraph 1

of Directive 89/665/EEC, concerning the Tender Procedure.

A decision to designate a Preferred Tenderer as referred to in paragraph 7.9 of

the Tendering Instructions will in any event be communicated to the respective

Candidate(s) / Tenderer(s) electronically or via fax. This notification shall

contain the relevant reasons for the decision, as well as an accurate description

of the term of 15 calendar days mentioned below.

Should a Candidate object to the decision then the Candidate should initiate

interim injunction proceedings against the decision of the Contracting Authority

within 15 calendar days of the issue of the decision by the Contracting

Authority. Proceedings are pending starting on the day of the summons (Article

125 of the Code of Civil Procedure).

This term is a peremptory time limit. This means that if a Candidate does not

actually file for preliminary injunction within 15 calendar days of the issue of

the decision then the Candidate can no longer lodge an objection to the

decision. In such a case the Contracting Authority would be free to (further)

pursue the decision.

If, during this period, a preliminary injunction is sought with regard to a

decision as specified in paragraph 7.9 of the Tendering Instructions, the

Contracting Authority shall not conclude the Agreement before the Court (of

2.3 Safeguarding of legal rights, Choice of court

January 2012 15

first instance) has reached a decision about the request for provisional

measures and the period is expired.

Any dispute between the parties involved in the Tender Procedure arising on

account of the Tender Procedure, to which the Tendering Instructions apply,

must be submitted to the civil courts at The Hague.

The Contracting Authority may prematurely discontinue the Tender Procedure.

Should the Contacting Authority discontinue the Tender Procedure after the

Selection Phase, the Contacting Authority shall pay the Candidates a reasonable

compensation, to be determined by the Contacting Authority, for the costs

incurred by the Candidates, according to the stage of the Tender Procedure

reached and according to the efforts pledged by the Candidates up to that

point, which compensation shall not exceed the maximum accommodation

payment for (preliminary) costs cited in paragraphs 4.9 and 7.10 of these

Tendering Instructions respectively.

Candidates may withdraw from the Tender Procedure prior to making their Final

Submission without being liable for compensation with regard to the

Contracting Authority.

Candidates that have been invited to participate in a subsequent phase of the

Tender Procedure but that nonetheless withdraw of their own accord shall have

no claim to any compensation for (preliminary) costs.

Notice is sent on [date] to the Office for Official Publications of the European

Communities, the Dutch government gazette “Staatscourant”, the “Cobouw”

website / other nationally distributed newspapers]. The Tender Procedure is

furthermore announced on the internet site found at

[www.aanbestedingskalender.nl].

[No advance notice was published.] / [The advance notice was published in the

Official Journal Supplement on [date].]

This Tender Procedure is to be conducted in the Dutch language. Unless

otherwise indicated by the Contracting Authority, items to be submitted to the

Contracting Authority by the Candidates must be in Dutch.

In derogation of the principle that all submitted documents must be written in

Dutch, the Contracting Authority shall permit the following documents to be

submitted in English, German or French:

- Verklaring Omtrent het Gedrag (VOG, Certificate of Good Conduct).

2.4 Discontinuation of the procedure, Candidates’ withdrawal

2.5 Notice and Announcement

2.6 Language

January 2012 16

- extract from a Trade Register;

- copy of valid proof of identity;

- financial and economic standing requirement;

- power of attorney.

In derogation of the principle that all submitted documents must be written in

Dutch, the Contracting Authority shall permit the following documents to be

submitted in English:

- Original Financial Model

- Financing plan

[Details relating to reference projects may be submitted in English.]

The Ceiling Price for the performance of the DBFM(O) Agreement is EUR [*]

excluding VAT, [price level at 1 January [number of year].]

[This Ceiling Price is based on the assumption that the Listed Risks cited in

Schedule 6 are Compensation Events. This entails that, when a Listed Risk

occurs, the Candidate shall be compensated according to the regulations in the

DBFM(O) Agreement regarding a Compensation Event (Article 9.3 and Schedule

2, paragraph 3 of the DBFM Agreement). Pursuant to this principle the

Contracting Authority bears the Listed Risks.

The Contracting Authority points out that the actual allocation of risks shall only

become apparent during Final Submission. As a consequence, certain Listed

Risks may ultimately be assumed entirely or partially by the Contractor. The

Ceiling Price shall partly depend on the risks that the Candidate assumes in the

Final Submission.

During the Dialogue, the Contracting Authority shall provide a written report of

the impact that the risk allocation chosen by the Candidate shall have on the

Ceiling Price. In the Final Submission, Candidates must specify the risks to be

borne by the Candidate. The Final Submission associated with the risk profile

selected by the Candidate may not exceed the Ceiling Price. Submissions in

breach of the foregoing shall be considered void. In the Invitation to Tender a

Final Submission, the Contracting Authority shall announce the Ceiling Prices

associated with the various risk profiles. [The preceding paragraphs are only

included if the Listed Risk option is implemented]

The Contracting Authority reserves the right to implement generic adjustments

to the Ceiling Price during the following phases of the Tender Procedure.

Candidates shall always be promptly informed of such.

2.8.1 Website

2.7 Ceiling Price

2.8 Provision of information

January 2012 17

For the purpose of this Tender Procedure, the Contracting Authority has set up

an [extranet site] at the URL [address follows]. [Candidates may obtain user

names and passwords from the Contracting Authority.]

2.8.2 Data Room – Dissemination of information

To facilitate this Tender Procedure, the Contracting Authority has installed a

virtual Data Room on an extranet. This data room can be supplemented with

data until [number] weeks before the issue of the Invitation to Tender a Final

Submission. The Candidates shall sign an agreement with the Contracting

Authority, on the basis of which they shall be granted access to the extranet. To

facilitate this Tender Procedure, the Contracting Authority shall disseminate the

information to be supplied digitally – as far as possible – in both PDF and Word

file format. In case of any discrepancies between the formats, the PDF version

shall prevail.

During the Dialogue, the Contracting Authority shall promptly determine which

information in the Data Room is to be designated as being “Disseminated

Information” in the sense of the DBFM(O) Agreement. The Contracting

Authority bears no responsibility for the accuracy or completeness of

information not designated Disseminated Information.

2.8.3 Electronic communication

This Tender Procedure makes use of the possibility of communication between

the Contract Authority and the Candidates by electronic means.

Information sent electronically between the Contracting Authority and the

Candidates shall, whenever possible, be provided in both PDF and Word format.

In case of any discrepancies between the formats, the PDF version shall prevail.

2.9.1 Confidentiality to be observed by the Candidates

By participating in the Tender Procedure, the Candidates place themselves

under obligation to maintain the confidentiality of all the information they

receive from the Contracting Authority, provided the information is not in the

public domain, and not to disclose it to third parties. Candidates may, however,

make such information available to subcontractors involved in the Tender

Procedure, provided they subject them to this condition of confidentiality. This

obligation is not valid if the Tendering Instructions, or any other

communications of the Contracting Authority, explicitly state otherwise.

2.9.2 Confidentiality to be observed by the Contracting Authority and

intellectual property rights

The following are designated as being confidential:

2.9 Confidentiality and Intellectual Property Rights

January 2012 18

a) Reference materials, Outline Proposals, Shortlisting Output, Dialogue

Output and Final Submissions;

b) Confidential Clarification in the meaning of 2.10.2;

c) all other information – of any nature – that is confidential.

Confidential information shall be treated by the Contracting Authority as such.

The Contracting Authority shall therefore not make confidential information

known to third parties – under which other Candidates are included – unless the

Contracting Authority is reasonably bound to disclosure on account of a legal

obligation or within the context of a lawsuit. Before the Contracting Authority

supplies third parties with confidential information in such situations, it shall

consult with the respective Candidate concerning the form of disclosure least

objectionable to the latter, without prejudice to the Contracting Authority’s

fulfillment of the aforementioned obligations.

By participating in the Tender Procedure, the Candidates contingent intellectual

property rights are not transferred to the Contracting Authority, unless agreed

otherwise.

During the Tender Procedure Candidates may request the Contracting Authority

for clarification of the project and the Tender Documents. Requests for

clarification may give cause to the Contracting Authority’s issue of General and

Confidential Clarification.

The Contracting Authority may also provide the Candidates with clarification at

its discretion.

The Contracting Authority shall state the deadline date for each phase of the

Tender Procedure for the submission of requests for clarification.

2.10.1 General Clarification

In principle, the Contracting Authority shall respond to requests for clarification

by providing General Clarification. A General Clarification consists of

adaptations, consequences and explanatory statements, or any other type of

information about either the Project or the Tender Documents, which are

identically worded and equally valid for each Candidate.

If the Contracting Authority responds to a Candidate’s request for clarification

by means of General Clarification then the Contracting Authority will publish

this request anonymously and answer it in a way accessible to all Candidates.

2.10.2 Confidential Clarification

2.10 General and Confidential Clarification

January 2012 19

Should the processing of a Candidate’s request for clarification through General

Clarification result in the disclosure of confidential information concerning the

solutions proposed or carried out by the Candidate, or any other confidential

business information, then the Candidate can justifiably request that said

request be processed as a Confidential Clarification. The Contracting Authority

is to make the decision concerning such a request.

Should the Contracting Authority consent to this request then the Contracting

Authority shall then only inform the relevant Candidate by means of a

Confidential Clarification. Should the Contracting Authority deny this request, it

will provide notification of the denial without providing any (General or

Confidential) Clarification based on this request, unless the request for

(Confidential) Clarification relates to an error in the Tender Documents, about

which the Contracting Authority must inform the other Participants.

Should the proposed or implemented solutions only be possible by making

adjustments to the Project or the Tender Documents, and should the

Contracting Authority consider such adjustments to be in its interests, then the

Contracting Authority may provide General Clarification entailing an adjustment

to the Project or the Tender Documents. The Contracting Authority shall confer

on the wording of the General Clarification with the Candidate that made the

request for clarification. The Candidate may in this context propose a wording

for the General Clarifications to the Contracting Authority.

Should this conferring not lead to agreement concerning the wording of the

General Clarifications to be supplied, then the respective Candidate is permitted

to withdraw its request for (Confidential) Clarifications and the Contracting

Authority will not supply any (Confidential or General) Clarifications as a

consequence of the withdrawn request, unless the request for (Confidential)

Clarifications pertained to an error in the Tender Documents that should be

communicated by the Contracting Authority to the other Participants.

Option

During the various phases of the Tender Procedure, the Contracting Authority

may set up one or more advisory committees. The members of these advisory

committees may be different for each phase. When the Contracting Authority

sets up an advisory committee then the names of the members shall be made

known to the Candidates.

Within the context of this Tender Procedure, Candidates are barred from

entering into contact with the members of advisory committees, just as

members of advisory committees are prohibited from contacting Candidates

about the invitation to tender.

Option (specifically involves projects of over 200 million subject to the

corporate tender board)

2.11 Advisory committees

2.12 Tender board

January 2012 20

The Contracting Authority will obtain advice and support from a tender board

during the decision-making process involved in the Tender Procedure. The

tender board is comprised of the following persons:

[names and positions]

Within the context of this Tender Procedure, Candidates are barred from

entering into contact with the members of tender board, just as members of

tender board are prohibited from contacting Candidates about the invitation to

tender.

Option

The Contracting Authority has appointed one or more Probity Officers that shall

be participate in the Dialogue belonging to the bilateral consultations between

Candidates and the Contracting Authority. The Probity Officer monitors the

tender process. The Probity Officer supervises the evaluation process.

[to be completed for each project]

The Candidates are not permitted to communicate about the call for tender and

the Project with the employees of the Contracting Authority, advisors of the

Contracting Authority or other persons or legal entities that are involved on the

side of the Contracting Authority in the call for tender and the preparation of

the Project, in a manner different from the one stipulated in these Tendering

Instructions, except after written permission from the Contracting Authority.

Candidates should submit requests for the granting of such written permission

as a request for clarification to the Contracting Authority.

Candidates who act in breach of the provisions of this paragraph can be

excluded from (further) participation in the call to tender.

The Contracting Authority may exclude a Candidate from (further) participation

in the Invitation to Tender if the latter is or has been involved with the

Contracting Authority in preparing the Invitation to Tender or this Candidate

makes use of companies, advisers, employees and other natural or legal

persons that are or were involved the Invitation to Tender. The same applies if

natural or legal persons affiliated with the Candidate have or had such

involvement.

The Contracting Authority shall, on the basis of the memorandum "Separation of

interest: the policy to prevent conflicts of interest in tendering" dated 14 September

2007 (see Schedule 12) investigate if there are any conflicts of interest and

subsequently determine the appropriate action.

2.13 Probity Officer

2.14 Communication

2.15 Conflicts of Interest

January 2012 21

The Contracting Authority shall not exclude a Candidate if the latter

demonstrates that, under the circumstances of the specific case, competition is

not compromised by the involvement in question.

The Contracting Authority’s taking cognisance of documents submitted by the

Candidate during the Dialogue does not imply that the Contracting Authority is

liable or responsible for the content of those documents. The Contractor bears

the responsibility for the performance of the work in accordance with all

requirements arising from the DBFM(O) Agreement.

3 Selection Phase

It is during this phase that Candidates qualify as participants in the First Phase

of the Dialogue. For this purpose, the Contracting Authority shall evaluate

Candidates that have submitted a request to participate based on the grounds

for exclusion and suitability requirements described in this chapter.

The Candidate must fulfil the requirements set forth in this chapter and must

completely fill out the forms covered in Schedule 2. Incompletely filled out

forms may lead to exclusion from (further) participation in the Tender

Procedure.

Interested Parties can register, after which they will receive the [Tendering

Instructions] / [Selection Instructions][choice depends on whether separate

Selection Instructions are issued]. Interested Parties can register with the

Contracting Authority until [date][by email to the address [[...]@[...][nl/com] /

by fax at the fax number [...] / by [regular] / [registered] mail [with

acknowledgement of receipt] to the address indicated in paragraph 1.3]. The

Contracting Authority shall send the General Clarifications to be provided in

connection with the Selection Phase to all registered parties.

Candidates must submit their request for participation stating the "[project

name]" on [date] between [time] and [time] at the Contracting Authority at

[office address] / [e-mail address] reported in paragraph 1.3. The Contracting

Authority shall afford Candidates the opportunity to submit the request to

participate at an earlier time. To do so, Candidates are to reach agreement with

the Contracting Authority via email.

