NTA Metropolitan Mass Transit System · NTA – Metropolitan Mass Transit System Clarification Letter No. 7 Page 1 of 34 8 November 2017 #1103952 For the Design, Development, Manufacture,

NTA – Metropolitan Mass Transit System

Clarification Letter No. 7 Page 1 of 34

8 November 2017

#1103952

For the Design, Development, Manufacture, Procurement, Supply,

Installation, Testing, Commissioning, Warranty and Maintenance of the Systems of the

Red Line Project

Tender 078/2017

Clarification Letter No. 7

Where clarification responses change the Bidding documents and specifications, addendum will

be issued containing those changes. NTA's responses herein are binding as of the date of this

letter.

RFCs relating to Volume 1

Extensions of Time

RFC 491

NTA is requested to postpone the Submission Date and the last date for submitting RFCs.

NTA's response

The Submission Date is postponed to 21 December 2017. There will be no postponement

of the last date for submitting RFCs.

RFC 492

Under Section 10.1 to Vol 1, Pt 1, Bidders are required to acknowledge that the information

contained in the Bidding Documents may not be complete, accurate or correct.

Obviously, all Bidders rely on the information contained in the Bidding Documents and NTA

cannot exempt itself from responsibility for their accuracy or correctness. We request to change

this statement accordingly.

NTA's response

Please refer to Addendum 12.

Part II Thresholds

RFC 493

(Vol 1 Part II Clause 2.1(iv)(a))

NTA is kindly requested to amend the said Clause and to allow a Major Subcontractor to

demonstrate its professional experience through a Related Entity.

NTA's response

After consideration this request is rejected. However, please note that a Major Subcontractor

may demonstrate its professional experience by reliance on Wholly Owned Subsidiaries.



RFC 494

(Vol 1 Part II Clause 2.1(iv))

NTA is requested to confirm that a legal entity which the demonstrating entity owns indirectly

100% of its shares or partnership rights (i.e. are owned by another entity which all of its shares

or partnership rights are held by the demonstrating entity) is considered a Wholly Owned

Subsidiary for the Tender purposes – i.e. a demonstrating entity can demonstrate its compliance

with a Threshold Requirement through its indirectly wholly-owned granddaughter company or

partnership (please refer to Vol 1 Part II Part A Clause 2.1(iv).

NTA's response

It is clarified that the definition of a Wholly Owned Subsidiary includes a corporate entity which

100% of its holdings is held indirectly by the demonstrating entity. Please refer to Addendum

12.

RFC 495

(Vol 1 Part II Part A Clause 2.3)

The Bidder, or in the event of a Joint Venture, a Member thereof (subject to Clause 2.1(ii)), or

a Major Subcontractor, was responsible as a Main Contractor for the design and construction of

Track Work Systems in at least three (3) Rail Transit Projects each of a minimum length of six

(6) kilometers and together of a minimum cumulative length of thirty (30) kilometers.

a) at least two (2) of the demonstrated Rail Transit Projects have been in Commercial

Operational Services for at least two (2) consecutive years;

b) at least one (1) of the demonstrated Rail Transit Projects includes Depot Track and has

commenced Commercial Operational Services; and

c) at least one (1) of the demonstrated Rail Transit Projects includes at least one (1) continuous

kilometer of underground Track Work System.

We kindly ask if the requirement should be written as follows:

The Bidder, or in the event of a Joint Venture, a Member thereof (subject to Clause 2.1(ii)), or

a Major Subcontractor, was responsible as a Main Contractor or Subcontractor for the design

and construction of Track Work Systems in at least three (3) Rail Transit Projects each of a

minimum length of six (6) kilometers and together of a minimum cumulative length of thirty

(30) kilometers:

a) at least two (2) of the demonstrated Rail Transit Projects have been in Commercial

Operational Services for at least two (2) consecutive years;

b) at least one (1) of the demonstrated Rail Transit Projects includes Depot Track and has

commenced Commercial Operational Services; and

c) at least one (1) of the demonstrated Rail Transit Projects includes at least one (1) continuous

kilometer of underground Track Work System; and

D) at least one (1) of the demonstrated Rail Transit Projects includes design of the Track

Work System.

NTA's response

Please refer to sub-clause ii of the definition of "Main Contractor" which includes a sub-

contractor contracted by the main contractor.

The proposed amendments are rejected. However, please refer to Addendum 12 in relation to

an amendment to Clause 2.6.



RFC 496

(Vol 1 Part II Clause 2.2 and Clause 2.3)

(a) Please consider amending the definition of "Rail Transit Project" under Clause 2.2 of

Volume 1 - Part II - Threshold Requirements, as follows:

"Rail Transit Project" shall mean a metro or railway (including high speed), or LRT (including

tram) line with Vehicles and Track Work System, which were Completed during the period

commencing 1/1/2002 and up to the Submission Date.

The reference to all three types of rail systems, hence: LRT, Metro and heavy rails, including

highspeed, demonstrates experience over a range of systems and track including high speed slab

track which are installed to much higher standards and tolerances.

(b) Please confirm that under Clause 2.3 of Part A - Threshold Requirements, the Bidder may

present four (4) Rail Transit Projects, with at least three (3) Rail Transit Projects having each

of a minimum length of six (6) kilometers and together a minimum cumulative length of thirty

(30) kilometers, whereas the rest of the provisions of Section 2.3 of Part A shall apply mutatis

mutandis.

NTA's response

(a) After consideration this request is rejected.

(b) Each of the demonstrated projects for the Trackwork System Experience threshold

requirement under Clause 2.3 shall consist of a minimum length of 6km. The same minimum

length applies to each of the demonstrated Rail Transit Project under Volume 1, Part II Part

A Clauses 2.3 (Track Works Systems Experience) and 2.3.2 (Catenary Systems Experience).

Each of the demonstrated projects for the Integration Experience threshold requirement

under Clause 2.6 shall consist of a minimum length of 5km., in accordance with Addendum

12.

RFC 497


"The Bidder, or in the event of a Joint Venture, a Member thereof, or a Major Subcontractor,

was responsible for Integration in at least two (2) Rail Transit Projects, one of a minimum

continuous length of six (6) kilometers Track Work Systems, and one of a minimum

continuous length of five (5) kilometers Track Work Systems and together with a minimum

cumulative length of twenty (20) kilometers of Track Work Systems."

NTA is kindly noted that the requested amendment is minimal and that the overall length of the

Track Work Systems is not changed.

NTA's response

Refer to Addendum 12.

RFC 498

Regarding para 2.6 Integration Experience of PART A- THRESHOLD REQUIREMENTS we

would appreciate your approval that we present two Rail Transit Projects, together with a

minimum cumulative length of twenty kilometers.

NTA's response

After consideration this request is rejected. Refer to Addendum 12.

RFC 499




Integration Experience - meeting the RAMS

NTA is kindly requested to amend the said clause such that a Bidder shall meet the Integration

threshold requirement if only one Rail Transit Project of the two 2 Rail Transit Projects

presented by it for the purpose of demonstrating the requirement of Integration meets the

requirement that the functionality of the combined system meets the RAMS provided that all

other requirements of the Integration Requirement are met.

NTA's response

After consideration the request is rejected.

RFC 500

Regarding para 2.3 Track Work Systems Experience of PART A - THRESHOLD

REQUIREMENTS we would appreciate your approval that we present four Rail Transit

Projects, comprising of three Rail Transit Projects having each a minimum length of six

kilometers and one Project of 1.1 kilometer length. All four projects have a cumulative length

above 30 kilometers.

NTA's response

After consideration this request is rejected.

RFC 501

Contract Condition: For the purpose of compliance with the Professional Threshold

Requirements, professional experience gained by the demonstrating entity as part of a joint

venture shall be attributed to the demonstrating entity provided that, as part of such joint venture,

the demonstrating entity was the entity which actually performed all the activities required as

part of the professional experience.

Query: Professional experience (against threshold requirements) gained by the

demonstrating entity as part of a joint venture in any work shall be taken equal to quantum

(percentage) equivalant to its equity share in the JV.

NTA's response


RFC 502

(Vol 1 Part II Clause 2)

Please confirm that the 51% shares of holding threshold requirement would be met if the Lead

Member had the ability to control the JV through majority voting rights in its governance board.

In other words, not all of the alternatives of the definition of Means of Control would have to

exist in order to fulfil the requirement.

NTA's response

Please refer to Addendum 12. It is clarified that a "Lead Member" shall mean a Member

holding at least 51% of the shares or holdings and the Means of Control in the Bidder.

RFC 503

The request to demonstrate compliance with any of the Thresholds only through a Lead Member

holding at least 51% of the Share in the Bidder is problematic, as it intervenes with the relations

between the partners. We ask you to reconsider the request that the Lead Member should hold

51% of the Holdings.



NTA's response


RFC 504

(Vol 1 Part II Clause 2.1(v) and 2.8)

Clause 2.1(v) provides that professional experience gained by the demonstrating entity as part

of a joint venture shall be attributed to the demonstrating entity provided that, as part of the joint

venture, the demonstrating entity was the one which actually performed all the activities

required as part of the professional experience, while Clause 2.8 allows a demonstrating entity

to be deemed as "responsible" under the relevant Professional Threshold Requirement also if

the work was performed through a third party, provided that the demonstrating entity remained

responsible for such work directly to the owner.

NTA is kindly requested to amend clause 2.1(v) such that the requirement for actually

performing the work as part of a joint venture can also be complied with if the conditions and

requirements set out in Clause 2.8 are met. i.e. the work was performed through a third party

and the demonstrating entity remained responsible for such work directly to the owner.

NTA's response


RFC 505


NTA is kindly requested to clarify that in the event that a demonstrating entity is the

concessionaire which won the tender for a Build Transfer or Build Operate Transfer project of

designing, construction and testing of multiple systems and therefore was the responsible for

such systems integration (as such term is construed pursuant to Clause 2.8 in Vol 1 Part II Part

A), it will be deemed to fulfil the integration experience stated in Clause 2.6 in Vol 1, Part II

Part A.

NTA's response

If the "concessionaire" (or an entity in any other capacity) complies with the stipulations of

Volume 1 Part II Part A, Clause 2.8, i.e.: it either: (i) performed such Integration itself, or (ii)

performed such Integration through a third party while remaining itself responsible for such

works directly to the owner of the demonstrated project, then it may be considered as a

demonstrating entity under Clause 2.6, subject to compliance with all other components of this

Threshold Requirement.

RFC 506

(Vol 1 Part II Clause 2.1(iv) and 2.7)

NTA is kindly requested to amend the said clauses to allow a Member to rely on the professional

experience of one or more of its Related Entities for the purpose of demonstrating the Track

Works Systems Requirement provided that such Member together with its Related Entities

complies with all the cumulative requirements set forth for compliance with the Track Works

Systems Requirement.

Therefore, NTA is kindly requested to allow a Member which, in the ordinary course of its

business, engages in the performance of such projects to rely on the professional experience of

one or more of its Related Entities for the purpose of demonstrating some of the requirements

set out for compliance with the Track Works Systems Requirement.

Please note that (a) the Tender Documents allow a Member to rely on the professional

experience of one or more Wholly Owned Subsidiary and therefore the Bidder requests that



such arrangement will also apply to reliance on the professional experience of Related Entity

with respect to the Track Works Systems Requirement, mutatis mutandis, and that(b) the

requested clarification shall not derogate from the role and responsibilities of such Related

Entity as currently set out in the Tender Documents, for example, such Related Entity shall

execute and submit the Related Entity Undertaking and shall be responsible (jointly and

severally with the Bidder and the Member) towards NTA for the performance of the part of the

Works (as applicable and respectively to the category of experience demonstrate).

NTA's response

1. This request is rejected - the provisions for a Wholly Owned Subsidiary shall not apply

to a Related Entity.

2. Additionally, please note the provisions of Volume 1 Part II Part A Clause 2.8 in relation

to demonstrating compliance with the Threshold Requirements by demonstrating

responsibility for the works being performed by a third party, while remaining

responsible directly towards the owner (where applicable).

RFC 507

(Vol 1 Part II Part A Clause 2.1 iv)

Different Members' Reliance on a Single Related Entity

NTA is kindly requested to clarify that the same entity (in the event it is considered to be a

Related Entity of more than one Member of the Bidder, under the definition in the said Clause)

can be used to demonstrate the professional experience of more than one Member of the Bidder,

in regard to different Professional Threshold Requirements.

NTA's response

Confirmed.

RFC 508

(Vol 1 Part II Part A Clause 2.1 iv)

Demonstrating a Professional Threshold Requirement through Several Related Entities

NTA is requested to amend the Bidding Documents such that a Member may demonstrate a

Professional Threshold Requirement through several Related Entities, in the event that 100% of

the shares of the relevant Member and Related Entities are held by the same entity. Please note

that confirming such option shall not derogate from the role and responsibilities of such Related

Entities as currently set out in the Tender Documents (please refer to Vol 1 Part II Part A Clause

2.1 iv).

NTA's response


RFC 509

(Vol 1 Part II Appendix 1)

Please be informed that as Indian GAAP fiscal year ends at 31st March, accordingly, we have a

few observations in Addendum 10 which need to be clarified. Our observations are as follows:

a. Indian Currency (INR) have been added within table 1.5(a); Defining exchange rates for fiscal

year ended at December 31st.

Observation: 'Indian currency (INR) exchange rates are to be defined considering fiscal year

ending 3151 March as per Indian GAAP. As of our understanding, INR exchange rates need to

be included in table 1.5 (b) only.



b. For converting equity into ILS with respect to INR: Exchange rate have been included in table

1.6 (Addendum 10) under fiscal year ending on 31st Dec 2016.

Observation: Indian currency (INR) exchange rates are to be defined considering fiscal year

ending 31st March 2017 as per Indian GAAP.

NTA's response


Volume 1 Part III

RFC 510

(Vol 1 Part III) NTA is kindly requested to clarify whether the person signing the Letter of Tender on the

Bidder's behalf must be the Bidder's Authorized Representative (as such term is defined in

Clause 4.3 of the ITB) or whether it can be any person duly authorized to sign on the Bidder's

behalf.

NTA's response

The person signing the Letter of Tender on behalf of the Bidder is to be an authorized signatory

of the Bidder, authorized to bind the Bidder for purposes set out in the Letter of Tender.

RFC 511

(Vol 1 Part III)

NTA is kindly requested to clarify whether the person signing the Letter of Tender on the

Member of the Bidder's behalf must be the Bidder's Authorized Representative (as such term is

defined in Clause 4.3 of the ITB) or whether it can be any person duly authorized to sign on the

Member of the Bidder's behalf.