2.16 Candidates’/Tenderers' liability for documents

3.1 General

3.2 Registration

3.3 Requests to participate

January 2012 22

A request to participate should consist of an original copy of all documents to

be submitted in accordance with the overview of the tabs included in Schedule

2.1. Two copies of all original documents must also be included.

Requests to participate must entirely adhere to the model prescribed in

Schedule 2.1 and must be signed by an authorised representative.

Requests to participate not received by the Contracting Authority within the

time limit specified in this paragraph, are null and shall not be accepted by the


Natural or legal persons may only participate as Candidates once and may only

be involved as a Significant Subcontractor (other than the Candidate itself) or a

Shareholder via a single Candidate. In terms of the applicability of this

condition, natural or legal persons that meet the conditions given below are

considered as being one natural or legal person:

a. natural or legal persons affiliated with each other as per Article 2: 24a of

the Dutch Civil Code; or

b. natural or legal persons associated with each other as a group as per

Article 2: 24b of the Dutch Civil Code; or

c. (legal) persons affiliated with each other in a way comparable to

subsection 1 or subsection 2 according to foreign laws.

Candidates submit requests for clarifications no later than [date] by e-mail / fax

/ mail sent to the office address / email address cited in paragraph 1.3. The

provisions of paragraph 2.10 shall apply to such clarification.

In principle, requests not submitted in time shall not be accepted by the


The Contracting Authority shall promptly supply General Clarifications for

requests submitted no later than [date].

The Contractor must be an SPV (Special Purpose Vehicle). The DBFM(O)

Agreement shall be signed with the SPV.

The following may apply as Candidates:

(a) the SPV, if already operational, or – should the SPV not be

operational,

3.4 Single instance of involvement of natural or legal persons

3.5 Clarification

3.6 Candidates: SPVs, SPVs in process of incorporation

January 2012 23

(b) one or more natural or legal person(s) (joint parties) acting on behalf

of the SPV in process of incorporation.

Should the situation under b. above involve two or more legal persons (joint

parties) applying on behalf of the SPV in process of incorporation then one of

those parties must be designated as the SPV’s representative in the model for

request to participate supplied in Schedule 2.1 under a. The lead party must be

able to legally represent the other legal persons applying on behalf of the SPV

in the process of incorporation as far as matters affected by this Tender

Procedure are concerned. The Candidate vouches for said authorisation vis-à-

vis the Contracting Authority.

In the case cited under (b) above, the SPV must be operational no later than

the day prior to Contract Close and must by then have certified the legal

procedures undertaken on account of it by the natural or legal person(s) cited

under (b) above. The Contracting Authority must – without submitting any

request to that effect, receive, immediately upon incorporation and certification,

evidence of said incorporation and certification.

The Contracting Authority makes Candidates abundantly aware that it is

prohibited to enter into agreements having the aim or effect of reducing,

restricting or disrupting competition on the Dutch market or any portion of it.

The Contracting Authority is authorised to report Candidates to the Dutch

competition authorities if the Contracting authority suspects them to be in

breach of the Dutch Competitive Trading Act with regard to the Project because

they have entered into an Agreement, contributed to a decision by an business

association or undertaken concerted practices in collaboration with one or more

companies).

3.8.1 General

Candidates must provide proof that, either on their own or by availing

themselves of the technical expertise (experience) of one (or more) third

parties, they fulfil the suitability requirements cited in paragraphs 3.13.1 and

3.13.2. Should a Candidate avail itself of one or more third parties – Significant

Subcontractors – it must then provide proof when submitting its request to

participate that and the manner in which it shall (or might) indeed avail itself of

the experience of the third parties. It is for this purpose that the model

statement supplied in Schedule 2.2 shall be completed and signed by the

Significant Subcontractors.

3.7 Article 6 of the Dutch Competitive Trading Act

3.8 Demonstrating technical and organisational ability

January 2012 24

3.8.2 Use of third parties: Significant Subcontractors

A Significant Subcontractor is considered to be a natural or legal person whose

technical competence is employed by a Candidate to fulfil one or more

requirements with regard to technical competence.

Significant Subcontractors must actually be used in executing the Project.

3.8.3 Experience gained jointly

A Candidate may - either itself or, in turn, via one or more Significant

Subcontractors - only make use of experience contracted jointly, if the

Candidate or Significant Subcontractor was actually involved in the relevant

works in terms of the suitability requirements set forth in paragraphs 3.13.1

and 3.13.2.

The Candidates may propose changes in their composition, the designation of

other Significant Contractors (other than the Candidates themselves) or the

designation of Shareholders.

The Contracting Authority must give its explicit written consent to such

changes, and certain conditions may be attached to said consent. The

Contracting Authority shall not withhold its consent on unreasonable grounds.

This consent requires that the Candidate at least demonstrate that after the

changes all the requirements placed on Candidates, Significant Subcontractors

(not themselves Candidates) or Shareholders arising in the context of this

tender agreement up to that point shall be met. If further selection occurs, this

consent shall also require the Candidate to demonstrate that, under the criteria

for further selection, its new composition shall qualify for a higher position in

the ranking.

Consent shall only be given to changes after the end of the Third Phase of

Dialogue if there is (very) special circumstances, such as a (potential)

bankruptcy situation.

Along with a request to participate, Candidates must submit the following

information regarding the Candidates themselves, Significant Subcontractors

and Shareholders:

Request to participate including all documents pertaining thereto (Annex

2.1).

Declaration(s) of availability of Significant Subcontractors (paragraph

3.8) including all documents pertaining thereto (Annex 2.2).

3.9 Changes in the composition of Candidates, Significant Subcontractors, and Shareholders

3.10 Information to be submitted

January 2012 25

Self-declarations (paragraph 3.11), including all documents pertaining

thereto (Schedule 2.3).

Statement of financial and economic standing (paragraph 3.12) including

all documents pertaining thereto (Annex 2.4).

• References regarding project management experience (paragraph

3.13.1) including all documents pertaining thereto (Annex 2.5).

• Any reference(s) regarding project financing experience (paragraph

3.13.2) including all documents pertaining thereto (Schedule 2.5).

A list of documents to be submitted is included in the overview of the tabs in

Annex 2.1.

3.11.1 Compulsory grounds for exclusion

The Contracting Authority shall exclude any Candidate, Significant

Subcontractor, or Shareholder participating or involved in the tendering

procedure to which one or more of the circumstances apply that are set forth in

Article 45, paragraph 1 of Directive 2004/18/EG, more specifically described in

Article 45, first paragraph of the Dutch Decree on Procurement Rules for

Government Tenders; see 3.7.1 of the Dutch Tender Regulations for Public

Works of 2005), or more specifically described in the national laws of other

states.

Thus, any Candidate, Significant Subcontractor, or Shareholder shall be

excluded from participation or involvement in this Tender Procedure, if

sentenced has been passed on it with decree absolute under Articles 140; 177;

177a; 178; 225; 226; 227; 227a; 227b or 323a; 328, third subsection, second

paragraph; 416; 417; 417, second subsection; 420, second subsection; 420,

third subsection or 420 fourth subsection of the Dutch Penal Code or under the

equivalent articles of the national laws of other states.

The Contracting Authority may make an exception to the aforementioned

exclusion on account of compelling reasons of general interest.

3.11.2 Optional grounds for exclusion

The Contracting Authority may exclude any Candidate, Significant

Subcontractor and Shareholder from participation or involvement in the Tender

Procedure to whom one or more of the circumstances set forth in Article 45,

paragraph 2 of Directive 2004/18/EC as implemented in Article 45, third

paragraph of the Decree on Procurement Rules for Government Tenders (BAO)

are applicable.

Thus Candidates, Significant Subcontractors, or Shareholders may be excluded

from participation or involvement in the Tender Procedure if they:

3.11 Grounds for exclusion and the Dutch Public Administration Probity in Decision-Making Act (BIBOB)

January 2012 26

a. find themselves in a state of bankruptcy or liquidation, if their business

operations have ceased, if they are subject to a judicial settlement or

some other comparable situation as a result of an analogous procedure

according to the laws and regulations of a member state of the European

Union applicable to them.

b. are subject to bankruptcy or liquidation claims, or if they are pending some

other analogous procedure according to the laws and regulations of a

member state of the European Union applicable to them;

c. have been subject to a conclusive judicial ruling according to the laws and

regulations of a member state of the European Union applicable to them,

where an offence in breach of the rules of professional conduct was

determined;

d. have committed a serious offence in the exercise of their professional

activity, determined according to the plausible case made by the

Contracting Authority;

e. have not fulfilled their obligations with respect to the payment of social

security contributions in conformity with the legal requirements of the

country in which they are seated or those of The Netherlands;

e. have not fulfilled their obligations with respect to tax payments in

conformity with the legal requirements of the country in which they are

seated or those of the Netherlands.

g. are guilty of making false declarations of a serious nature concerning

information that can be requested as per Articles 45 to 53, inclusive, of

the Decree on Procurement Rules for Government Tenders (BAO), or

have failed to provide such information.

3.11.3 Uniform self-declaration, Supplemental self-declaration

and Certificate of Good Conduct

As proof that there are no grounds for exclusion a Candidate should submit a

Certificate of Good Conduct (CGC) with the application as well as completing

and submitting the Supplemental Self-declaration included as Schedule 2.3, in

addition to the Uniform Self-declaration for Tenders. The CGC must relate to

the current situation of the Candidate, Significant Subcontractor or

Shareholder. It is sufficient for the time being for a Significant Subcontractor or

Shareholder to complete and submit the Supplemental Self-declaration

attached as Schedule 2.3, in addition to the Uniform Self-declaration for

Tenders. The Candidate, Significant Subcontractor or Shareholder is required to

remain in compliance with the declarations during the tender.

A completed (Uniform or Supplemental) Self-declaration shall count as being

the Candidate’s, Significant Subcontractor’s or Shareholder’s Self-declaration.

Items of proof as cited in the self-declaration must be promptly submitted when

the Contracting Authority requests them. Only the documents listed under Tab

C in Annex 2.1 have to be submitted along with the request to participate.

Failure to truthfully complete the (Uniform or Supplemental) self-declaration

may result in exclusion of the Candidate from (further) participation in the

Tender Procedure.

Candidates, Significant Subcontractors or Shareholders should submit a

Certificate of Good Conduct (CGC) with the Final Tender. A VOG must relate to

the current situation of the Candidate, Significant Subcontractor or

Shareholder. A CGC must not in any case be submitted earlier than 6 months

January 2012 27

before the date of tender referred to in paragraph 7.5 of these Tendering

Instructions. The original copy of the VOG or the decision of refusal must be

provided, or else a copy certified by the Netherlands “Centraal Orgaan Omtrent

het Gedrag” (COVOG, Central Office for Certificates of Good Conduct). If such a

declaration comparable to the CGC is not issued in the country of origin, it shall

suffice to submit a statement under oath or a solemn declaration made before

an authorised legal or administrative body, a civil notary or a qualified

professional organization in the country of origin.

3.11.4 BIBOB Advisory Bureau

Should the Contracting Authority have reason to believe that a Candidate,

Significant Subcontractor, or Shareholder is subject to the circumstances cited

in Article 45, paragraphs 1 and 3 of the Decree on Procurement Rules for

Government Tenders (BAO), but should sufficient information for the exclusion

from participation or further involvement not be available, then the Contracting

Authority may seek the advice of the BIBOB Bureau (see Article 8 of the Public

Administration Probity in Decision-Making Act (BIBOB)). The Candidate,

Significant Subcontractor, or Shareholder concerning whom advice is solicited

shall be informed of the contents of said advice by the Contracting Authority.

3.11.5 Exclusion

Throughout the invitation to tender and award of contract, a Candidate may be

requested to demonstrate that the grounds for exclusion referred to in

paragraphs 3.11.1 and 3.11.2 do not apply to it, failing which the candidate

may be excluded from (further) participation in the tender and award. If, during

the tendering procedure, grounds for exclusion under paragraphs 3.11.1 and

3.11.2 become applicable with regard to a Candidate, this Candidate must

immediately notify the Contracting Authority of this fact in writing.

Candidates who, in the view of the Contracting Authority, act in breach of the

terms and requirements stipulated in the Tender Documents can be excluded

from (further) participation in the invitation to tender.

If, at any time, it becomes evident that a Candidate has provided incorrect

information, the Candidate may be excluded from (further) participation in the

invitation to tender.

Should the Contracting Authority proceed with the exclusion of a Significant

Subcontractor or Shareholder involved in this Tender Procedure, then the

respective Candidate shall have the opportunity of submitting a change

proposal to the Contracting Authority within [15] calendar days in order to

replace the Significant Subcontractor or Shareholder in question.

Candidates that are excluded on the basis of the provisions in this paragraph

shall not receive any compensation.

3.12 Financial and economic standing

January 2012 28

3.12.1 Financial and economic standing requirement

Candidates must show that the Shareholders are willing and able to provide the

Candidate with a minimum amount of EUR [●] to fund the Project.

3.12.2 Information to be submitted

The Candidate must for the purpose of proving that it meets the financial and

economic standing requirement submit a statement in full conformity with

Schedule 2.4, signed by an authorised representative of a financial institution

subject to the supervision of its county of origin. In case of application as joint

parties acting on behalf of an SPV in the process of incorporation, multiple

declarations may be submitted in the name of the SPV in the process of

incorporation, if the sum total of declarations together meet the requirement. If

multiple declarations are submitted, the [name of the Candidate] in the second

paragraph of Schedule 2.4 must be read as [name of legal person(s)] and only

the amount may be additionally adjusted.

This financial institution(s) must possess a Long-Term Issue Credit Rating

issued by Standard & Poor's of at least [rating requirement] or by Moody's of

least [rating requirement] or by Fitch of at least [rating requirement], or a

comparable credit rating issued by a similar internationally-recognised

independent rating agency.

This declaration need only pertain to the Candidate itself and not to other

parties whose experience the Candidate wishes to invoke for purposes of

selection.

The Candidate is to show that it can indeed avail itself of the following

experience in carrying out the Project:

The Candidate must in the preceding five years (counted as of the deadline

date for submitting a request to participate, see paragraph 3.3) have carried

out the project management for at least two infrastructure projects.