NTA's response

The person signing the Letter of Tender on behalf of the Member of the Bidder is to be an

authorized signatory of the Member, authorized to bind the Member for purposes set out in the

Letter of Tender.

RFC 512

NTA referred Bidders directly to ICA with queries regarding the ICA Forms.

In order to avoid inconsistency with ICA's responses, it is proposed that NTA provides a list of

all the required ICA forms and clear answers in respect thereof.

NTA's response

Please see contents of Volume 1 Part III, Envelope 3 for the required ICA forms. As indicated

before, all queries in relation to these ICA forms should be directed to the ICA.

RFC 513

(Vol 1)

We have received these 3 forms:

Annex D - Volume 1 Part II Bidding Forms -Price Proposal Excel Datasheets

Annex B - Volume 1 Part III Fin 1 Appendix 1 - Price Proposal Excel Datasheets

Annex A - Volume 1 Part III - Bidding Forms - Fin 1 Appendix 1- Price Proposal Excel

Datasheets



These forms seem to be identical. Which one should be used?

NTA's response

These are all the same form comprising Fin 1 Appendix 1, which was updated in several versions

under different addenda. The latest version was issued with Addendum 8 on 17 October 2017

and is the prevailing version.

RFC 514

Please clarify whether mentioning the details for JV Partner in Letter of Tender will be sufficient

OR we have to attach a formal MOU between Members of Joint venture as a supporting

document to Letter of Tender.

NTA's response

There is no requirement to attach a joint venture agreement or memorandum of understanding

to the Letter of Tender or anywhere within the Bid.

RFC 515

We understood that all the forms of JV, members or Major Subcontractor shall be prepared and

submitted on their respective letter heads. Please advise.

NTA's response

Bidding Forms included within Volume 1 Part III and completed for the purpose of this tender

do not need to be submitted with letterheads.

RFC 516

Please advise whether:

Addendum V, Volume-1 Price Proposal Excel Sheet.

Price Proposal Breakdown Sheet in Addendum-6:

Shall be followed for final submission of Price Proposal.

NTA's response

Volume 1, Part III, Price Proposal shall be completed and submitted as part of the Bid.

Volume 2, Annex 17 Price Proposal Breakdown shall be completed by the Succesful Bidder in

accordance with the provisions of the Agreement.



Volume 1 General

RFC 517

(Vol 1)

Deployment of Workforce:

a. For installation of various sub-systems, it will be necessary to bring-in experts on a deputation

basis visiting for a period ranging from 10 to 60 days.

Request to facilitate assistance required from NTA to ensure timely availability of documents

required & VISA processing.

b. NTA to ensure that a level playing field exists vis-a vis all bidders with respect to the wages

being paid/to be paid to the work force deployed from outside of Israel.

NTA's response

a. NTA will provide the Contractor with letters of support to accompany its application for

working permits, however the obtainment of working permits is the responsibility of the

Contractor.

b. Compliance with foreign workers' minimum wage laws is applicable to all bidders.



RFCs relating to Volume 2

RFC 518

(Vol 2 Annex 3)

Can NTA confirm that the Milestones for at-grade works refer only to track access for Signaling

contractors, as per Tunnel milestones? (MS IDs :Systems-14; systems-15;Systems-16; Systems-

19; Systems 20)

Moreover, the Systems-18 and Systems-19 milestones schedule seem inconsistent. Can NTA

confirm each time for completion?

NTA's response

Yes. These milestones refer to S&TC Contractor access along the track.

We do not see a consistency problem with milestones Systems-18 and Systems-19.

RFC 519

(Vol 2 Annex 3)

Contractual Milestones for Stations equipment finishing

Can NTA clarify what is the physical milestone to be achieved for "complete all required works

in the Technical level to allow S&TC installation start": installation of PES/PEG, or complete

fit-out of all equipments rooms in the stations ? (MS IDs: from Systems-29 to Systems-38)

NTA's response

Refer to Addendum 12. Note that the PES is not in the technical level.

RFC 520

(Vol 2 Part VI Clause 7.22.3)

NTA is hereby requested to modify the wording of said section and delete the words "or should

have identified such discrepancy" at starting at the end of the fourteen (14) sentence.

NTA's response

After consideration this request is rejected. Refer to Addendum 12.

RFC 521


NTA is requested to clarify that in the event that the Contractor is a JV comprised of Israeli and

foreign Members, in order to comply with the requirements of this section, it is sufficient that

the Israeli Member furnish the Employer with the required registrations and certifications.

NTA's response

In respect of the registration with the Israeli Registar of Contractors, for the purpose of signing

the Agreement with NTA, it is sufficient that the Israeli Member of a Joint Venture contractor

furnish the Employer with a valid applicable certification from the Israeli Registrar of

Contractors, as long as such certification applies to the entire scope of Works.

For executing any Works and complying with the Agreement the Contractor and all Members

of the Joint Venture, as applicable, shall have to adhere to all legal requirements pertaining to

registrations and certifications as applicable under the Israeli Law.



RFC 522

(Vol 2 Clause 5.1.5 and 5.3.3)

According to Clauses 5.1.5 and 5.3.3, an instruction (or any other similar act) provided by the

Engineer shall not relieve the Contractor from any responsibility it has under the Agreement.

NTA is kindly requested to clarify that:

(a) in the event that the Engineer provides an instruction which has directly resulted in damage

to any part of the Works or a delay in the performance of the Works, the Contractor shall not be

responsible for such damage or delay; and

(b) in the event that a delay by the Engineer to provide an approval, the Contractor shall be

entitled (other than extension of time) to claim damages.

NTA's response

The contractual provisions in relation to the extent of the Contractor's liability are clear and do

not require amendment.

RFC 523

(Vol 2 Clause 5.1.5)

According to Clause 5.1.5, in the event of an unreasonable and unjustified delay by the Engineer

to provide an approval, as required pursuant to the Contract, the Contractor shall only be entitled

to claim an extension of time. NTA is kindly requested to clarify that in such event, the

Contractor shall also be entitled (other than extension of time) to claim damages and Costs

incurred by it as a result of such delay.

NTA's response

Refer to Volume 2, Clause 20.2 (Prolongation Costs).

RFC 524


NTA is kindly requested to clarify that the Contractor shall not be responsible for any delays

resulting from any act or omission of Other Contractors (in such circumstances the Contractor

will be provided extension of time) and that it should be paid any damages and Costs incurred

by it in connection with any adjustments to the Works required to be made by it as a result of

act or omission by Other Contractors.

NTA's response

Please refer to Volume 2 Clause 20 (Extensions of Time).

RFC 525

(Vol 2 Clause 7.2.2 iii)

NTA is requested to amend paragraph 4 of Clause 7.2.2 iii into the following:

"It is specified that within the durations stipulated for the Clauses of the route (at-grade and

tunnels), the Contractor shall provide access to the S&TC Contractor for a minimum period of

16 continuous weeks in each Work Site from the completion of the installation of the track in

the applicable Work Site and until the commencement of Dynamic Testing (Phase 5 under

Volume 3 Chapter 32)."

NTA's response

After consideration, the request is rejected.



RFC 526


NTA is kindly requested to clarify that the obligation of the Contractor to obtain the occupancy

permit and the certificate of completion shall not apply with respect to works performed by

Other Contractors or in the event that works performed by Other Contractor may prevent, hinder

or interfere with, the obtainment of the said permit and certificate. In such circumstances, the

Contractor shall be entitled to extension of time and reimbursement of Costs incurred by it.

NTA's response

Refer to Volume 2 Clause 20.1 (Qualifying Event of Delay).

RFC 527


Interfaces with Other Contractors - NTA is kindly requested to provide a list of the "Other

Contractors" and the scope of works performed by such contractors, in order to enable the

Bidder to better evaluate the scope of the required coordination and interfaces with the Other

Contractors.

NTA's response

Refer to Volume 4 Part IX Appendix 2 Indicative SoW Matrix.

RFC 528


NTA is kindly requested to amend Clause 8.5.2 such that the Contractor shall not be responsible

for delays not resulting from a failure of the Contractor to perform the Works.

NTA's response

Clause 8.5.2 is clear in its application to circumstances where "the Contractor fails to progress

the Works in accordance with the planned or agreed rate of progress, or appears likely to fail

to achieve any of the Contractual Milestones". No amendment is necessary. Please also refer to

the Contractor's entitlement to extensions of time for Qualifying Events of Delay.

RFC 529

(Vol 2 Clause 8.6)

NTA is kindly requested to clarify that in the event that the Employer suspends the Works, the

Contractor shall be entitled to reimbursement of all Costs related to protection and secure of the

Site.

NTA's response

The consequences of suspension are set out in Clause 8.6.2 (Consequences of Suspension).

RFC 530

(Vol 2 Clause 11.5)

NTA is kindly requested to amend the said Clause such that the amounts which the Contractor

should be entitled to in connection with the engagement of Nominated Subcontractors would be

raised to 10% of the price of the subcontracts with the Nominated Subcontractors.

NTA's response




RFC 531

(Vol 2 Clause 13.3)

NTA is kindly requested to delete Clause 13.3.1 such that the Contractor shall be entitled to

reduce the amount of the Performance Guarantee to the amount of the value of the works to be

performed in connection with rectification of the Minor Defects.

NTA's response


RFC 532


NTA is kindly requested to amend Clause 19.3.9 such that to the extent a Contractor's Change

Proposal is adopted, the Contractor shall be entitled to a fee in an amount equal to 80% (instead

of 50%) of the amount calculated pursuant to paragraph (iii) of Clause 19.3.9.

NTA's response


RFC 533


The responsibility of the Contractor for the issuance of the PTO as drafted in the said clause is

very broad. NTA is kindly requested to detail the requirements in connection with the issuance

of the PTO in order to enable the Contractor to evaluate the pricing of such requirements.

NTA's response

Refer to Volume 3, Part VIII, Chapter 10 PTO Plan.

RFC 534


NTA is kindly requested to reconsider the grace period of two months between the successful

completion of all Tests and the commencement of Commercial Operational Services.

NTA's response

Refer to Addendum 12, where this period has been reduced to 30 days.

RFC 535


NTA is kindly requested to amend the said Clause such that the obligation of the Contractor to

replenish the forfeited Guarantee shall exist provided that the total amount of the replenishments

of such Guarantee will not exceed 2 times the amount of the Guarantee.

NTA's response

Refer to Addendum 12, where this has been incorporated as requested.

RFC 536


NTA is kindly requested to set out a cure period in relation to the Contractor Default Event set

out in Clause 31.1.1.



NTA's response

Please refer to Volume 2 Clause 31.1.2 (Notice of Contractor Default Event).

RFC 537


NTA is kindly requested to delete the specific exclusion of "any acts of terror, hostilities or

animosities" from the definition of Force Majeure.

NTA's response


RFC 538

(Vol 2 Part VI Clause 2.1)

Definitions: Excluded Failure

NTA is requested to add an additional sub-clause e) to the definition stating the following:

"Damage caused by third parties, including vandalism".

NTA's response


RFC 539


Definitions: Excluded Failure

NTA is requested to add an additional sub-clause f) to the definition stating the following:

"incompatibility and/or non-suitability and/or incompliance between the Employer's

Requirements and the Equipment and/or parts and/or components purchased by the Employer,

including in the event that each such Equipment and/or parts and/or components function and/or

operate properly".

NTA's response


RFC 540


Definitions: Latent Defects Liability Period

The Latent Defects Liability Period is significantly longer than the market standard and NTA is

requested to shorten it to one (1) year (i.e.: one year following the Defects Liability Period).

NTA's response


RFC 541


Definitions: Overhead and Profit

Considering, inter alia, that it is unreasonable to require a contractor to substantiate its overhead

costs, we request that the Contractor will be entitled to a “flat” payment for overhead and profit,

equal to 10% of the costs. Accordingly, NTA is requested to modify the wording of the

definition so that the words "shall not exceed" at the end of the eighth (8) row of the definition

shall be replaced with the words "shall be" and the words "unless specifically stipulated



….determined by the Engineer" from the ninth (9) row through the end of the definition, will

be deleted.

NTA's response


RFC 542


NTA is requested to modify the end of this section as follows:

"…in accordance with Good Industry Practice, all applicable Laws and all applicable terms and

conditions of this Agreement or, to the extent that each of the foregoing is silent – in accordance

with Good Industry Practice”.

NTA's response


RFC 543

(Vol 2 Part VI Clause 7.2.2.iii)

NTA is requested to modify the wording of said section by adding the words "or any other

Contractor" after the words "attributable to the Employer" at the seventh (7) paragraph of this

section.

NTA's response


RFC 544


NTA is requested to modify the wording of said section by adding the word "direct" before the

word "damage” and before the word "loss" at the first (1) sentence of this section.

NTA's response


RFC 545

(Vol 2 Part VI Clause 7.4.3iv)

NTA is requested to delete this section in its entirety.

NTA's response

Clause number stated does not exist.

RFC 546

(Vol 2 Part VI Clause 7.4.3v)


NTA's response


RFC 547

(Vol 2 Part VI Clause 7.4.3vi)




NTA's response


RFC 548


NTA is requested to modify the wording of said section by adding the following words "solely

in cases of existing, live and operating utilities and/or infrastructure" after the words "by altering

the design".

NTA's response


RFC 549


NTA is requested to modify this Section and delete the words "or exceed" at the end of the third

(3) sentence.

NTA's response

After consideration, this request is rejected.

RFC 550



word "damages" at the second (2) sentence of this section.

NTA's response


RFC 551


NTA is requested to modify this Section and delete the words "or advisable" after the words "is

required" at the end of the six (6) sentence.

NTA's response


RFC 552


NTA is hereby requested to clarify the NTA shall be responsible for obtaining the occupancy

permit (4 טופס) for the Depot or other structures, should it be required.

NTA's response

NTA will obtain permits to occupy for the Security, Admin and Substation buildings within the

depot site. The Contractor is responsible for obtaining the occupancy permit for all other

buildings within the Depot site.



RFC 553


NTA is hereby requested to modify the wording of said section by adding the following at the

end of said sub-section "It is hereby clarified that in the event that the obtaining of such Permits

is preconditioned on conditions connected with the Employer and/or other Contractors operating

on his behalf, then the Employer shall be solely responsible to fulfill such preconditions and

obtain said Permits".

NTA's response

After consideration, this request is rejected. The Contractor is responsible for complying with

its contractual and legal obligations. In the event of a delay by the Employer or an Other

Contractor, the Contractor may refer to any entitlements it may have in respect of a Qualifying

Event of Delay.

RFC 554


NTA is requested to amend the wording of this section and delete the word "unreasonably" at

the third (3) sentence.