Each of these projects must meet the following requirements:

a. integrated execution of design and construction work carried out under

certified quality assurance (based on Norm ISO-9001 or equivalent);

b. the total value of the design and construction work indicated in i above

shall be at least EUR [•] (in real euros, excluding VAT);

c. at the time of submitting the request to participate, the construction

work must be 25 % completed in the judgement of the respective

principal.

In addition to groundwork, road building and hydraulic engineering projects

concerning (transportation) infrastructure, projects involving civil and utility

3.13 Technical and organisational ability

3.13.1. Project management experience requirement

January 2012 29

construction, water purification, water production, or water distribution are also

considered infrastructure projects in the meaning of the present suitability

requirement.

Project management in the meaning of the present suitability requirement is

understood to be the assumption of responsibility at the level where the design

and construction work was integrated or which required the involvement in an

executive capacity with regard to the following tasks:

i. the day-to-day execution of activities;

ii. risk management;

iii. quality management;

iv. financial management;

v. scheduling;

vi. implementation of modifications.

3.13.2 Project management experience requirement

The Candidate is to show that it can indeed avail itself of the following

experience in carrying out the Project:

The Candidate must have been involved to a significant extent in the signing of

financial agreements between a project company and providers of external

capital for purposes of financing at least one project having a contract value of

at least EUR [•] to be paid by the principal (in real Euros, VAT not included),

where the facilities made available to the project company must have

amounted to at least [percentage]% of the contract value cited in this context.

If applicable, reference projects presented in the context of 3.13.1 may also be

presented.

The requisite experience may have been acquired on the part of the project

company or on the part of the providers of external capital, also as financial

advisers.

3.13.3 Information to be submitted

The Candidate must show that it meets the requirements cited in paragraphs

3.13.1 and 3.13.2 with regard to experience in the areas of project

management and project financing by means of the model statement enclosed

as Schedule 2.5. A separate statement is to be submitted for each reference

project.

The Contracting Authority reserves the right to verify the reliability of

references presented. The Candidate is obliged to cooperate in this context.

3.14 Verification by the Contracting Authority

3.15 Evaluation of request to participate, Invitation to Dialogue

January 2012 30

Option 1: If all Candidates that meet requirements are admitted to the Dialogue The Contracting Authority will invite Candidates to participate in the Dialogue according to the absence of any grounds for their exclusion under paragraph 3.11 and on condition that they meet the suitability requirements as specified in paragraphs 3.12 and 3.13. Candidates in respect of whom there are grounds for exclusion as referred to in paragraph 3.11 or who do not meet the suitability requirements as referred to in paragraphs 3.12 and 3.13 shall not be invited to participate in the Dialogue. paragraph 2.3 of these Tendering Instructions applies to Candidates not invited to the Dialogue.

Option 2: If further selection occurs and Dialogue begins with X parties Candidates in respect of whom there are grounds for exclusion as referred to in paragraph 3.11 or who do not meet the suitability requirements as referred to in paragraphs 3.12 and 3.13 shall not be invited to participate in the Dialogue. The Contracting Authority will invite Candidates to participate in the Dialogue according to the absence of any grounds for their exclusion under paragraph 3.11 and on condition that they meet the suitability requirements as specified in paragraphs 3.12 and 3.13. However, should more than [number] suitable Candidates come into consideration for an invitation to take part in the Dialogue then further selection shall be carried out in accordance with paragraph 3.16 to arrive at [number] Candidates to be invited to take part in the Dialogue. Paragraph 2.3 of these Tendering Instructions applies to Candidates not invited to the Dialogue.

[to be further specified for each project]

4 First Phase of Dialogue

The Dialogue starts with the First Phase of Dialogue. In this phase, candidates

are informed (in outline) about the Tender Documents, including in particular

the draft DBFM(O) Agreement and associated Schedules.

Variant 1:

(applies if a short list has to be drawn up based on the Outline Proposal or

Shortlisting Output)

In this phase, the selected Candidates must also:

Option 1: Draw up an Outline Proposal

Option 2: Submit Shortlisting Output for the selection mechanism

[to be further specified for each project],

3.16 Further selection procedure

4.1 Objective

January 2012 31

with an included proposal for a number of sections of the project.

The [Outline Proposals] / [Shortlisting Output] [to be further specified for each

project] submitted by Candidates shall be assessed in terms of validity and

evaluated in accordance with paragraph 4.6.

By means of an evaluation of the [Outline Proposals] / [Shortlisting Output] [to

be further specified for each project] based on the qualitative EMAS criteria, the

number of Candidates that participate in the tender shall be reduced to three.

The three Candidates whose [Outline Proposals] / [Shortlisting Output] [to be

further specified for each project] obtain the highest quality scores shall be

invited for the Second Phase of Dialogue.

The following qualitative EMAs criteria must be further specified in the [Outline

Proposals] / [Shortlisting Output] [to be further specified for each project]:

Section 1: [indication of EMAS criterion]

[brief description]


[brief description]


[brief description]

[to be completed for each project]1

The sections are explained in Schedule 5.

Variant 2:

(If the Dialogue begins with three parties and a short list does not have to be drawn up)

In the First Phase of Dialogue, consultations shall take place between the Contracting

Authority and the Candidates in order to optimise the Tender Documents and to

determine the outline solutions that best satisfy the Contracting Authority’s needs. The

intention is that the most important principles of the DBFM Agreement shall be set down

at the end of this phase so that a stable basis is created for Candidates to make

proposals in the following phase (in the form of Dialogue Output) pertaining to critical

EMAS criteria. The submission of Dialogue Output pertaining to critical EMAS critiera can

then occur in the Second Phase of Dialogue.

[If variant 2 is adopted, the Dialogue may only consist of two phases.]

[to be further elaborated for each project]

1 The policy is to use at most three EMAS criteria.

4.2 Starting conference and discussions with the Contracting Authority

January 2012 32

The First Phase of Dialogue begins with a general informative conference, to

which all Candidates invited to the First Phase of Dialogue are invited. In the

course of this collective meeting, the Contracting Authority shall provide

information about the structure and procedure of the First Phase of Dialogue.

This shall also provide Candidates an opportunity to ask questions.

This meeting will be held at [time] on [date] at [address].

In the First Phase of Dialogue, the Candidates are given [number] opportunities

to confer bilaterally with the Contracting Authority Discussion during the

meeting with the Contracting Authority may relate to the principles of the

DBFM(O) Agreement and the admissibility of any proposals by Candidates

within the framework of this agreement and the Tender Documents.

Option



The [Outline Proposal] / [Shortlisting Output] [to be further specified for each

project] to be submitted by the Candidates may also be discussed.

[along with the provisionally Listed Risks].

Requests for clarification can be discussed in meetings with the Contracting

Authority. Only requests for clarification received by the Contracting Authority

no later than [time] on the [...] day prior to the meetings to be held the

following week shall be able to be discussed in the meetings.

Insertion if variant 1 is implemented

(applies if a short list is drawn up based on the Outline Proposal or Shortlisting

Output)

The elaboration of the [Outline Proposal] / [Shortlisting Output] [to be further

specified for each project] has significance for the success of the Tendering

Procedure. Since a short list is drawn up based on this [Outline Proposal] /

[Shortlisting Output], Candidates must elaborate on this [Outline Proposal] /

[Shortlisting Output] in their further proposals and Final Submission. The

Contracting Authority may declare applications to be invalid if their Final

Submissions do not follow from the [Outline Proposal] / [Shortlisting Output].

Option: As an alternative and/or supplement to the requirement that the

[Outline Proposal] / [Shortlisting Output] must be further elaborated in

subsequent submissions, the essential elements of said [Outline Proposal] /

[Shortlisting Output] may, as follow-up to the Dialogue, be added to the

schedule of requirements for the Candidate in question.




4.3 Elaborating the Outline Proposal / Shortlisting Output*

4.4 Requirements for Outline Proposal / Shortlisting Output*

January 2012 33


project]

must be composed of the following sections:

• A summary

• Elaboration of EMAS criterion 1



• [to be completed]

The size of the [Outline Proposal] / [Selection Proposal] [to be further specified

for each project] may be no more than [number] pages, font [●], line spacing

[●], margin [●], of which maximum [number] pages are used on the

elaboration of EMAS criterion 1 and maximum [number] on the elaboration of

EMAS criterion 2 [etc.].


project] must comply with the Tender Documents.

The Contracting Authority may declare an [Outline Proposal] / [Shortlisting

Output] [to be further specified for each project] that does not meet the above

requirements invalid and exclude the Candidate from (further) participation in

the Tender. Should the Contracting Authority make a decision to that effect

then paragraph 2.3 of these Tendering Instructions shall be applicable.





project] must be submitted using the format of the submission form covered in

its entirety as Schedule 4.


project] must consist of [number] files, type [●]

The Candidates must submit the submission form and their [Outline Proposal] /

[Shortlisting Output] [to be further specified for each project] in both a

hardcopy version and digitally on CD-ROM between [time] and [time] on

[date] at:

[address]

in an envelope marked with the statement: "Confidential" and

[Outline Proposal] / [Shortlisting Output] [to be further specified for each

project]

4.5 Submission of the [Outline Proposal] / [Shortlisting Output] [to be further specified for each project]

January 2012 34

Tendering Procedure [Project name]"

The hardcopy version of the Outline Proposal or Shortlisting Output [to be

further specifed for each project] must be submitted [number]-fold.

An [Outline Proposal] [Shortlisting Output] [to be further specified for each

project] not received in good time shall be declared invalid. Paragraph 2.3 is

applicable to the any such decision by the Contracting Authority.


(applies if short has to be drawn up based on the Outline Proposal or


4.6.1 Means of evaluation

The proposals for the sections in the [Outline Proposals] / [Shortlisting Output]

[to be further specified for each project] are assessed on the basis of the EMAS

criteria [Contracting Authority / advisory committee(s)] according the

provisions in Schedule 5.

[4.6.2 Advisory committee[s]]

In evaluating the [Outline Proposals] [Shortlisting Output] [to be further

specified for each project], the Contracting Authority shall be assisted by one or

more advisory committees. The members of these advisory committees are:

[List of names and positions of advisory committee members]

During the First Phase of Dialogue, Candidates may submit requests for

clarification from [date] to [date]. The procedure for submitting and

completing requests for clarification is described in Paragraph 2.10 of these





The Contracting Authority shall invite the [number] Candidates with the highest

overall scores for their [Outline Proposals] / [Shortlisting Output] [to be further

specified for each project] to participate in the Second Phase of Dialogue.

4.6 Evaluation [Outline Proposal] / [Shortlisting Output] [to be further specified for each project]

4.7 Clarification

4.8 Invitation to Second Phase of Dialogue

January 2012 35

If two or more Candidates finish with identical scores in [max. cardinal number]

place, the decision on which of them will be invited to the Second Phase of

Dialogue will occur by drawing lots under the supervision of a civil notary.

Paragraph 2.3 of these Tendering Instructions applies to Candidates not invited

to the Second Phase of Dialogue.




The Contracting Authority shall pay each Candidate that has submitted a valid

[Outline Proposal] / [Shortlisting Output] [to be further specified for each

project], but that is not invited to the Consultation Phase, a compensation of

EUR [•], excluding VAT for (preliminary) costs incurred by the Candidate. The

incurred (preliminary) costs are paid if the decision not to invite Candidates for

the Second Phase of Dialogue has become final and the Candidate subsequently

submits an invoice for reimbursement of (preliminary) costs. The payment

period for the invoice is thirty days.

5 Second Phase of Dialogue

The objective of the Second Phase of Dialogue is to:

a. discuss the principles of the DBFM(O) Agreement for all Candidates on an equal basis and determine the [final] description of the invitation at the end of this Phase, so that these can serve as a foundation for the Third Phase of Dialogue; and

b. Option

(if Listed Risks are used)

produce a final description and evaluation of Listed Risks;

the [provisional] description of the Listed Risks and the Dialogue Output is

contained in Schedules 6 and 7.

c. To be added when variant 1 is adopted

(applicable if a short list has to be drawn up based on the Outline Proposal / Shortlisting Output) discuss the Candidates' Outline Proposals / Shortlisting Output*.

4.9 Compensation for (preliminary) costs

5.1 Objective

5.2 Conference with the Contracting Authority

January 2012 36

The Candidates shall have the opportunity to confer with the Contracting

Authority during the Second Phase of Dialogue.1

Candidates participating in the Second Phase of Dialogue with the Contracting

Authority may discuss the admissibility of solutions within the DBFM(O)

Agreement and any modification of this Agreement.





During the Second Phase of Dialogue, Candidates may submit requests for

clarification from [date] to [date].

Requests for clarification in the Second Phase of Dialogue may also contain

proposals for changes to the DBFM(O) Agreement. Adjustment proposals must

be supported by clear and concise reasoning.

The procedure for requests for clarifications, including proposals for

adjustments, is described in Paragraph 2.10 of these Tendering Instructions.

Whether a request for an adjustment is approved is at the sole discretion of the

Contracting Authority. The Contracting Authority reserves the right not to

approve Change Proposals.

6 Third Phase of Dialogue

The objective of the Third Phase of Dialogue is to: - Optional: offer the Candidates the opportunity to submit Dialogue Output and/or to

discuss previously submitted Dialogue Output with the Contracting Authority. (In case of

(complex) projects and an incompletely developed market, Dialogue Output can be

requested during the Second Phase of Dialogue to clarify EMAS criteria in order to avoid

any surprises during Final Submission. In this case, this Dialogue Output shall be

discussed in the Third Phase of Dialogue). - to establish the content of the DBFM(O) Agreement and all the associated schedules other than the elements that shall be established at the time of or after the Final Submission.

1 Scheduled dates and times of meetings shall be included in the letter of

invitation for the Second Phase of Dialogue.

5.3 Clarification

6.1 Objective of the Third Phase of Dialogue

6.2 Start of the Third Phase of Dialogue

January 2012 37

The Third Phase of Dialogue begins on the date specified in the Invitation to Participate in the Third Phase of Dialogue. The DBFM(O) Agreement that has been adjusted based on the results of the Second Phase of Dialogue shall be made available to the Candidates at the start of the Third Phase of Dialogue.

The Candidates shall have the opportunity to confer with the Contracting

Authority during the Third Phase of Dialogue.1

[to be further elaborated for each project]





During the Third Phase of Dialogue, Candidates may submit requests for

clarification from [date] to [date]. The procedure for submitting and

completing requests for clarifications is described in Paragraph 2.10 of these


Should the Project be designated for financing by the European Investment Bank, then the Contracting Authority shall, if desired, enable the Candidate to confer with the European Investment Bank during the Dialogue for the purpose of preparing the Final Submission.