NTA's response


RFC 555


NTA is requested to delete the last paragraph of this Section in its entirety, starting from the

words "no extension of time or cost…".

NTA's response


RFC 556


As the ability of the Contractor to object to the nomination of a subcontractor by NTA is very

limited albeit the fact that the former assumes all the risks connected with and/or related to such

nomination, NTA is requested to clearly specify the types of works that it intends and/or

envisages to nominate a subcontractor for their execution in order to enable the Bidder to better

assess the risks involved in such nomination.

NTA's response

Currently it is not known of any further nominated subcontractors other than the one specified

in Volume 2 Clause 12A.

RFC 557


Option

It seems that the word "after" at the first sentence is unnecessary.

NTA's response

No. The entitlement to a re-comissioing fee arises only after 8 months prior to the Planned

Delivery Date of the Last Vehicle.



RFC 558


NTA is requested to amend the requirements of said section removing the commencement of

Commercial Operations as a precondition for the issuance of the Take Over Certificate and

limiting the issuance of said Take Over Certificate solely to the completion of the tests

connected with the Works.

NTA's response


RFC 559

(Vol 2 Part VI Clause )

In keeping with our above request to remove the Commercial Operation as a precondition for

the Take Over Certificate, NTA is requested not to commence Commercial Operation until all

the requirements for same have been fulfilled.

In the event that prior to completion of the tests for the Works and issuing of the Take Over

certificate for any reason whatsoever NTA decides to commence Commercial Operation or

driving the train with/without passengers along the Red Line alignment, we request that NTA

will be deemed to have issued such Take Over Certificate to the Contractor.

NTA's response


RFC 560

(Vol 2 Part VI Clause 13.1.1ii)


NTA's response


RFC 561


NTA is requested to delete this section in its entirety as the provision stipulated in Section 13.3.2

properly addresses the situation detailed in Section 13.3, and covers the related risks.

NTA's response


RFC 562


NTA is requested to delete this Section in its entirety.

NTA's response


RFC 563


NTA is requested to amend the wording of this section by inserting the following wording at

the end of the section "the Operator".



NTA's response

The Operator is included in the definition of Other Contractors.

RFC 564


NTA is requested to add another Qualifying Event of Delay, as follows: “a delay in delivering

any part of the Site to the Contractor by the respective delivery date stipulated in this

Agreement”.

NTA's response

Please refer to Clause 7.2.2.

RFC 565


NTA is requested to amend the wording of this section by replacing the words "two months"

with the words "14 days" throughout this section.

NTA's response

See response to RFC 536 above.

RFC 566


NTA is hereby requested to delete the referenced section in its entirety, since the monies

received under the Advance Payment have already been utilized at this stage of the Project to

enable the implementation of the Works. Alternatively, NTA is requested to modify said section

by limiting its applicability to cases in which the Agreement is terminated due to the fault of the

Contractor.

NTA's response


RFC 567


NTA is requested to amend this section so that the Contractor will not be required to

discharge/waive disputed monetary amounts and/or monetary amounts due to Changes and/or

prolongation or other disputed amounts that have been referred to the dispute resolution

mechanisms stipulated in the Agreement.

NTA's response


RFC 568


NTA is hereby requested to apply reduction of the guarantee amount corresponding to achieving

major milestones, and as customary in projects of this magnitude.

NTA's response




RFC 569


The term of the Performance Guarantee is longer than the market standard and it's already

covered under the Defects liability Guarantee. NTA is hereby requested to adjust the period of

the Performance Guarantee until Take Over Certificate and delivery of the Defects liability

Guarantee. It is unreasonable to have both guarantees in effect at the same time with respect to

the same issues especially after take over has occurred and the construction risk is over.

NTA's response


RFC 570


NTA is hereby requested to limit the total amounts that may be forfeited and replenished to no

more than three (3) times the amount of the guarantee.

NTA's response


RFC 571

(Vol 2 Part VI Clause 25.7.1i)

NTA is requested to amend this Section and add the following at the end of this section "and

such order has not been rejected, withdrawn or dismissed within 90 days thereafter".

NTA's response


RFC 572


NTA is requested to amend this Section and add the following at the end of this section "and

such appointment has not been rejected, withdrawn or dismissed within 90 days thereafter".

NTA's response


RFC 573


NTA is requested to amend this Section and add the word "material" after the word "all or any"

and before the word "part" in the second sentence.

NTA's response


RFC 574


NTA is requested to amend this Section and to replace the word "immediately" in the fourth (4)

sentence, with the words "as soon as reasonably practicable".

NTA's response




RFC 575


NTA is requested to amend the wording of this section by inserting the following wording at

the end of the section "but in any event no longer than the expiry of the Defects Liability Period".

NTA's response


RFC 576



NTA's response


RFC 577


NTA is requested to amend the wording of this section, so that, in case the event described in

this section occurred with respect to a Member (the “Defaulting Member”), the section would

enable a certain cure period during which the remaining Members of the Contractor will be

entitled to replace the Defaulting Member with another entity which meets the applicable

Threshold Requirements or is otherwise satisfactory to NTA.

NTA's response

Each such event will be considered by NTA on a case by case basis, exercising its discretion

reasonably.

RFC 578


NTA is requested to clarify that notwithstanding the last paragraph of section 31.1, which

provides that the Employer shall be entitled to all remedies pursuant to the Contracts Law

(Remedies for Breach of Contract), the LDs for Delay shall be the sole monetary remedy for

delays in completing the Works.

NTA's response

Please refer to Volume 2 Clause 8.4 which states that "LDs for Delay shall be the only monetary

damages due from the Contractor in the event of late completion of any Contractual Milestones

specified in Annex 3 as carrying LDs for Delay, other than in the event of termination by the

Employer." Please note that Clause 31.1 refers to an event of termination by the Employer upon

reaching the contractual cap of LDs for Delay.

RFC 579


NTA is requested to amend the wording of this section by deleting this section in its entirety,

inter alia, as it is already covered under Section 32.2.1.

NTA's response




RFC 580

(Vol 2 Part VI Clause 32.4(ii))

NTA is requested to replace the reference to “eighteen (18) months” with “six (6) months”.

NTA's response


RFC 581

(Vol 2 Part VI Clause 32.4(iii))

NTA is requested to replace the reference to “270 consecutive days” with “180 consecutive days

or 270 days in aggregate (whether consecutive or not) during a period of 365 consecutive days”.

NTA's response


RFC 582

(Vol 2 Part VI Clause 32.5.5i)

NTA is requested to amend the wording of this section by deleting the following wording "and

reimbursement of proportional part of the Advance Payment" following the words "including

liquidated damages" in the sixth (6) row preceding the end of the section.

NTA's response


RFC 583


NTA is requested to amend the wording of this section by inserting the language "any acts of

hostilities or animosities, rocket firings" following the words" including: A war (whether

declared or not)".

NTA's response


RFC 584


NTA is requested to delete the paragraph "any acts of terror, hostilities or animosities" from the

list of exclusions to the definition of Force Majeure Event.

NTA's response


RFC 585


As customary in such agreements, NTA is requested to clarify under this Section that a pledge

of Contractor's rights under the Agreement in favor of its finance providers is allowed.

NTA's response

In accordance with this clause, any such pledge is subject to the Employer’s prior approval.



RFC 586


NTA is requested to delete the language "or should have become aware" following the wording

"after the Contractor became aware" at the last sentence of the section.

NTA's response


RFC 587


NTA is requested to delete the following language "or should have become aware" following

the wording "after the Contractor became aware" at the first sentence of the section

NTA's response


RFC 588

The Tender Documents contain 3 different Excel sheets:

· Annex E - Volume 2 - Construction Price Proposal Breakdown

· Annex C - Volume 2 - Annex 6 Payment Milestones

· Fin 1 Appendix 1 - Price Proposal

We ask for an explanation of how these 3 files are connected and reflected in the monthly interim

payment.

Please clarify whether the Contractor is entitled to receive payments under Annex 6- payment

milestones excel or from Fin 1 Appendix 1 - Price Proposal Excel Datasheet.

NTA's response

Each of these documents serves a different purpose and is accompanied by different provisions

and instructions within its applicable volume of the tender documents.

RFC 589

It is requested that LDs for Delay (under Section 8.4.3 to the Agreement) shall be the sole and

exclusive remedy available to NTA from the Contractor in the event of late completion of the

Works. Similarly, we request that in case of failure to meet KPIs in accordance with Annex 5,

the imposition of Payment Deductions (under Section 16.11.3 to the Agreement) shall be the

sole relief available to NTA.

We believe that the LDs cover more than enough the expected damages that may be caused to

NTA in case of Delay, and that the sanction of Payment Deduction is serious enough.

Alternatively, NTA may choose to claim the damages instead of imposing LDs or Payment

Deductions.

Also, we kindly request to add a cap for the LDs / Payment Deductions imposed (5%), after

which NTA shall be entitled to terminate the Agreement for material breach.

NTA's response

Please refer to Volume 2 Clause 8.4 (Liquidated Damages for Delay), which includes a cap of

10% of the Consideration and a limitation in respect of other monetary damages.

In respect of KPIs, the request is rejected.



RFC 590

Under Section 1.4 to the Agreement the Contractor is requested to warrant that under no

circumstances (even in the event of a dispute) will it cease and/or delay and/or suspend and/or

act in a manner that could delay the Red Line Works.

Due to the magnitude of this Project, the Contractor cannot tolerate any delay in payments. This

is as critical to the Contractor as the continuity of the Works is for NTA.

Therefore, we request that under no circumstances will NTA retain payments which are not in

dispute.

NTA's response

It is hereby clarified that undisputed amounts which shall be certified for payment shall be paid

in accordance with the contractual provisions.

Please refer to the Employer's payment obligation as detailed in Volume 2 Clause 22.5 and the

consequences of late payment under Clause 22.6.

Please also refer to the Contractor's entitlement to terminate the Agreement under Volume 2

Clause 31.4 (iii).

RFC 591

(1) It should be clear that any Delay in the execution of Works caused due to the Interface

with Other Contractors in Site, should entitle the Contractor with extension of time and

reimbursement of its costs.

Also, the Contractor is aware that part of its Design shall be integrated with Other Contractors'

designs.

We request a clear representation from NTA that the liability for such design, including any

error which may lead to delays and/or inability to complete the Works by the Contractor, should

be assumed by NTA and in such event the Contractor shall be entitled with extension of time

and reimbursement of its costs. For instance, the Contractor should be exempt from any liability

for works and/or design of the signaling contractor or LRV supplier, as the Contractor does not

have any means of control over their work.

(2) Correspondingly, in the event of Nominated Sub-Contractors, it is unreasonable to hold

the Contractor fully responsible and liable for the proper and timely provision of that part of the

Works subcontracted by the Engineer's instruction to a Nominated Subcontractor. The remedies

available to the Contractor under the Agreement against the Nominated Subcontractors are

insufficient.

For example, we would like to have an effective control over the monthly payments for the

Nominated Subcontractors indemnification for damages caused by it, liability for its SOW, etc.

NTA's response

(1) Refer to Addendum 12.

(2) A Nominated Subcontractor is a Subcontractor of the Contractor, and once nominated is

under its control, as any subcontractor.

RFC 592

In accordance with Section 7.22 to the Agreement, there are number of conditions that the

Contractor is required to comply with regarding the Permits Provided by the Employer – such

as fulfilling all pre-conditions at its cost; to make modifications to those Permits if required

during the Designs, etc.



We request that NTA should assume liability in all matters related to those Permits. Any change

and/or modification thereof should be completed by NTA, and the costs for compliance with

the preconditions of such Permits should be borne by NTA.

To this end, please provide us with a list of all the pre-conditions for such Permits.

NTA's response


RFC 593

We request to apply the following amendment: The Engineer shall evaluate the Cost based on

produce quotations, invoices vouchers and accounts or receipts in substantiation plus main

contractor overhead and margin of 12%.

This is the common practice in all similar projects and we see no justified reason to deviate

therefrom.

NTA's response


RFC 594

Section 38.1 to the Agreement [Contractor's Claims] - Our main concern with respect to the

proposed mechanism relates to the extremely tight timetable for submitting the notice of Claim:

28 days after the Contractor became aware, or should have become aware, of the event or

circumstances.

We request to change the above period into more realistic one, 56 days.

NTA's response

After consideration the request is rejected. In the event of a required extension of time for the

submission of a notice to claim, the Contractor may approach the Engineer with such request

which will be considered on its merits.

RFC 595

(Vol 2)

Since most of the equipment’s required in this work needs to be bought outside of Israel. It is

also observed that Israel had different trade agreements among countries based on levels of

bilateral & political relationships.

Considering such facts & reasons; For fair participation of international bidders & level playing

field exists vis-a vis all bidders to compare the quoted prices, we request NTA to either provide

import duty exemptions OR reimbursement of all Import duties paid during import of goods.

These Import duties to be considered separately above & over the bid price i.e. on account of

NTA.

We hope, you would consider our request to ensure fair participation of all bidders.

NTA's response


RFC 596

(Vol 2)

We are concerned with cash flow imbalance & contractor needs to source funding; Such cash

flow will result in huge indirect cost implications and delay in work progress,



To mitigate: We request to include a billing schedule wherein having provisions for releasing

payments (against material supplies) based on the actual cost incurred for arranging them based

on documented proofs.

NTA's response


RFC 597

(Vol 2)

As per defined contractual milestone, uniform availability of access is presumed to ensure

uniform progress of work. But there may be chances that access dates may be delayed &

possibly bunched causing huge cost implications towards contractor & affect the work severely.

We request NTA to suggest mitigation mechanism.

NTA's response

Please refer to Clause 7.2.2 as amended by Addendum 12.

RFC 598

(Vol 2)

For unincorporated JV (Bidder) constituting a foreign company & a Local Israel company

members:

We need to understand that for participating in tender and/or prior to entering into contract

agreement; whether JV (Bidder Alias Contractor) OR only its members (Foreign Company

member/s) needs to register in compliance to Israel Laws.

NTA's response

Please refer to RFC 521 above.

RFC 599

(Vol 2)

For Post Award Conditions: In case Contractor is a unincorporated JV constituting a foreign

company member/s & a Local Israel company member/s: We need to clarify that only contractor

(JV, as a whole) is only liable to fulfillment the requirement of clause 6.1.20 , not the individual

members of JV.

NTA's response

Please refer to RFC 521 above.