The Contracting Authority shall finalise the results of the Dialogue in a written Dialogue Report. The Dialogue Report shall at least contain the adopted DBFM(O) Agreement.

Option

(if Listed Risks are used) and the fictitious reduction for the Listed Risks to be assumed by the Contractor.

The Candidate’s Final Submission must be based on the Dialogue Report.

1 Scheduled dates and times of meetings shall be included in the letter of

invitation for the Third Phase of Dialogue.

6.3 Conference with the Contracting Authority

6.4 Clarification

6.5 European Investment Bank

6.6 Finalising Dialogue Report – Invitation to Final Submission

January 2012 38

Upon conclusion of the Dialogue, the Contracting Authority shall invite the designated Candidates to submit their Final Submission.

Option

6.7.1 Approach to structure and risk allocation

During the Third Phase of Dialogue, the Contracting Authority shall discuss with the Candidates how certain risks (i.e. Listed Risks) may be allocated under the DBFM(O) Agreement between the Contracting Authority and Contractor and the impact that a specific risk allocation shall have on the Ceiling Price. These Listed Risks are not as yet covered in the DBFM(O) Agreement but are, for the time being, indicated in Schedule 6 (Listed Risks). Draft descriptions of the Listed Risks are included in the Tendering Instructions. During the Second Phase of Dialogue, Candidates may make proposals regarding the description of the risks and the addition of risks to the list. Candidates shall be provided with the final written description of the Listed Risks at the end of the Second Phase of Dialogue. In the DBFM(O) Agreement system, a risk may be assumed by: a. the Contractor (Contractor Risk; not dealt with separately in the

DBFM(O) Agreement); b. the Contracting Authority (Compensation Event, see Article [*] and

Schedule [*] Part [*] to the DBFM(O) Agreement); or c. the risk is allocated: as (i) a Delay Event or a Delayed Completion Event

(see Article 9.2 and 9.5, as well as Schedule 3, paragraphs 1 and 4 of the DBFM(O) Agreement), or (ii) a Force Majeure Event (see Article 9.4 and Schedule 3 Part 3 to the DBFM(O) Agreement).

Force Majeure Events are identified by the Contracting Authority and shall be limitatively covered in the DBFM(O) Agreement. The latter do not form part of the risk allocation process of Dialogue.

6.7.2 Establishment of risk allocation

See explanation of option 2 (Allocation of Listed Risks) in the Reading Guide As stated in Paragraph 2.7 of these Tendering Instructions, the Ceiling Price before distribution of Listed Risks is based on the starting point that all Listed Risks are a Compensation Event. The Tenderer can opt for another allocation of the Listed Risks. Two parameters are of importance when opting for another allocation, namely: 1. the value of the Listed Risks assumed by the Contractor, expressed as a

fictitious reduction of the tender price from the value stated in the Final Submission;

2. the adjustment of the Ceiling Price as a result of an allocation of the risks other than the allocation based on the above principle.

6.7 Listed Risks

January 2012 39

The Contracting Authority's valuation of the Listed Risks borne by the Contractor (fictitious reduction of the Tender price) expresses the manner in which a chosen allocation of Listed Risks is appraised for determining the Most Economically Advantageous Submission. A risk allocation in which the Tenderer bears many Listed Risks shall result in a significant fictitious reduction being applied to the tender price. A risk distribution in which many of the Listed Risks are borne by the Contracting Authority shall result in a slight fictitious reduction being applied to the tender price. When determining the fictitious reduction, the Contracting Authority may also take social aspects into consideration alongside financial aspects. A risk allocation in which the Candidate bears the risk of one or several Listed Risks either in whole or in part may result in a higher Ceiling Price for that Tenderer.

Example of distribution of Listed Risk with corresponding increment and Ceiling

price adjustment The Contracting Authority shall notify Candidates of the definitive fictitious reductions and adjustments to the Ceiling Price at the beginning of the [Second] [Third] Phase of Dialogue [to be further specified for each project]. The Contracting Authority uses the same fictitious reduction and adjustments to the Ceiling Price per Listed Risk with regard to all Candidates. The Candidate then decides how he wishes to classify each Listed Risk in one of the following three categories: a. a Compensation Event (starting point), or b. a Delay Event and a Delayed Completion Event, or c. Contractor Risk. A Candidate may not classify a Listed Risk in more than one of the above categories. The Contracting Authority may decide to reduce the number of categories to two for specific Listed Risks.

Distribution Listed Risk [Listed Risk name]

Compensation

Event (starting point)

Delay Event Contractor Risk

Fictitious

reduction of Tender Price for determining EMAS (value of the Listed Risks assumed by the Contractor)

0 minus 30 minus 50

Ceiling Price Adjustment compared to the actual Tender Price

0 plus 20 (raised Ceiling Price)

plus 40 (raised Ceiling Price)

January 2012 40

7 Final Submission

The objective of this phase is to designate the Preferred Tenderer.

The Final Submission must consist of the following parts:

1. the qualitative tender of the Tenderer that must be evaluated based on the EMAS criteria;

2. a statement of the Gross Availability Payment, price level as of 1 January [year], excluding VAT in accordance with the Reference Rates that are adopted by the Contracting Authority [or, to the extent applicable, the EIB Reference Rates indicated to the Candidates by the EIB];

3. a statement of the Scheduled Availability Date and Scheduled

Completion Date in accordance with the qualitative offer under 1 and the Project Planning;

4. [the Financing Plan in accordance with the requirements laid down in

Schedule 9.7];

5. the Original Financial Model in accordance with the requirements laid down in Schedule 9.7 and Indexation Formula in accordance with the Indexation Formula model (Schedule 11);

6. [a document describing the changes in the Original Financial Model in

respect of the Format of Original Financial Model Dialogue Output;]

7. a Support Letter from each Shareholder (laid out in accordance with the entire format enclosed in Schedule 9.2);

8. a Support Letter from the financial advisor (laid out in accordance with

the entire format enclosed in Schedule 9.3);

9. a Support Letter from the Lead Arranger (laid out in accordance with the entire format enclosed in Schedule 9.4);

10. as far as applicable, a letter of support from the European Investment

Bank at the time of Final Submission (Schedule 9.5);

11. a Financial Close Guarantee laid out in accordance with the entire format enclosed in Schedule 9.6.

12. Model K statement(s) from the director(s) of the Tenderer (laid out in

accordance with the entire format enclosed in Schedule 10).

7.1 Objective

7.2 Contents of Final Submission

January 2012 41

13. a “Verklaring Omtrent het Gedrag” (VOG, Certificate of good conduct) pertaining to the actual situation of the Tenderer, Subcontractor or Shareholder. A VOG should never have been issued by the Dutch “Centraal Orgaan Verklaring Omtrent het Gedrag” (COVOG, Central Office for Certificates of good conduct) earlier than 6 months before the date of the call for tender1.

Option 14. a statement of the Listed Risks fully or partly borne by the Tenderer.

7.3.1 Requirements for Final Submission

The Final Submission must meet the following requirements: a. the Final Submission must be based on the Dialogue Report, which is

part of the DBFM(O) Agreement along with the then completed schedules;

b. the Final Submission must be organised in full compliance with the

format outlined in Schedule 9.1;

d. the Final Submission must meet the conditions set forth in these

Tendering Instructions, including the conditions of paragraphs 7.4 and 7.5;

b. the present value of the Final Submission as defined in paragraph 7.6

must be lower than the Ceiling Price for the Candidate;

7.3.2 Requirements for subcontractors (other than Significant

Subcontractors) at Final Submission

If, prior to submission of the Tender, a Tenderer enters into an agreement with

a subcontractor (other than a Significant Subcontractor), the Tenderer must, at

the time of Final Submission, submit a "Uniform Self-Declaration for Tenders"

completed by the subcontractor as well as section 1 of the Supplemental Self-

Declaration for Tenders (as prescribed in Article 3.11.2), providing the value of

the part of the project subcontracted under the agreement is larger than

€ 1,000,000 (one million euros).

Paragraphs 3.11.1 through 3.11.4 shall apply mutatis mutandis to the above-

mentioned Subcontractors, which are not Significant Subcontractors.

1 A VOG may in no case have been issued by the Dutch “Centraal Orgaan Verklaring Omtrent het Gedrag” (COVOG, Central Office for Certificates of good conduct) more than 6 months prior the date of Final Submission. For more information regarding the VOG and applications for a VOG, please refer to: www.justitie.nl/onderwerpen/opsporing_en_handhaving/verklaring_omtrent_het_gedrag (English: http://english.justitie.nl/themes/cgc/) Candidates must take into account that the application for a VOG might require a processing time of approximately 8 weeks. The aforementioned applies to the Candidate, Significant Subcontractor and Shareholder, as well as to the Subcontractor in the sense of Paragraph 7.3.2.

http://www.justitie.nl/onderwerpen/opsporing_en_handhaving/verklaring_omtrent_het_gedrag

http://english.justitie.nl/themes/cgc/

January 2012 42

The interest rate risk concerning the period between Final Submission and the date on which the Financial Close is to take place is assumed by the Contracting Authority under the permitted conditions. The Tenderer must based the Gross Availability Payment included in its Final Submission on the interest rates to be provided by the Contracting Authority [here follows an indication of the base rates to be designated by the Contracting Authority]. On the date on which Financial Close occurs, the interest rates indicated by the Contracting Authority will only be updated to establish the Gross Availability Payment. Updating these interest rates and adjustment of the Gross Availability Payment at Financial Close will occur according to the relevant provisions in the DBFM(O) Agreement.

In addition, the Contracting Authority shall bear the risk of changes to the EIB

Reference Rate between the Final Submission and the Financial Close.

The Tenderers must submit the following sections of their qualitative tender:

a) (quality criterion 1)

b) (quality criterion 2)

c) (quality criterion 3)


both in a hardcopy version and digitally on CD-ROM no later than [time] on

[date], and

the other parts in a hardcopy version and digitally on CD-ROM no later than

[time] on [date].

to:

[address]

in an envelope marked with the statement

"CONFIDENTIAL, Final Submission for Tender Procedure [Project Name]"

The hardcopy version of the Final Submission must be submitted in [number]-

fold.

A Final Submission subject to one or more conditions shall be declared invalid.

A Final Submission not received in good time shall be declared invalid.

Paragraph 2.3 is applicable to the any such decision by the Contracting

Authority.

7.4 Interest rate risk

7.5 Tendering the Final Submission

January 2012 43

The Contracting Authority shall determine the present value of the Final Submission as follows: 1) The Contracting Authority shall define the offered Gross Availability

Payment at the price level as at 1 January [year] in a series of figures that can be expected by the Tenderer and which is based on the Commencement Date, Scheduled Interim Availability Date and Scheduled Availability Date that the Candidate has specified in the Project Planning Dialogue Output, where the Gross Availability Payment relating to any quarter falls due at the end of that quarter.

2) In the series of figures resulting from Step 1), the Contracting Authority incorporates the indexation on the basis of the Indexation Formula submitted by the Tenderer. The Indexation Formula offered by the Tenderer forms part of the Final Submission. The format of the Indexation Formula is covered in Schedule [*]. For each index applied in this formula, the Contracting Authority uses a reference value for n, as covered in the appendix to Schedule [*].

3) The Contracting Authority shall add to the series of figures resulting from step 2) the Lump-Sum Payment based on the Scheduled Completion Date offered by the respective Tenderer in its Basic Project Planning

4) The Contracting Authority converts the series of Gross Availability Payment figures resulting from Step 3) and the Lump-Sum Payment into present values after 1 January [year] using a nominal discount rate of [•] % per annum.

The calculation of the present value of the Final Submission is formulated in detail in the “computational model for present value and neutralised present value for the Final Submission Phase”. The Contracting Authority has made this computational model available to the Candidates in the Data Room.

7.7.1 Validity

The Contracting Authority shall first of all verify that the Final Submissions are valid. Final Submissions that fail to meet the requirements cited in Paragraphs 7.2 and 7.3 shall be declared null. Paragraph 2.3 is applicable to the any such decision by the Contracting Authority.

7.7.2 Award criterion

The contract is awarded based on the criterion of the most economically most advantageous submission EMAS). The most economically advantageous submission is the Final Submission for the lowest amount to be determined as follows. The Contracting Authority shall determine the amount of a valid Final Submission by taking into consideration:

7.6 Present value of Final Submission

7.7 Assessment of Final Submission

January 2012 44

a) the neutralised present value of the Final Submission; b) the fictitious reduction and/or the fictitious supplement in relation to the

qualitative evaluation of the tender on the basis of the EMAS criteria;

Option (if Listed Risks are used) c) the fictitious reduction for the Listed Risks entirely or partially assumed

by the Contractor in accordance with the table below;

For the purposes of clarity the Contracting Authority draws attention to the fact

that although the present value of the Final Submission (defined in paragraph

7.6) must remain below the Ceiling Price applicable to the Tenderer, the

neutralised present value of the Final Submission together with the fictitious

correction based on the EMAS criteria may exceed the prevailing Ceiling Price. Ad (a) The neutralised present value of the Final

Submission The Contracting Authority shall neutralise in the present value of the Final Submission, as defined in paragraph 7.6, the impacts that would result from the fact that the Tenderers offer a different Scheduled Completion Date and a different Scheduled Availability Date. The purpose of neutralisation is to neutralise the adverse effect that these earlier dates would have on the present value of the Final Submission of the Tenderer that offers an earlier Scheduled Availability Date or Scheduled Completion Date than the other Tenderers. The Contracting Authority neutralises these effects by calculating the neutralised present value of the Final Submission as follows: a1) The Contracting Authority determines the series of payments to be expected for the Tenderer concerned, assuming the Commencement Date [fill in the established Commencement Date], the Gross Availability Payment offered by the Tenderer in question and the Schedule Availability Date. This series of payments is denominated at the price level as at 1 January [year]. In this series of payments, the Contracting Authority processes the indexing based on the indexing formula that the Tenderer proposes. The Contracting Authority calculated the amount of the indexes to be included in this formula by taking the arithmetic mean of these indexes over the period from [month, year] through [month, year]. a2) The Contracting Authority plots the Gross Availability Payment expressed in terms of the price level as at 1 January [year] as a series of payments to be expected by the Tenderer, starting on the Scheduled Availability Date. For the neutralised present value, the Contracting Authority then shifts the amounts from this series of payments expressed in terms of the price level as at 1 January [year] to the period starting on the Schedule Availability Date of the Tenderer that, in relation to the other Tenderers, has offered the latest Schedule Availability Date and terminates [number] year(s) after this date. In this shifted series of payments, the Contracting Authority then incorporates the indexing based on the indexing formula that the Tenderer proposes. The Contracting Authority calculated the amount of the indexes to be included in

January 2012 45

this formula by taking the arithmetic mean of these indexes over the period from [month, year] through [month, year]. a3) In the case of all Tenderers, the Contracting Authority shall add to the series of payments resulting from Step a2) the Lump-Sum Completion Payment as of the same date as the Scheduled Completion Date of the Tenderer that, in relation to the other Tenderers, has offered the latest Scheduled Availability Date. a4) The Contracting Authority converts the series of instalments of the Gross Availability Payment resulting from Step a3) and the Lump-Sum Completion Payment into present values as at 1 January [year] using the same nominal discount rate as cited in paragraph 8.6. a5) The Contracting Authority shall calculate the present value of the series Gross Availability Payments resulting from a4) and the Lump-Sum Completion Payment retroactively to the price level as at 1 January [year], making use of the Reference Index (Ri). The result of this calculation is designated by the Contracting Authority as the neutralised present value. Re (b) Fictitious correction based on EMAS score

The Contracting Authority shall take account of the fictitious reduction and/or

fictitious supplement resulting from the qualitative assessment of the

submission based on the EMAS criteria in determining the neutralised present

value of the Final Submission.

Option (if Listed Risks are used) Ad (c) Fictitious reduction in case of the assumption of

Listed Risks The Contracting Authority shall take account of the fictitious reduction resulting from the full or partial assumption of Listed Risks by the Contractor as mentioned in paragraph 6.7.2 in determining the neutralised present value of the Final Submission.

When so requested by the Contracting Authority, a Tenderer may be required to clarify aspects of its Final Submission or to confirm the commitments included in the Final Submission subject to the condition that any such clarification or amendment does not result in a material change in the substance of the Final Submission and does not result or threaten to result in competitive distortion or discrimination.

7.8 Clarification by the Tenderer

7.9 Designation of the Preferred Tenderer

January 2012 46

The Tenderer with the most economically advantageous Final Submission is the Tenderer with the lowest fictitious tender price. The fictitious tender price is calculated by correcting the neutralised present value with the score on the quality criteria and [the Listed Risks]. The Tenderer with the lowest fictitious tender price shall be designated as the Preferred Tenderer. The Contracting Authority shall inform all Tenders who have tendered a submission of its decision at the same time and accompanied by a statement of the reasons. The Contracting Authority shall then state the name of the Tenderer designated the Preferred Tenderer and to whom the Contracting Authority intends to award the contract. No rights can be acquired from this intention to award the contract. The announcement by the Contracting Authority of the intent to award the contract does not entail, as laid down in Article 6:217, first Paragraph, of the Dutch Civil Code, the acceptance of a Candidate’s tender. Paragraph 2.3 is applicable to the Contracting Authority’s decision not to designate a Tenderer as the Prefered Tenderer. The Contracting Authority reserves the right not to proceed to the award of the contract. The provisions of Paragraph 2.4 of these Tendering Instructions shall be applicable in that case. The Contracting Authority shall return the Financial Close guarantee to a (Selected) Tenderer at the first of the following times:

when the Contracting Authority’s decision to declare the Tenderer’s Final

Submission invalid becomes final;

when the Financial Close is reached with the Preferred Tenderer.

[final date of Financial Close guarantee].

Following the designation of the Preferred Tenderer, the Preferred Tenderer and Contracting Authority shall determine the content of Schedule 11 of the DBFM Agreement using the following procedure.

7.10.1 Procedure for Insurance during the Operational Phase

following designation of Preferred Tenderer

The objective of this procedure is determine which insurances shall fall within the scope of Article 14 of the DBFM Agreement (Insurances), the amount of the associated premiums and the extent of the cover.

7.10.2 Requirements imposed on the data to be submitted

The Preferred Tenderer must submit the following data to the Contracting Authority by no later than 20 Working Days before the scheduled date of Contract Close:

7.10 Insurance

January 2012 47

(a) a summary of the insurance policies that the Preferred Tenderer wishes to place under the operation of Article 14 of the DBFM(O) Agreement. This summary may include solely the following insurance policies for the Operational Phase: (i) business interruption insurance other than the loss of profits; (ii) property damage insurance; and (iii) corporate liability insurance. to the extent that the premium for the cover provided by the individual insurance policies (or by a combined insurance policy) amounts to more than EUR [●]1 per annum; and (b) for each insurance policy specified in the summary: a copy of the quotation certified by the insurance company that specifies the cover, the exclusions, the excess, the date the insurance comes into force and a statement of the insurance premium for the insurance. The insurance premium must be quoted for each type of cover (also in the event of a combined insurance policy) and must be in line with the market.

7.10.3 Response of the Contracting Authority

Within 15 Working Days following receipt of the information specified in paragraph 7.10.2, the Contracting Authority must inform the Selected Tenderer whether or not the Contracting Authority believes that the information meets the requirements specified in paragraph 7.10.2. If the Contracting Authority states that it believes that the information meets the requirements specified in paragraph 7.10.2, then this information shall be included as Schedule 11 of the DBFM Agreement. When the Contracting Authority is of the opinion that the information does not comply with the requirements referred to in subsection 7.10.2 then the Contracting Authority shall state the reasons and the Selected Tenderer shall be required to submit information that does comply with the relevant requirements as soon as possible.

The Contracting Authority shall compensate Tenderers that have provided a valid Definitive Submission but that have not been designated the Preferred Tenderer for (preliminary) costs they have incurred in the amount of EUR2,600,000. The compensation shall be paid after the Preferred Tenderer has reached Financial Close and the Tenderer has subsequently submitted an invoice for the reimbursement of (preliminary) costs. The payment period for the invoice is thirty days.

8 Definitive Award of Contract / Contract Close and Financial Close

1 The amount of the premium shall be specified during the Dialogue Phase.

7.11 Compensation for (preliminary) costs

8.1 Objective

January 2012 48

The objective of this phase is reach Contract Close and Financial Close. No modifications to the DBFM(O) Agreement are possible during this phase. This phase shall be further elaborated in the Invitation to Tender a Final Submission.

The Final Submission must be maintained for [number] weeks following the date on which the last section of the Final Submission has to be submitted in accordance with paragraph 7.5.

The Preferred Tenderer must immediately pay a fine of EUR [•] if the Final Submission is not maintained unconditionally for the period laid down in paragraph 8.2 or, in derogation of this period, another agreed period. The above is applicable mutatis mutandis to successive Preferred Tenderers.

8.2 Validity of unconditional Final Submission – period

8.3 Validity of unconditional Final Submission – penalty

January 2012 49

Schedule 1: Definitions

Contracting Authority Ministry of [name of Ministry] [Department] Tender Documents The Tendering Instructions, the Selection Instructions (if any and/or applicable), the DBFM(O) Contract, the General and Confidential Clarification, invitations to participate in another (subsequent) phase of the Tender Procedure, and all other documents supplied to Candidates by the Contracting Authority in the context of the Tender Procedure and designated as such. Tendering Instructions These tendering instructions. Shareholder A natural or legal person registered as a present or future shareholder of the Candidate. Supplemental self-declaration The supplemental self-declaration of Schedule 2.3. General clarifications Information supplied to Candidates by the Contracting Authority in accordance with paragraph 2.10 of the Tendering instructions. Significant Subcontractor A natural or legal entity whose technical competence is employed by a Candidate for purposes of fulfilling technical expertise requirements. Contract Close The moment of signing the DBFM(O) Agreement. Data Room The integrated system consisting of a connection to a server of the Contracting Authority and the operational software of said server, by means of which Candidates gain access to the digital archive containing documents and information in connection with the Tender Procedure of the Project. Data Room Regulations The regulations in which access to and use of the Data Room are set forth. DBFM(O) Agreement The (draft) Design, Build, Finance, Maintain (and Operate) Agreement for the purpose of carrying out the Project, as appended in Schedule 3, including all annexes. Final Submission The final submission tendered by the Candidates invited to do so according to Chapter 7 of the Tendering Instructions. In case of phased submission of sections of the tender, the "date of Final Submission" is the date on which the final sections of the tender is or must be submitted.

January 2012 50

Third Phase of Dialogue The phase of the Tender Procedure described in Chapter 6 of the Tendering Instructions. Dialogue The First Phase of Dialogue, Second Phase of Dialogue and Third Phase of Dialogue together. Dialogue Output

The (draft) proposals solicited by the Contracting Authority during Dialogue and

to be submitted to same by the Candidates. Dialogue Report The finalization [in main outline] of that which the Contracting Authority and the Candidates have discussed. First Phase of Dialogue The phase of the Tender Procedure described in Chapter 4 of the Tendering Instructions. EIB Reference Rate The interest rate surcharge that reflects the EIB’s cost of funding as specified in the EIB’s (indicative) term sheet. Self-Declaration The Uniform Self-Declaration for Tenders together with the Supplemental Self-Declaration, as referred to in paragraph 3.11.3. Financial Close The date on which the financial agreements are signed. Financial Close Guarantee The bank guarantee to be included with Final Submission fully arranged in accordance with the format in Schedule 9.6. Candidate An SPV or one or more natural or legal persons acting on behalf of an SPV in process of incorporation that have applied to participate in the present Tender Procedure. Preferred Tenderer The Tenderer with whom the Contracting Authority intends to sign the DBFM(O) Contract. Tenderer An SPV or one or more (legal) entities acting on behalf of an SPV in the process of incorporation by whom a Final Submission is tendered. [Listed Risks

The risks covered in Schedule 6 that are distributed between the Contracting

Authority and the Candidates according to the procedure covered in Paragraph

6.7 of the Tendering Instructions.]

January 2012 51

Ceiling Price The amount determined by the Contracting Authority indicating uppermost limit under which the actual value of a Final Submission must remain in order to be valid.]

[Option Outline Proposal

The plan referred to in Chapter 4 of the Tendering Instructions in which

Candidates provide a project vision, which can then be evaluated in terms of

the EMAS criteria.]

[Probity Officer The person appointed by the Contracting Authority who performs the tasks described in paragraph 2.13 of the Tendering Instructions.] Project All work, deliveries and services that must be carried out under the DBFM(O) Contract. Reference Rates The reference rates to be further specified by the Contracting Authority at the appropriate time. [Selection Phase

The phase of the Tender Procedure described in Chapter 3 of the Tendering

Instructions.

[Option Selection Instructions The separate instructions according to which the Contracting Authority selects the Candidates who participate in the Dialogue Process.

SPV Special Purpose Vehicle organised in the form of a private company with limited liability under Dutch law (besloten vennootschap). Second Phase of Dialogue The phase of the Tender Procedure described in Chapter 5 of the Tendering Instructions.

Option Shortlisting Output The output submitted by the Candidates in the First Phase of Dialogue and evaluated on the basis of EMAS criteria, means of which a short list is drawn up of the Candidates who may proceed to the subsequent phase of Dialogue.

Uniform Self-Declaration for Tenders The Uniform Self-Declaration for Tenders as adopted by the Minister of Economic Affairs, Agriculture and Innovation and applied by the Dutch government as from 1 October 2011. Invitation to participate in the Second Phase of Dialogue. The document in which the Contracting Authority invites the Candidates selected for that purpose to participate in the Second Phase of Dialogue.

January 2012 52

Invitation to Participate in the Third Phase of Dialogue. The document in which the Contracting Authority invites the Candidates selected for that purpose to participate in the Third Phase of Dialogue. Invitation to Tender a Final Submission The document in which the Contracting Authority invites the Candidates selected for that purpose to tender a Final Submission.

Invention A technical invention for which a patent has been applied for or a patent has been granted. Confidential clarifications Confidential information supplied to Candidates by the Contracting Authority in accordance with Paragraph 2.10 of the Tendering Instructions.

January 2012 53

Schedule 2: Models for request to participate

A. Candidate Information 1.

Name

Legal form of the company

Location of registered seat

Country of registered seat

Office address

E-mail

Fax

Telephone no.

Name of designated representative (where applicable)

B. Shareholder information (to be supplied by each Shareholder)

Name




Office address

E-mail

Fax

Telephone no.

Percentage of current or future holding in Candidate

1 In the case of an SPV, the information requested under A. must be supplied

by the SPV. In the case of an SPV in process of incorporation, all the (legal)

persons (joint parties) acting on behalf of the SPV in process of incorporation

must supply the information requested under A. and one of them shall be

designated as their representative (see Paragraph 3.6 of the Tendering

Instructions).

Schedule 2.1: Model for request to participate

January 2012 54

C. Significant Subcontractor(s) information (to be supplied by each Significant Subcontractor)

Name




Office address

E-mail

Fax

Telephone no.

D. Authorised representative information (natural person who signs the request to participate on behalf of the Candidate)1.

Name of natural person authorised as representative

Date and place of birth

Capacity

Name of legal person represented

Signed at [place] on [date] Name [Candidate2] On behalf of [name of natural person or persons cited under D.]

2 In the case of an SPV, the information requested under D. is to be

supplied by the SPV and the designated natural person (or persons) is to sign

this request to participate on behalf of the SPV.

In the case of a SPV in process of incorporation, all (legal) persons (joint

parties) acting on behalf of the SPV in process of incorporation are to supply

the information requested under D. and the natural person designated by said

legal persons (joint parties) is to sign this request to participate on their behalf. 2 In the case of an SPV, the natural person (or persons) cited under D. are to

sign this request to participate on behalf of the SPV.

In the case of an SPV in the process of incorporation, the natural persons

referred to under D. need to sign this request to participate on behalf of the

(legal) persons (joint parties) acting in the name of the SPV in the process of

incorporation.

January 2012 55

[signature of natural person or persons cited under D.]

Tab A:

A request, completely filled out and validly signed by the Candidate, to

participate in conformity with the model covered in Schedule 2.1, including:

Extracts from the register of companies for the Candidate, Significant

Subcontractors, and Shareholders. In the case of an SPV in process of

incorporation, all natural or legal persons (joint parties) applying on

behalf of the SPV in process of incorporation shall submit extracts from

the register of companies.