RFC 600

(Vol 2)

At present (i) the draft Contract Agreement specifies that the “Engineer” will be appointed by

the Employer (not jointly by the Parties), (ii) the Engineer will not be a party to the Contract

Agreement and (iii) the Engineer will have a pivotal role and possess considerable power and

responsibility under the Contract Agreement (including as regards such things as issuing the

Notice to Proceed, issuing Change Orders, making cost, time and profit determinations,

resolving conflicts between contractual and technical terms, issuing instructions, executing the

Take-Over Certificate etc.) but the Engineer is not required to act impartially nor must it have

any particular professional qualifications, resources, competence or experience.

Therefore, it is foreseeable that a failure by the Engineer to perform its duties under the Contract

Agreement or any error, negligence, delay, partiality or improper or unprofessional conduct on



the part of the Engineer or any breach of confidentiality by the Engineer could result in

significant harm and loss to the Contractor (for which the Contractor would not be fully

compensated under the terms of the Contract Agreement, whether pursuant to a Qualifying

Event of Delay or otherwise).

Given the above situation, would NTA please clarify whether the terms of the Engineer’s

Appointment will provide for the granting of a Collateral Warranty/Duty of Care Undertaking

by the Engineer to the Contractor (under which the Engineer will owe a duty of care to the

Contractor in relation to the performance of its services and be obliged to maintain appropriate

P. I. insurance cover)?

NTA's response

After consideration, the request is rejected. Please refer to Volume 2 Clause 5.1.5 i.

RFC 601

(Vol 2 Clause 13.1)

Under Clause 13.1 of the draft Contract Agreement the Contractor is to submit a Take-Over

Certificate to the Engineer “After the successful completion of all Tests related to the Works

pertaining to the Red Line Project as a whole, as shall be evidenced in the test reports, and the

commencement of Commercial Operational Services”. Accordingly, this means that the

Contractor will be unable to achieve contractual completion of the Works unless and until all of

the NTA’s Other Contractors have completed their work and the NTA becomes licensed to

operate the Red Line (which are matters outside the Contractor’s control).

Given the above situation, would NTA please clarify whether the Contractor may issue a Take-

Over Certificate in the event that the Works have been completed for more than the period of 2

months referred to in Clause 20.2.5 without the Commercial Operational Services having

commenced within that 2 month period?

NTA's response

After consideration, the request is rejected. Please refer to the Contractor's entitlements after the

lapse of 30 days (as amended by Addendum 12) between the successful completion of all Tests

and the commencement of Commercial Operational Services.

RFC 602


In Clause 28.2.2, the Contractor’s indemnity is stated to be for debts, losses, expenses, damages

etc. incurred by the Employer “under or in connection with this Agreement” rather than being

linked to a breach of the Contract by the Contractor.

Would NTA please clarify that the indemnity in Clause 28.2.2 is intended to apply only to debts,

losses, damages etc. that originate from a breach of the Contract by the Contractor (and that the

indemnity will be subject to Clause 28.3)?

NTA's response

The clause shall remain unchanged.



RFC 603


Qualifying Events of Delay – Whilst it is quite usual for a Contractor to be required to

mitigate the effects of any delay caused by Qualifying Events of Delay, it is unusual to qualify

its entitlement in the manner set out in the provisos to Clause 20.1.1. One possible

interpretation of proviso (a) to Clause 20.1.1 (which states that the Contractor’s entitlement to

an extension of time is subject to the Qualifying Events of Delay directly delaying the

completion of the applicable Contractual Milestones or Planned Take-Over Date) is that,

instead of the Engineer making an assessment of the likely delay based on the Contractor’s

submission, one must wait until the Milestone is actually completed or the Planned Take-Over

Date actually occurs before one establishes whether the Qualifying Event of Delay actually

resulted in any delay (which cannot be the NTA’s intention).

NTA's response


RFC 604


LDs for Delay – Clause 8.4.1 of draft Contract Agreement states that the Contractor will (if it

fails to comply with any of the Contractual Milestones specified in Annex 3) incur LDs for

Delay as specified in Annex 3 (and at the LD rates specified in Annex 21). However, not

every Milestone listed in Annex 3 has a rate of LDs set opposite to it in the column headed

“Liquidated Damages Level” in Annex 3 (some of the boxes are currently blank).

Would NTA please clarify whether those Milestones in Annex 3 which have no specified rate

of LDs are not subject to LDs for Delay (and, if so, whether the words “nil” or “not

applicable” should be inserted into the relevant boxes in Annex 3 and the wording of Clause

8.4 amended to clarify this)?

NTA's response

It is confirmed that the Milestones which do not have specified rates for LDs for Delay do not

carry LDs for Delay. Refer also to RFC response letter 2, RFC 47.

RFC 605

The time for completion of systems-31 Milestone “Complete all required works in the Technical

rooms to allow S&TC installation start in Carlebach Station” seems inconsistent with the time

allowed for all the other stations (6 weeks against at least 30 weeks for all other stations). Can

NTA review the time for completion?

Some milestones are scheduled independently from the NTP. Consequently, the construction

planning can be significantly impacted by the effective NTP date and some milestones could

become critical. Can NTA link each milestone to the NTP ?

NTA's response

1. The time allowed for these milestones was incorrect, and has been corrected in

Addendum 11.

2. Refer to Addendum 12.

RFC 606

Vol 2 Pt VI article 7.29 mentions the incoterm DDP. Would it be possible to propose an

Incoterm DAP to Tel Aviv ?



NTA's response


RFC 607

1. Please clarify if, as for the bid bond, the members of the bidder can each submit separately

their guarantees for the subsequent securities (performance, defect liability, maintenance) to

add up to the total required.

2. Could you please confirm that the Parent Company Undertaking stated in article 23A means

a Parent Company Guarantee. If yes, please confirm that there is no template for this Parent

Company Guarantee ?

3. Under art 23.1 to 23.3 we have to deliver 3 bonds. Can you confirm that, contrary to the

Tender Bond, we don’t need to issue these bonds by a branch of a licensed bank located in

Israel ?

4. More generally, we would like to discuss the total security package and its overall value.

NTA's response

(1) Please see reply to RFC 34 in Clarification letter 2.

(2) A Parent Company Guarantee is not required. The reference is to the Parent Company

Information and Undertaking Form within Volume 1 Part III.

(3) Confirmed, please refer to the definition of "Financial Entity".

(4) The scope of guarantees shall remain unchanged subject to the change in APG amount

in Addendum 12.

RFC 608

The Employer shall arrange and issue a Contractors All Risks insurance policy.

For aforesaid CAR policy it is understood that this policy will be incurred by the NTA and there

will not be any obligation towards the bidder for the payment of premium of the CAR Policy,

please confirm.

NTA's response

Confirmed.

RFC 609

In Addendum No. 6, the access and handover dates for divided alignment sections and length

are provided, but the location (start and ending kilometrage) of each section is not identified.

For better preparation of the system work construction schedule, please indentify the location

(start and ending kilometrage) of the following sections:

1. At grade south access including Systems-AD-03, AD-04 AD-05 AD-06 AD-07 AD-08 AD-

09 AD-10 AD-11;

2. At grade east access including Sytems- AD-12, AD-13;

3. Tunnel access from Shaft 5/8 to EM-HAMOSHAVOT;

4. Depot access including Systems AD-01A, 01B, 01C and 02.

NTA's response

1&2. The specific locations shall not be provided at this stage.

3. The access to this section shall be provided as part of Systems-AD-19 (Tunnel Section - Ben

Gurion to Shaft 5/8 - access from Depot Portal).