A copy of a valid proof of identity of the natural person or persons acting

as authorised representative(s) in signing the request to participate on

behalf of the Candidate.

Contingent (special) power of attorney granted the aforementioned

natural person for the purpose of validly signing the request to

participate. Said power of attorney is only required if the signatories’

authorisation of representation is not already fully demonstrated by the

extracts from the register of companies supplied. In such a case a copy

of a valid proof of identity of the person(s) signing the authorisation for

the power of attorney must also be submitted.

Where applicable, the secretary must be provided with proxies for the

other natural or legal persons, if there is a request involving several

entities.

Tab B: Statement of availability of Significant Subcontractors

(Paragraph 3.8)

A statement of availability, completely filled out and validly signed by each

Significant Subcontractor, in conformity with the model supplied in Schedule

2.2, with:


as authorised representative in signing the statement of availability of

the Significant Subcontractor on behalf of that Significant Subcontractor.


natural person for the purpose of validly signing the statement of

availability of the Significant Subcontractor. Said power of attorney is

only required if the signatories’ authorisation of representation is not

already fully demonstrated by the extracts from the register of

companies supplied. In such a case a copy of a valid proof of identity of

the person(s) signing the authorisation of the power(s) of attorney must

also be submitted.

Tab C: Self-declaration (Article 3.11)

Declaration consisting of the Uniform Self-Declaration for Tenders as well as

Supplemental Self-Declaration (Schedule 2.3).

The Self-Declaration must be submitted along with:

Annexes to request to participate:

January 2012 56


as authorised representative in signing the Self-Declaration on behalf of

the respective Candidate, Significant Subcontractor, Shareholder, or

subcontractor, if this copy of the valid proof of identity of the natural

person acting as signatory has not already been submitted.


natural person for the purpose of validly signing the Self-Declaration.

Said power of attorney is only required if the signatories’ authorisation

of representation is not already fully demonstrated by the extracts from

the register of companies supplied. In such a case a copy of a valid proof

of identity of the person(s) signing the authorisation of the power(s) of

attorney must also be submitted.

Certificate of Good Conduct (CGC) A CGC must relate to the current

situation of the Candidate, Significant Subcontractor or Shareholder. A

CGC must not in any case be submitted earlier than 6 months before the

date of tender referred to in paragraph 7.5 of these Tendering

Instructions. A CGC may in no case have been issued by the Dutch

“Centraal Orgaan Verklaring Omtrent het Gedrag” (COVOG, Central

Office for Certificates of Good Conduct) more than 6 months prior the

date of Final Submission. If such a declaration comparable to the CGC is

not issued in the country of origin, it shall suffice to submit a statement

under oath or a solemn declaration made before an authorised legal or

administrative body, a civil notary or a qualified professional

organization in the country of origin.

Tab D: Statement of economic and financial standing (Paragraph 3.12)

A statement of economic and financial standing, completely filled out and

validly signed by the financial institution – in the sense of paragraph 3.12 of the

Tendering Instructions – in conformity with the model supplied in Schedule

2.4, including:

Extract from the register of companies for the financial institution.


as authorised representative in signing the statement of economic and

financial standing of availability of the Significant Subcontractor on

behalf of the financial institution.


natural person for the purpose of validly signing the statement of

economic and financial standing. Said power of attorney is only required

if the signatories’ authorisation of representation is not already fully

demonstrated by the extracts from the register of companies supplied.

In such a case a copy of a valid proof of identity of the person(s) signing

the authorisation of the power(s) of attorney must also be submitted.

Tab E: Demonstration of technical and organisational ability (Paragraph

3.13)

One reference per reference project, completely filled in and validly signed by

the Candidate, in conformity with the model supplied in Schedule 2.5,

including for each reference project:

January 2012 57


as authorised representative in signing the reference on behalf of the

Candidate, should a copy of valid proof of identity of the natural person

signing not already have been submitted.


natural person for the purpose of validly signing the reference. Said

power of attorney is only required if the signatories’ authorisation of

representation is not already fully demonstrated by the extracts from

the register of companies supplied. In such a case a copy of a valid proof

of identity of the person(s) signing the authorisation of the power(s) of

attorney must also be submitted.

Significant Subcontractor information Name


Address

E-mail Fax Telephone no.

[Name of Significant Subcontractor] declares: 1. that it is familiar with the Tendering Instructions [Selection Instructions]

for this Tender Procedure, and that it is in unconditional agreement with the procedure set forth therein;

2. that all information it has supplied and shall supply to the Contracting Authority in the context of this Tender Procedure is accurate, and that it is aware that possible inaccuracies detected by the Contracting Authority may lead to the exclusion of the Candidate from further participation in this Tender Procedure.

3. that, should the Project be awarded to [name of Candidate], it will be able to avail itself of the knowledge, experience, and means available to the signatory for the purpose of carrying out the Project. In this connection it agrees that the experience of the signatory shall be designated as being the experience of the Candidate.

Signed at [place] on [date] [Significant Subcontractor],

1 To be completed by each Significant Subcontractor on whose experience the

Candidate draws.

Schedule 2.2: Model statement for availability of Significant

Subcontractor1

January 2012 58

[name of natural person authorised as representative] [position] [signature]

This model must be fully completed and signed by the Candidate, as well as by each Shareholder and each Significant Subcontractor. In the case of an SPV in process of incorporation, all natural or legal persons (joint parties) requesting participation on behalf of the SPV in process of incorporation are to submit a completed and signed Self-Declaration. The section "Questions about foreknowledge and conflictsof interest" must also be completed and signed by each subcontractor if and to the extent that such is entailed by paragraph 7.3.2. The Contracting Authority reserves the right to instigate a closer examination by the BIBOB Bureau of Candidates, Shareholders, Significant Subcontractors, or other subcontractors, to the extent that such is permissible under the limitations set forth in Directive 2004/18/EG.

Where applicable, the company shall be understood to mean the Candidate and

each Shareholder Significant Subcontractor and other subcontractor if and to

the extent that the latter is subject to paragraph 7.3.2.

____________________________________________________________

SUPPLEMENTAL SELF-DECLARATION within the context of the Tender Procedure for the [project name] Project

1. QUESTIONS REGARDING INSIDE INFORMATION AND CONFLICTS OF

INTERESTS

1.1. Prior to this Tender Procedure, has the company carried out work or services in

preparation of the Project, or is/was the company in some other way directly or

indirectly involved in the preparation of the Project?

Yes/no (please cross out the answer that does not apply) If yes, please indicate the nature of the respective work or services or the nature of the involvement.

……………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

1.2. Prior to this Tender Procedure, have people working in the company carried out

work or services towards preparing the Project, or are there people working in

Schedule 2.3: Model for Supplemental Self-Declaration (to be submitted in addition to the Uniform Self-Declaration for Tenders)

January 2012 59

the company in some other way directly or indirectly involved in the preparation

of the Project?

Yes/no (please cross out the answer that does not apply)

If yes, please provide the following information for each person: a. name and position in the company b. the nature of the respective work or services or the nature of the

involvement.

…………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

1.3. With regard to this Tender Procedure, has the company hired subcontractors

who have carried out work or services in preparation of the Project, or is/was the

company in some other way directly or indirectly involved in the preparation of

the contract?

Yes/no (please cross out the answer that does not apply) If yes, please provide the following information for each subcontractor: a. the information according to questions 1.1 (name and address), 1.3

(legal form), 1.4 (trade name) and 1.5 (CoC registration) of this Self-Declaration;

b. the nature of the respective work or services or the nature of the involvement.

…………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………………

1.4. With regard to this Tender Procedure, has the company hired advisers (both

natural and legal persons) who have carried out work or services in preparation

of the Project, or is/was the company in some other way directly or indirectly

involved in the preparation of the contract?


If yes, please provide the following information for each consultant: a. the information according to questions 1.1 (name and address), 1.3

(legal form), 1.4 (trade name) and 1.5 (CoC registration) of this Self-Declaration;

b. the nature of the respective work or services or the nature of the

involvement.

…………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

1.5. Is the company allied to one or more other companies and/or does the company

form part of a group, in the context of Articles 2: 24a, 2:24b and 2:24c of the

Netherlands Civil Code, or comparable legal forms under foreign law?

Yes / no (delete as applicable)

If yes, have one or more of the affiliated or group companies performed work or

services in preparation of the order prior to the tendering procedure or has one

January 2012 60

or more of the companies been in some other way directly or indirectly involved

(or is currently involved) in the preparation of the Project?

Yes / no (delete as applicable)

If yes, specify for each company:

a. the information according to questions 1.1 (name and address), 1.3

(legal form), 1.4 (trade name) and 1.5 (CoC registration) of this Self-

Declaration;

b. the nature of the respective work or services or the nature of the

involvement.

……………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

2. QUESTIONS REGARDING THE FORMATION OF CONSORTIUMS FOR

PLACING TENDERS OR APPLICATIONS BY MEANS OF JOINT VENTURES

*3)

*3) These questions need only be answered if submission or applications are made by means of a joint business venture (a consortium), whether the latter is an ordinary partnership or not, or as a Special Purpose Vehicle (SPV).

2.1. Please indicate which factors prevent the company from being able to place a

submission for the Project individually.

……………………………………………………………………………………………………………………………………

…………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… Please indicate why the nature and scope of the joint entrepreneurial venture (consortium) formed is necessary with regard to the nature and scope of the contract to be executed, taking the significance and capacity of each operator in

the joint venture into consideration.

…………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

2.2. Please indicate which part(s) of the Project shall be executed by the company

itself.

…………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

……………………………………………………………………………………………………………………………………

3. QUESTIONS REGARDING COMPANY REVENUE AND RELIANCE ON OTHER

NATURAL OR LEGAL PERSONS

Companies are asked to submit the requested data as at the end of the last closed financial year. The company should also indicate if there are substantial changes have occurred subsequent to the year.

3.1. Please state which was the’ company's last closed financial year (Article 2.10a of

the Dutch Civil Code) along with the company's revenue for that last financial

year.

January 2012 61

Last closed financial year: …………………………

Revenue in that accounting year: …………………………

3.2. To fulfil the requirements stipulated by the Contracting Authority with regard to

economic and financial standing, experience and technical ability does the

company rely on the technical ability, experience and/or competence of other

natural or legal persons? *4) *4) the case of a joint entrepreneurial venture (consortium) the statement given in response to this question applies to the joint venture as a whole. In relying on other natural or legal persons, information and documents must also be included with the request to participated in accordance with the requirements indicated by the Contracting Authority.

Yes / no (delete as applicable) If so, the company may, in due course and in response to a properly received request from the Contracting Authority, furnish supporting documentation demonstrating that the company can be effectively and irreversibly have access to the resources belonging to the other natural or legal persons required to execute the contract, as well as supporting documents demonstrating that the

other natural or legal persons are effectively and irrevocably assigned to the execution of the contract? Yes / no (delete as applicable) If no, please state why this is not possible.

…………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… …………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………………………………………………

4. QUESTION CONCERNING INDUSTRIAL SAFETY AND WORKING CONDITIONS *5)

*5) This question need only be answered when submitting a tender under an

open tendering procedure, a restricted procedure or a negotiated procedure

without prior notice.

The question need not be answered when applying as a candidate in a closed

Tender Procedure, a negotiated procedure with prior notice or competitive

Dialogue. The question shall then be answered in the Submission Phase.

In preparing its submission, has the company taken account of the obligations under the regulations relating to protection at work and working conditions in force at the location where the contract is performed?


DECLARATION The undersigned declares:

- that he/she is authorised to legally bind the company and this at least to the

value of the Submission;

January 2012 62

- that the questions have been answered in a complete and truthful manner, and

that the information provided in this questionnaire is true, accurate and

complete;

- that he/she shall provide, at the request of the Contracting Authority, evidence

showing that the company has operated in accordance with the Dutch Tendering

Regulations for Public Works of 2005 and/or the European Tender Directive

2004/18/EC, and that the listed grounds for exclusion do not apply;

- that he/she can, at the request of the Contracting Authority, provide information

and documents demonstrating that the company meets the minimum

requirements set by the Contracting Authority with regard to financial and

economic standing, experience and technical ability. Date : ………………………………………………………………………………………

Town/City : ……………………………………………………………………………………… Name : ………………………………………………………………………………………

Capacity : ……………………………………………………………………………………… Company : ……………………………………………………………………………………… Signature : ………………………………………………………………………………………

This declaration must be signed by an authorised representative of a financial institution governed by the regulatory supervision of its country of origin. This financial institution must possess a Long-Term Issue Credit Rating issued by Standard & Poor's of at least [rating requirement] or by Moody's of least [rating requirement] or by Fitch of at least [rating requirement], or a comparable credit rating issued by a similar internationally-recognised independent rating agency. The statement below must be issued on the financial institution’s institutional stationary. _______________________________________________________________

To Contracting Authority Ministry [name of Ministry] [Name of department] attn. [name] [address] [postcode] [location] The undersigned, [name of financial institution], with registered office at [place], declares as follows in connection with the call to tender issued by the State of the Netherlands (Ministry of [name of Ministry] [name of Department]) for the [name of Project] Project, hereinafter referred to as “the Project”. The undersigned declares on the basis of facts known at the present time to [name of financial institution], that [name of Candidate] is to be considered

Schedule 2.4: Model declaration of financial and economic standing

January 2012 63

capable of raising the amount of EUR [●] as a capital base, either available from its own funds/ share capital/ share premium, or by way of a subordinated loan. This statement does not constitute a guarantee on the part of [name of financial institution] vis-à-vis the Contracting Authority. This statement has been prepared on the basis of careful consideration on the part of [name of financial institution] of the information made available to [name of financial institution] by Candidate, in particular as regards the Project and the financial situation of [names of parties concerned at Candidate]. [Name of financial institution] is aware that this statement shall be used by the Contracting Authority to determine whether [name of Candidate] meets the minimum financial and economic requirements placed upon it. Signed at [place] on [date] [name of financial institution] [name of natural person authorised as representative] [position] [signature]

This statement must be completed and signed by the Candidate. A separate statement must be completed, signed, and submitted for each reference project. The Contracting Authority reserves the right to request further information from the contact person of the contractor as indicated on this form.

REFERENCE PROJECT

Name of reference project

Contract amount (in euros, not including VAT)

Place of execution

Time period of execution

Principal Name

Address

Name of contact person

Telephone no.

E-mail

Contractor1

Description of reference project

1 The Contractor must be (a joint party to) the Candidate or a Significant

Subcontractor.

Schedule 2.5: Model declaration of technical and organisational ability

January 2012 64

(maximum 500 words)

With this reference project Candidate proves that, for the purpose of executing the project, it can indeed avail itself of experience in the area of : Project management / project financing / Project management & Project financing1.

A. Project management

Infrastructure project

Is it a case of an infrastructure project

in the meaning of Paragraph 3.13.1 of

the Tendering Instructions?

Yes/no

Project management In the preceding five years, counted

as of the deadline date for submitting

a request to participate, has the

aforementioned contractor executed

the project management – in the

meaning of Paragraph 3.13.1 of the

Tendering Instruction - for this

project?

Yes/no

Integrated Execution Does this reference project at least

comprise an integrated execution of

design and construction work carried

out under certified quality assurance

(based on Norm ISO9001 or

equivalent)?

Yes/no

Value Is the total value of the preliminary

and construction works at least EUR

[●] excluding VAT?

Yes/no

If yes, what is the value of the

design and construction work?

Completion of construction work

Has the [●] % of the construction

work referred to in the reference

project been completed at the time of

submitting the request to participate?

Yes/no

Satisfactory execution

Has the construction work (as of the

present) been executed to the

satisfaction of the principal?

Yes/no

B Project financing

Infrastructure or analogous project

Is it a case of an infrastructure project

or a analogous project in the meaning

of Paragraph 3.13.1 of the Tendering

Instructions?

Yes/no

Contract value Is the contract value at least EUR [●],

excluding VAT? Yes/no

Project financing Was the contractor involved in a

significant way in the signing of the

Yes/no

1 Cross out the inappropriate answer.

January 2012 65

financing agreement(s) for purposes

of project financing between a project

company and providers of external

capital, where the facilities made

available to the project company had

a combined value of at least [●] % of

the contract value?

Signed at [place] on [date] [Name of Candidate / Significant Subcontractor], [name of natural person authorised as representative] [position] [signature]

January 2012 66

Schedule 3: Draft DBFM(O) Agreement

January 2012 67

Schedule 4: Submission Form for First Phase of Dialogue

[name of Candidate] declares that:

1. It has read the Tendering Instructions and is in unconditional agreement

with the procedure set forth therein;

2. All information the Candidate has provided or shall provide the

Contracting Authority within the context of this Tender Procedure is

accurate.

Signed at [place] on [date]

[name of Candidate],

[name of natural person authorised as representative]

[position]

[signature]

January 2012 68

Schedule 5: Evaluation of Outline Proposal / Selection Output* [to be

further specified for each project separately]

Option

If a short list has to be drawn up in the First Phase of Dialogue

1. Introduction

The aim of the Contracting Authority is to select the Candidates most

committed to delivering a qualitatively high performance ("outstanding

performance") in the execution of the Project.

The Contracting Authority has, for this purpose, incorporated an incentive by

means of the evaluation of the Outline Proposal / Shortlisting Output* based on

EMAS criteria. The [number] Candidates that, based on their elaborations,

score the best in terms of the EMAS criteria shall be considered to be the most

capable of delivering the "outstanding performance" required by the

Contracting Authority and shall be invited to participate in the following phase

of the Tender Procedure.

2. Assessment of Outline Proposals / Shortlisting Output*

[The Contracting Authority shall be supported in the evaluation of the Outline

Plans / Shortlisting Output* based on the EMAS criteria by [an] advisory

committee(s). These advisory committees evaluate the Candidate's

elaborations.]

[Here follows further project-specific inquiry and explanation of each EMAS

criterion and a project-specific evaluation of each EMAS criterion]

For each EMAS criterion that can be reasonably evaluated, the Contracting

Authority shall provide an evaluation that expresses the quality of the

elaboration. The rating shall consist of an integer between 2 and 10 points. A

grade below 6 indicated an unsatisfactory elaboration of the EMAS criterion. A

6 indicates a satisfactory elaboration of the EMAS criterion without any added

value. A 10 represents an outstanding elaboration of the EMAS criterion with

extraordinary added value. Several Candidates may receive the same valuation

for the elaboration.

The Contracting Authority shall use the EMAS table to determine the points that

a Candidate has received for the elaboration of the item. The three Candidates

with the highest total number of points for all items added together shall

proceed to the next phase in the Dialogue, i.e. the Second Phase of Dialogue.

In the event of two or more Candidates receiving the same scores, on account

of which more than three Candidates would be designated for participation in

the Second Phase of Dialogue, the Candidate with the lowest score for the

EMAS criterion [number of critical EMAS criterion] shall not proceed to the

Second Phase of Dialogue. If the Candidates in question are awarded the same

score for the EMAS criterion [number of critical EMAS criterion], then a lottery

shall take place under the supervision of a civil-law notary to decide which

Candidate shall be invited to take part in the Second Phase of Dialogue, as

stipulated in paragraph 4.6.1.

January 2012 69

In describing the various items in these Tendering Instructions, the Candidates

shall come across references to the acronym “SMART".

The Contracting Authority understands the following under SMART:

• Specific: the degree to which the Candidate has described its proposed

solution in the respective part of the Outline Proposal or Shortlisting

Output and the degree to which it has geared the solution towards the

particularities of the Project;

• Measurable: the degree to which the Candidate can indicate how it shall

verify and/or validate that the desired aim is achieved by means of its

proposed solution in the respective part of the Outline Proposal or

Shortlisting Output;

• Acceptable: the degree to which the Candidate can demonstrate that its


Shortlisting Output is acceptable in terms of the requirements placed

(and to be placed) on it;

• Realistic: the degree to which the Candidate can demonstrate that its


Shortlisting Output is solid and attainable;

• Time-bound: the degree to which the Candidate can indicate that its


Shortlisting Output can be carried out within the necessary time

limitations.

EMAS criterion 1 (designation of EMAS criterion)

I. Introduction

II. Product solicitation

III. Means of assessment



I. Introduction





I. Introduction




January 2012 70

Option (if Listed Risks are used) If Listed Risks are not used, the following needs to be included: "Schedule 6: rescinded." (The numbering of all numbered options may not be altered but the word "rescinded" is inserted after the number. )

Schedule 6: Listed Risks

[Here follows further description of project-specific Listed Risks.]

See explanation of option 2 (Allocation of Listed Risks) in the Reading Guide

Option 1:

Option 2:

Table of draft Listed Risks

Main

category Subcategory Compensation Event (i.e.

Contracting Authority Risk); Contractor Risk

Fictitious

reduction of

tender price

Ceiling Price

Adjustment Fictitious reduction

of tender price Ceiling Price

Increase

01 (Listed) Risk

01 01 0 € 0 € [●] [●]

01 02 0 € 0 € [●] [●]

02 (Listed) Risk

02 01 0 € 0 € [●] [●]

02 02 0 € 0 € [●] [●]

02 03 0 € 0 € [●] [●]

03 (Listed) Risk

03 01 0 € 0 € [●] [●]

Main

category Subcategory Compensation Event (i.e.

Contracting Authority Risk); Delay Event

Contractor Risk

Fictitious

reduction of

tender price

Ceiling Price

Adjustment Fictitious

reduction of

tender price

Ceiling Price

Increase Fictitious

reduction of

tender price

Ceiling Price

Increase

01 (Listed) Risk

01 01 0 € 0 € [●] [●] [●] [●]

01 02 0 € 0 € [●] [●] [●] [●]

02 (Listed) Risk

02 01 0 € 0 € [●] [●] [●] [●]

02 02 0 € 0 € [●] [●] [●] [●]

02 03 0 € 0 € [●] [●] [●] [●]

03 (Listed) Risk

03 01 0 € 0 € [●] [●] [●] [●]

January 2012 71

Schedule 7: EMAS table (This schedule describes the manner that the Contracting

Authority evaluates the EMAS crtieria)

Table of EMAS criteria for project ……………………….

Criterion Subcriterion Concerns1

Contracting Authority

objectives

1 ………………….

(quality criterion)

1.1 ………………………. ……………………………

……………………………

……………………………

……………………………

……………………………

…………………………….

1.2 ………………………. ……………………………

……………………………

……………………………

……………………………

…………………………….

2 ………………….

(quality criterion)

2.1 ………………………. ……………………………

……………………………

……………………………

……………………………

…………………………….

2.2 ………………………. ……………………………

……………………………

……………………………

…………………………….

3 …………………..

(quality criterion)

3.1 ………………………. ……………………………

……………………………

……………………………

……………………………

……………………………

…………………………….

3.2 ……………………….. ……………………………

……………………………

……………………………

……………………………

……………………………

…………………………….

3.3 ……………………….. ……………………………

……………………………

……………………………

……………………………

……………………………

…………………………….

4 …………………..

(performance

criterion)

……………………………..

< in the table: space for concise explanation of an criterion / subcriterion / item /

concern in the Table of EMAS Crieria >

1 Concerns1 If desired, these may be further described. The table should

provide an overview of relevant factors

EMAS calculation sheet

Criterion Subcriterion Maximum

quality value

(€)

Evaluation

grade

Obtained

qualitiey

value

(€)

Totals

(€)

1. …………….. …….

(quality criterion)

1.1 …………………… ……….

1.2 …………………… ……….

2. ……………….……

(quality criterion) 2.1 ………………….. ……….

2.2 ………………….. ……….

3. ……………………

(quality criterion) 3.1 ………………….. ……….

3.2 ………………….. ……….

3.3 ………………….. ……….

Quality vale of quality criterion 1 through 3

Quality value of performance criterion 4 ……………………………..: X performance units @ € y /

performance unit

[Option: Fictitious reduction in connectionwith the Listed Risks assumed by the Contractor]

Total quality value

Tender price

Fictitious tender price (Tender price minus total quality value)

Marked in yellow: to be completed during the inquiry Marked in grey: to be completed after the evaluation grades are assessed

Notes on the EMAS calculation sheet

January 2012 73

A distinction is make between quality criteria and performance criteria. In case of performance criterion, the obtained quality value is immediately calculated, hence without evaluation of quality, by multiplying the performance units by the value of each performance unit. This is not possible in the case of quality criteria, and the quality value obtained in their case is indicated by means of an evaluation grade.

Maximum quality value The EMAS calculation sheet reports what the maximum obtainable quality values are. They perceptibly relate to the subcriterion level. Evaluation grade An evaluation grade is also awarded at the level to which maximum quality value discernibly relates. The range of evaluation grades runs from 10 to 2. A grade awarded by the evaluation system

corresponds to a team consensus result and not an average of individual evaluation grades. The range of grades from 10 to 2 may only be further refined by the team to half-point accuracy, therefore divisible into 10 - 9.5 - 9 - 8.5, etc. Preferably, whole numbers are to be awarded; the half points shall only be used when the evaluation teams feels that it is

absolutely necessary.

Quality value obtained The grade of 10 indicates maximum quality value. The relationship between "Evaluation grade" and "Quality value obtained" remains otherwise linear. The table below provides an overview of the evaluation grades with corresponding quality values.

Evaluation grade

Valuation % of maximum

Quality value 10 Outstanding 100

9 Excellent (great deal of added value) 75

8 Good (substantial added value) 50

7 Very satisfactory (clearly demonstrable added value)

25

6 Neutral (no added value) 0

5 Unsatisfactory - 25

4 Very unsatisfactory - 50

3 Poor - 75

2 Very poor - 100

The linear relationship: "Quality value obtained" = ("Evaluation grade" - 6)/4 * "maximum quality value" Evaluation grade under 6

Assuming: The purpose of EMAS is to direct focus onto added value. It may be assumed that Tenders focusing on this factor will, as a rule, score at least a 6. An evaluation grade under 6,

which is a tender that is qualitatively unsatisfactory on one or more (sub)criteria, does not by definition however result in rejection. This depends on the nature of the criterion. The considerations in this regard are as follows.

1. In the case of a criterion serving as a stimulus for a better performnce regarding an

explicit requirement from the tender specifications or schedule of requirements and a situation arising where this requirement is not met, the tender is then deemed to be invalid.

2. Rejection shall occur as a consequence of this. 3. Awarding an evaluation grade is then no longer applicable. Even if a criterion relates

to a set of interconnected requirements, failure to meet one of the requirements of the tender specifications does not immediately result in rejection (without an EMAS evaluation being attraibuted).

January 2012 75

4. In the case of a criterion that is unrelated to a requirement in the tender specifications

or the schedule of requirements, there may be toleratnce for an evaluation less than neutral witout rejection taking place. Suppose that, for a structure, "design" is included in the EMAS criteria, an unsatisfactory score on this criterion would not have to result in rejection. An unsatisfactory grade would certainly result in a supplement for the Tenderer concerned, so that the Tenderer's competitive position would accordingly become less favourable. A grade of unsatisfactlry is also, for example,

possible if a tendered solution is not "state of the art", and the Tenderer is submits an out-of-date product or obsolete work procedure while better alternatives are available and other Tenderers have, in fact, submitted "state of the art" tenders. Allocation of a negative quality value may also be justified if: - a work procedure suggested by the Tenderer entails a new or larger risk; failure to sufficiently or in any way respond to what was requested in connection with

EMAS evaluation.

Wiht regard to the stipulations in point 1: Any such criterion in the Table of EMAS Criteria is explicitly related by means of reference to the corresponding requirement (set of interconnected requirements) in the tender specifications or schedule of requirements. Wiht regard to the stipulations in point 2: If it is not explicitly stated that a "knock-out"

applies to a given criterion (and a low grade results in the invalidation of the tender), grades of unsatisfactory are possible. If a "knock-out" does, in fact, apply in the case of a low grade, the Contracting Authority shall explicitly indicate the relevant sub-criterion or item as well as the grade at or below which rejection shall occur (e.g. at a 4 or lower). Of course, such may apply to more than one subcriterion or item. Discussions shall be held with IMG in advance of any implementation of a "knock-out"

If a knock-out does apply, any doubtful solution by the evaluation system will resulit in an request for an explicit decision. If, for example, it is indicated in the tender or evaluation

document that a score lower than 6 shall result in a knock-out, the evaluation sisytem will, in case of a doubtful sollution, must select a grade of eitther 5 or 6 (unsatisfactory or satisfactory). The award of a 5.5 is then, of course, absolutely forebidden and will likely result in a procedure, given that no clear judgement is revealed while the Tenderer has an special need for clarity in this situation.