4. Refer to Volume 5, Part XVII, Chapter 7.



RFCs relating to Volume 2A

RFC 610

(Vol 2A Clause 7.13)

NTA is requested to clarify that in the event that the issuance of the PTO is postponed (other

than due to reasons attributable to the Contractor) after the Contractor has already commenced

mobilization, the Contractor shall be entitled to compensation for its Costs.

NTA's response

Please refer to Addendum 12.

RFC 611

(Vol 2A Clause 22.A.c)

Under the rules of the RFP, the winning Contractor shall sign the Construction Contract and the

Maintenance Contract. Given the different nature and timescale of the tasks of both contracts,

it may occur, in the case of a joint venture, that some members of the JV may want to alter the

proportion of their shares in the JV during the course of the Maintenance Contract.

In the understanding that the JV members will keep joint and several liability to the Employer

for the performance of the Maintenance Contract, could you please confirm that NTA will not

unreasonably withhold its consent to a modification in the shareholding of the joint venture ?

NTA's response

Please note that Volume 2A Clause 22A(c) provides that "the Contractor shall not alter his

composition or legal status without the prior consent of the Employer". NTA as a

governmental company is bound by law to the principles of reasonable conduct.

RFC 612

(Vol 2A Clause 2.1)

Definitions: Overhead and Profit

Considering, inter alia, that it is unreasonable to require a contractor to substantiate its overhead

costs, we request that the Contractor will be entitled to a “flat” payment for overhead and profit,

equal to 10% of the costs. Accordingly, NTA is requested to modify the wording of the

definition so that the words "shall not exceed" at the end of the eighth (8) row of the definition

shall be replaced with the words "shall be" and the words "unless specifically stipulated

….determined by the Engineer" from the ninth (9) row through the end of the definition, will

be deleted.

NTA's response


RFC 613

(Vol 2A Clause 7.6.3)


word "damages" at the second (2) sentence of this section.

NTA's response




RFC 614


NTA is requested to modify this Section and delete the words "or advisable" after the words "is

required" at the end of the six (6) sentence.

NTA's response


RFC 615


NTA is requested to amend the wording of the section by adding the following wording at the

end of the section "save for events that required the use of such Spare Parts due to an event

and/or damage caused not by an act and/or omission of the Contractor".

NTA's response


RFC 616





NTA's response


RFC 617

(Vol 2A Clause 13)




NTA's response

Please specify which sub-clause is being referred to.

RFC 618


NTA is requested to modify this Section and delete the words "or exceed" at the end of the third

(3) sentence.

NTA's response


RFC 619

(Vol 2A Clause 16.1.3, 16.2.1)

NTA is requested to bring forward the Start-Up Payment to the commencement date of the

mobilization phase for the Maintenance Services. As NTA is well aware, monetary sums are

required to be invested and spent prior to the Commercial Operation Date to enable

commencement of the Maintenance Services upon receipt of the permit to operate, inter alia,

for mobilization, issuance of the Maintenance Guarantee, insurances, purchase of equipment



and so forth. The above request is pertinent given the possibility of delaying the issuance of the

permit to operate and/or commencement of Commercial Operation due to acts and/or omissions

of other third parties and at no fault of the Contractor.

NTA's response


RFC 620

(Vol 2A Clause 16.4.1ii)

NTA is requested to delete the section, inter alia, as the requirement is not necessary due to the

nature of the Services and payment of the consideration in respect thereof (i.e. the consideration

for the Maintenance Services is a monthly lump sum payment based on the Financial Proposal

submitted in the Bid irrespective of costs incurred by the Contractor). Alternatively, NTA is

requested to clarify the necessity of such requirement, including by specifying the particular list

of information and/or documents required for effecting payment and/or to modify the method

of payment for the Maintenance Services.

NTA's response


RFC 621


We request that the Payment Deductions pursuant to this section shall be the sole monetary

liability of the Contractor for failure to meet the KPIs.

In addition, NTA is requested to clarify that as long as the Contractor pays the Payment

Deductions, the Employer shall not terminate the Agreement due to failure to meet the KPIs.

NTA's response


RFC 622

(Vol 2A Clause 17.7.1vi)

Evaluation Material Costs Calculations

NTA is requested to add the words "subject to Contractor's prior approval for the quality and

suitability of such products" after the words "to provide materials" at the first (1) sentence.

NTA's response


RFC 623


NTA is requested to amend this Section and to replace the word "immediately" in the fourth (4)

sentence, with the words "as soon as reasonably practicable".

NTA's response


RFC 624




NTA is hereby requested to limit the total amounts that may be forfeited and replenished in each

operational year to no more than two (2) times the amount of the guarantee.

NTA's response


RFC 625


NTA is requested to delete the word "unreasonable" throughout this Section. Contractor should

be compensated for any suspension which is not under Section 24.4.

NTA's response


RFC 626


NTA is requested to amend the wording of this section, so that, in case the event described in

this section occurred with respect to a Member (the “Defaulting Member”), the section would

enable a certain cure period during which the remaining Members of the Contractor will be

entitled to replace the Defaulting Member with another entity which meets the applicable

Threshold Requirements or is otherwise satisfactory to NTA.

NTA's response

Each such event will be considered by NTA on a case by case basis, exercising it discretion

reasonably.

RFC 627

(Vol 2A Clause 26.5.2iv)

NTA is requested to add the following words "to the extent applicable at such time" at the

beginning of this Section.

NTA's response


RFC 628

(Vol 2A Clause 27.1.1ii)

NTA is requested to amend the wording of this section by inserting the language "any acts of

hostilities or animosities, rocket firings" following the words "including: A war (whether

declared or not)".

NTA's response


RFC 629

(Vol 2A Clause 27.1.2iv)

NTA is requested to delete the paragraph "any acts of terror, hostilities or animosities" from the

list of exclusions to the definition of Force Majeure Event.

NTA's response




RFC 630


NTA is requested to delete the words "or should have become aware" following the words "after

the Contractor became aware" at the last sentence of the section.

NTA's response


RFC 631


NTA is requested to delete the words "or should have become aware" following the words "after

the Contractor became aware" at the first (1) sentence of the third (3) paragraph.

NTA's response


RFC 632

We kindly request to modify the maintenance part of the Tender as follows:

We ask that the Contract be amended to reflect that the Contractor will finish his contractual

obligations at the end of the “Defects Liability Period”, i.e. 24 months after the receipt of the

“Take-Over Certificate”.

NTA's response


RFC 633

(1) Given the difference of scope between construction and maintenance periods (for example,

we will not be in charge of track maintenance), it would be logical not to keep the same

shareholding between the partners of our group. Will NTA allow changes in the

shareholding once the warranty period is passed ?

(2) The start-up payment will only be paid at the start of operation. However, maintenance

activities, and therefore maintenance initial costs, will have to be incurred long before that,

with the hiring and training of the full maintenance team and the preparation of the

maintenance management plan. Could NTA consider anticipating the payment of the start-

up payment 6 months before start of operation, against receipt of corresponding guarantee ?

(3) Could you detail the conditions of handover of the system at the end of each of the

maintenance periods (5 years, 10 years, 16 years) so we can price the maintenance

accordingly ?

NTA's response

(1) As the Agreement provides, such changes are subject to the Employer's prior approval.

(2) After consideration the request is rejected.

(3) Refer to Volume 4A, Part IXA, sections 3.3 and 5.1, as amended by Addendum 12, and the

Vol 5 Chapter 1.5 RL Maintenance Plan, section 15.