Schedule 8: [Rescinded]

Rijksbreed model Aanbestedingsleidraad DBFM(O) Pagina 77 van 87

2 januari 2012

Schedule 9: Models for Final Submission

[name of Candidate] hereby tenders its Final Submission for the [Project] project and declares that: 1. the Self-Declaration completed by the Tenderer, Significant

Subcontractor, or Shareholder pursuant to paragraph 3.11.3, and by the Subcontractor pursuant to paragraph 7.3.2 if applicable, with due observance of possible changes in the circumstances covered in the concerned Self-Declaration that have already been communicated in writing to the Contracting Authority, is still true, accurate, and complete at the time of the Final Submission.

2. the Final Submission is in full agreement with the Dialogue Report; 3. its Final Submission remains valid, integrally and unconditionally, until

[enter date: [number] months following the date of submission of the Final Submission];

4. the Gross Availability Payment included in its Final Submission is based

on Reference Rates made known by the Contracting Authority [and on the EIB Reference Rate issued by the EIB, if applicable;]

5. it accepts that the Gross Availability Payment included in the Final

Submission shall be adapted in accordance with the procedure specified in paragraph [*]of the Final Submission Version of the Tendering Instructions;

6. it accepts that the present value of the Final Submission is determined

by means of the computational model for present value of the Final Submission included in the Data Room, as referred to in paragraph [*] of the Dialogue and Submission version of the Tendering Instructions;

7. it accepts that the neutralised present value of the Final Submission is

determined by means of the computational model for neutralised

present value of the Final Submission included in the Data Room, as

referred to in paragraph [*] of the Final Submission version of the

Tendering Instructions; 8. it accepts that if its Final Submission to the Contracting Authority does

not remain valid in full then it shall immediately forfeit fixed compensation to the Contracting Authority amounting to EUR [*] million. This shall be the case in situations such as the failure to complete the Financial Close in time. The Candidate has provided a bank guarantee that is attached to this Final Submission under Tab C. The only instance in which this fixed compensation shall not be payable is if the non-attainment of the Financial Close is the consequence of a disruption of financial markets or a Supervening Event, as described in the Tender Documents;

Schedule 9.1: Model tendering form for Final Submission


2 januari 2012

9. the Final Submission has not been prepared under the influence of an agreement, decision or conduct that is in conflict with Dutch or European competition law.

Signed at [place] on [date]

[Tenderer’s name],


[position]

[signature]


2 januari 2012

Schedules to the Final Submission: Tab A Formal Requirements 1. Extracts from the Tenderer’s entry in the trade register. 2. Copies of the proof of identity of the person(s) signing the Final Submission. 3. Model K statement(s) in accordance with the format in Schedule 14. 4. VOG statement(s) (Certificate(s) of good conduct) in accordance with

Section 3.11.3 of these Tendering Instructions Tab B Qualitative part of the Final Submission [to be further elaborated for each project] Tab C Financial component of Final Submission The financial offer must include at least the following components (in the specified sequence and with the specified numbering): 1. Gross Availability Payment at the price level of [date], excluding VAT,

Commencement Date, Scheduled Availability Date, Scheduled Completion Date.

2. Original Financial Model in accordance with the requirements laid down in Schedule 9.7.

3. Indexation formula in accordance with the format in Schedule 11 (Indexation formula format).

4. Financing Plan in accordance with the requirements laid down in Schedule 9.7.

5. The Original Financial Model Format Change Document with regard to the Original Financial Model Format Dialogue Output.

6. Support Letters from Shareholders (in accordance with the model in Schedule 9.2 of the Final Submission version of the Tendering Instructions).

7. Support Letter from financial advisor (in accordance with the model in Schedule 9.3 of the Tendering Instructions).

8. Support Letter from Senior Debt Providers (in accordance with the model in Schedule 9.4 of the Tendering Instructions

9. Document that Candidates must submit with the Final Submission (Schedule 9.5 of the Tendering Instructions).

Tab D Financial Close Guarantee Financial Close Guarantee in accordance with the format in Schedule 9.6 of the Tendering Instructions.

Option Tab E Listed Risks

Schedule 9.2: Model for Supper Letters from Shareholders


2 januari 2012

[Name of Shareholder] participating for [percentage]% in [name of Tenderer]. [Name of Shareholder] confirms that, under the condition that is granted to [name of Candidate] , [name of Shareholder] will invest, in accordance with its participation in [name of Candidate] an amount to be contributed pro rata of participation and a maximum of € [•] in the form of equity capital in and/or subordinated loan to the Contractor. [Name of Shareholder] confirms that the Final Submission dated [date] is accompanied by an offer from senior debt providers to complete the financing of the Project. This Support Letter is issued exclusively for [name of Tenderer] and no other (legal) person is entitled to rely on this statement or to derive rights from it. This Support Letter is governed by the laws of the Nethelands. [name of Shareholder]


[position]

[signature]

[Name of financial advisor] has been appointed by [name of Tenderer] as financial advisor for the financing of the [●] Project. In the capacity as financial advisor of [name of Candidate] [name of financial advisor] declares that the Final Submission dated [date of Final Submission]

(i) is compatible with the financial estimate and the planning as intended by

[name of Candidate];

(ii) is sufficiently robust to allow [name of Candidate to fulfil all the

Candidate’s obligations arising from the DBFM Agreement under normal

conditions; and

(iii) makes clear how [name of Candidate] shall raise sufficient financing for

the project to allow [name of Candidate] to fulfil all the Candidate’s

obligations arising from the DBFM Agreement under normal

circumstances;

(iv) is accompanied by support letters from senior debt providers for a total

amount of EUR [amount].

This Support Letter is issued exclusively for [name of Candidate] and no other

(legal) person is entitled to rely on this statement or to derive rights from it.

Schedule 9.3: Model for the Support Letter from Financial Advisor


2 januari 2012

This Support Letter is governed by the laws of the Netherlands. [name of financial adviser]


[position]

[signature]

[name of senior debt provider] has been appointed by [name of Tenderer] as [arranger/underwriter] for the financing of the [name of Project] Project. Within the the framework of the Final Submission of [name of Candidate] for the [name of Project], [senior debt provider] has carried out due diligence with its fiscal advisor [name], its legal advisor [name], its technical advisor [name], its insurance advisor [name] in relation to (the stipulations in): • The Tendering documents; • The Final Submission dated [date] from [name of Candidate]. [___name of senior debt provider___] is offering a financing arrangement to [___name of Tenderer___], for an amount of [___amount___] stated in its letter dated [___date of letter___] with reference [___reference___] for [number of] weeks after [___date of Final Submission___]. The financing arrangement offered to [name of Tenderer] is unconditional with the exception of the following – exhaustively listed – conditions: • the definitive approval by the [name of authorized body of senior debt

provider] of [___name of senior debt provider___]; • completion of the financing or loan documents in the legal relationship

between [name of consortium] and [name of senior debt provider] (satisfactory loan documentation);

The financing arrangement is based on the DBFM(O) Agreement with Schedules dated [date] with reference [___reference___]. This Supporting Statement is furnished solely for [___name of Tenderer ___] and may not be relied upon by, nor may any rights be derived therefrom by, anyother (legal) person. For the avoidance of doubt: this Letter does not constitute an unconditional or irrevocable obligation or a legally binding commitment, in any manner whatsoever, to provide financing. This Support Letter is governed by the laws of the Netherlands. This Support Letter is valid for a period of [___at least equal to the [number]-week period of validity of the Final Submission___] days after the date of [___date of Final Submission___]. [name of (external) senior debt provider]

Schedule 9.4: Model for Support Letter from Senior Debt Provider


2 januari 2012


[position]

[signature]

[to be determined for each project separately]

[Name and other details of the bank or financial institution] guarantee number [guarantee number] THE UNDERSIGNED, [Name of bank or financial institution], with its registered office at [place], hereinafter called the “Bank” WHEREAS: [Name of Tenderer], having its [registered office1] in [place] and its principal place of business in ([postcode]) [place] on [address], hereinafter referred to as the "Tenderer" on [date] has been invited to submit a Final Submission by the State of the Netherlands, the Ministry of [name of Ministry] (hereinafter called the "Contracting Authority" in the framework of the Tender Procedure of the DBFM(O) Agreement [name of Project] with [reference] (hereinafter called the "DBFM(O) Agreement"; the Tenderer, pursuant to the tendering instructions [date, reference] (hereinafter referred to as the "Tendering Instructions") and the DBFM(O) Agreement is under the obligation have a bank guarantee provided in favour of the Contracting Authority as security for the Tenderer’s performance of the obligation to pay a penalty to the Contracting Authority in the event that the Tenderer fails to unconditionally maintain the Final Submission for [period of validity] and its obligation to pay compensation if it fails to achieve Financial Close no later than [date on which period of validity expirses], as described in the DBFM(O) Agreement; the undersigned is prepared to provide the relevant bank guarantee in favour of the Contracting Authority on the conditions set out below; DECLARES AS FOLLOWS: 1. In the form of an independent commitment, the Bank hereby

unconditionally and irrevocably guarantees the obligation of the Preferred Tenderer based on the Tendering Instructions to pay a fine when it fails to unconditionally maintain its Final Submission for [period of validity], as well as its obligation under the DBFM(O) Agreement to pay compensation when it does not achieve Financial Close no later than

1 Cross out if not applicable.

Schedule 9.5: Support Letter from the European Investment Bank

Schedule 9.6: Financial Close Guarantee Model


2 januari 2012

[date on which period of validity expires], this to a maximum amount of EUR [•] million. This bank guarantee is an abstract first demand guarantee. The Bank may not rely under any circumstances on the underlying legal relationship between the Contracting Authority and the Tenderer pursuant to the Tendering Instructions and/or as set out in the DBFM Agreement.

2. In view of the provisions under 1. of this bank guarantee, the Bank

undertakes with respect to the Contracting Authority to satisfy all that which the Contracting Authority declares with respect to the Bank to claim from the Preferred Tenderer arising from the aforesaid obligation to reach Financial Close, at the first written request from the Contracting Authority, without requesting any reasons or further proof and with due observance of the maximum amount referred to under 1. of this bank guarantee.

3. This bank guarantee is valid for a period of 1 weeks following the date of

[latest date of Final Submission]. 4. This bank guarantee lapses with the setting of the Execution Guarantee

as referred to in Article [article number] of the DBFM(O) Agreement. 5. This bank guarantee is governed by Netherlands law. The Court at The

Hague shall hold jurisdiction to settle any disputes that may arise in relation to this bank guarantee.

On its expiry this bank guarantee should be returned to the signatory at the following address: [address]. [name of bank or financial institution]

[name of natural person authorised as representative] [position] [signature]

[to be completed for each project separately]

Schedule 9.7: Requirements for the Financial part of the Final

Submission


2 januari 2012

Schedule 10: Model K statement

Note

At Final Submission, the Tenderer must present a statement confirming that the

Final Submission has not been prepared under the influence of an agreement,

decision, or act in conflict with the Dutch or European competition law.

This statement, organised according to the Model K included below, must be

signed by a managing director who duly represents the Tenderer in this matter

(Model K statement).

If the Tenderer is an SPV then the Tenderer must submit a statement of this

nature from a director of the SPV.

If the Tenderer is an SPV in the process of incorporation then the Tenderer

must submit a statement of this nature from a director of every (legal) person

(joint parties) acting on behalf of the SPV in the process of incorporation.

The person signing the Model K statement must be identified in the registers of

the Chamber of Commerce as a managing director. If a director is not listed in

the registers of the Chamber of Commerce but is designated as such in the

articles of association filed with the Chamber of Commerce then the Tenderer

must submit these articles of association together with the Final Submission.

If managing directors are only authorised to represent jointly, then they have

to sign the Model K statement jointly.

The Final Submission is invalid if a required Model K is missing or has not been

completed truthfully. There is no option for correction of the Model K statement

after the Final Submission.

Model K – Statement of managing director concerning lawfulness of

submission

[Project Name]

The Undersigned declares that the present Final Submission has not been

prepared under the influence of an agreement, decision, or act in conflict with

the Dutch or European competition law.

Drawn up truthfully

on [date], in [place]

by [name and initials]

as the director of [name of company],

who [name of company],

in the matter of this Final Submission.

[signature]


2 januari 2012

Schedule 11: Indexation Formula

The Indexation Formula forms part of the Final Submission. The Indexation

Formula offered by the Tenderer shall form part of the DBFM Agreement. The

Tenderer can select a maximum of [number] indices to be used in the

Indexation Formula from the exhaustive list given below. The format for the

Indexation Formula offered by the Tenderer is as follows:

[●]

The Contracting Authority accepts any Indexation Formula of which the

Contracting Authority can assume in advance that sufficient correlation exists

between the indices chosen including weighting factors and the cost component

of the work.

[The Contracting Authority does not allow an indexation formula designed to

transfer the risk of price developments reflected in the financing costs to the

Contracting Authority.]

The exhaustive list of indices in the following table states the Contracting

Authority’s reference values for the calculation of the present value [OPTIONAL

PHRASE: and the neutralised present value] of the Final Submission.

Reference value n represents the year-on-year change to the figures in index n

and is used solely to calculate the present value [OPTIONAL PHRASE: and

neutralised present value] of the Final Submission.

Table: Exhaustive list of indices for Indexation Formula

Authority index n period Reference value n (note 1*)

--------------------------------------------------------------------------

[●] [●] January [●]%

[●] [●] January [●]%

…

[●] [●] January [●]%

Note 1*: Reference value of Contracting Authority for the purpose of calculating

the present value and neutralised present value of the Final Submission.

The Tenderers must submit the Indexation Formula using the following form.

For the record, the Contracting Authority notes that the indexes formulated by

the Tenderer, including their weighting factors, are fixed and can no longer be

altered after tendering the Final Submission. The weighting factors included in

the Original Financial Model at the time of the Final Submission must agree with

the weighting factors (including the number of decimal places) entered in this

form.


2 januari 2012

MODEL FORM FOR THE FORMAT OF THE INDEXATION FORMULA

n index n publishing authority weighting factor pertaining

index n

1 … … …

2 … … …

… … … …

… … … …


2 januari 2012

Schedule 12: Separation of interest memorandum