CONSULTANCY AGREEMENT
no. …/…
by and between
…………………
and
……………….
This Consultancy Agreement (hereinafter referred to as the “AGREEMENT”) is concluded on
……………. (“Commencement Date”) by and between
1. ………………………, a company registered and existing under the Laws of ………., having
its registered office at …………………, registered under …………………., (hereinafter referred to as
the “Contractor") duly represented by ……………………………………,
and
2. ……………………., a company registered and existing under the Laws of …………, having
its registered office at ………………, registered under …………………., (hereinafter referred to as
the the “Consultant”) duly represented by………………………………….
RECITALS
A. ……………………………, (the “Beneficiary”) issued an invitation for submission to tender for the
…………………………… (hereinafter referred to as the “Project”).
B. The Contractor desires to submit his offers to the Beneficiary for the tender, setting forth the
terms and conditions pursuant to which the Contractor would undertake the design and
construction obligations for the Project in accordance with the requirements of the procurement
documentation issued by the Beneficiary.
C. If, following the submission of the offers, the Beneficiary awards the Project/Projects to the
Contractor, the Contractor will enter into a Design & Build Contract (the “Design & Build
Contract”) with the Beneficiary for the execution of the design and construction works comprised
in the Project as required in the procurement documentation.
D. The Contractor has requested, and the Consultant has agreed, pursuant to the terms of this
Agreement, to undertake the design and consulting services required for the preparation of the
Proposal in accordance with the requirements of the procurement documentation. If the Beneficiary
accepts the Proposal and the Design & Build Contract is concluded, the Contractor and the
Consultant will further negotiate the terms and conditions of a design agreement pursuant to which
the Consultant would undertake the professional design and consulting services for the Works in
accordance with the Beneficiary’s procurement documentation.
E. The purpose of this Agreement is to set forth the terms and conditions pursuant to which the
Consultant will undertake the tender design and related consulting services required in connection
with the offer (the “Tender Design Services”).
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NOW THEREFORE, the Parties in consideration of the mutual promises and agreements
specified hereinafter, do hereby agree as follows:
ART. 1 Definitions
“Agreement” means these terms and conditions, including Appendix A;
“Document” means any document, including (but not limited to) a drawing, specification,
manual or report, whether in tangible, electronic or any other format, prepared by or on behalf of
Consultant as part of or in connection with the Services;
“Party” means either Consultant or the Contractor as the case may be, and “Parties” means
Consultant and the Contractor;
“Services” means the services to be performed and / or provided by or on behalf of the
Consultant for the Contractor under this Agreement as described in Appendix A.
ART. 2 Term of the Agreement
The agreed starting date for the provision of Services is the Commencement Date. This
Agreement shall remain in effect until submission of the commercial offer (“Offer”) by the
Contractor for the tender of the Project, and award of the tender by the Employer, unless
terminated earlier in accordance with the terms of this Agreement or extended by prior mutual
agreement of the Parties in writing.
ART. 3 Scope of the services
3.1 The Consultant’s scope of services is attached hereto as Appendix A. In addition to the
Tender Design Work, the Consultant agrees to and shall provide such other similar and related
services as may be reasonably required by the Contractor, to enable the Contractor to develop
and submit the Proposal in accordance with the requirements of the procurement
documentation, including other working documents such as draft reports, drawings and
quantities.
3.2 The Parties expressly acknowledge and agree to nominate the Consultant as
subcontractor within the Tender and that in the event the Contractor is awarded the
Project/Projects, the Consultant will provide the Design Services, which shall be subject to the
agreement by the Parties of the Design Services Agreement.
3.3 The Consultant acknowledges the Design Service Agreement will require a “back to
back” agreement covering all issues related in the scope of work to be included in the future
Detail Design Services Agreement between the Contractor and the Consultant.
3.4 The Consultant acknowledges that the Design Services Agreement will provide
obligations with respect to its scope of work that mirrors the obligation of the Contractor to the
Beneficiary with respect to such scope of work. The Consultant shall be bound to assume
towards the Contractor obligations and responsibilities derived from/related to the design
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assumed by the Design Services Agreement towards the Beneficiary pursuant to the Design
Build Contract (i.e in accordance with all legal requirements, specifications and guidelines
applicable to the Contractor under the Design & Build Contract).
3.5 The Scope of this Agreement is related to the technical assistance services in relation
to the design works, namely:
A. During the preparation of the Offer up to the nomination of the successful tenderer,
including the evaluation procedure (responding to the Beneficiary clarification
requests related to the Tender Design Services provided, if requested);
B. In case the Client is nominated as successful tenderer, during the negotiation phase
until the signature of the Main Contract
for the ongoing tender procedures of the project.
3.6 During the preparation of the tender, the Consultant will provide the following services:
a) advising on relevant local customs and practices, laws and regulations;
b) advising on the interpretation of award criteria, contract terms and specifications;
c) advising on the clarifications that should be requested to the provisions of the
Tender Documents;
d) preparation of all the documents necessary for the fulfilment of the qualification
criteria stated in the Tender Documents;
e) preparation of geological advice reports and Bill of Quantities, based on the
Consultant’s previous experience and available additional information, if case may
be;
f) preparation of the Bill of Quantities, based on the Tender Design/optimizations;
g) elaboration of the technical offer, as per requirements of Tender Documentation, in
order to ensure the compliance with the requirements of the Authority specified in
the Tender Documents, respectively:
- design methodology and method statement;
- Tender Design as per the Employer Requirements;
- Quality Assurance Plan;
- Site Organization and materials sources;
- Borrow pit identification/pre-agreements with town halls/local owners;
- Site Organization identification/pre-agreements with town halls/local owners;
- Equipment installations;
- Equipment distribution/months;
- Personnel;
- Manpower distribution/months;
h) BoP analysis for all the prices in the BoQ and arithmetic checks in order to assure
the accuracy of the offer;
3.7 During the evaluation procedure, the Consultant will provide the services in relation to
assistance in responding to all the clarifications requested by the Authority during the evaluation
procedure and, if necessary, elaborating and reviewing the additional documents that should be
submitted to the Authority for an accurate and complete evaluation.
3.8 During the negotiations phase, if the case may be, and signing of the Main Contract,
the Consultant will provide the following services:
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a) responding to the potential requests of remedy form the Authority if the case may be,
elaborating and reviewing the additional documents that shall become part of a
comprehensive and complete contract;
b) advising on relevant local customs and practices, laws and regulations that shall
appear during the contract signing.
ART. 4 Provision of the Services
4.1 The Consultant shall provide the Services with the necessary skill and care.
4.2 The Consultant shall provide and duly complete the Services in accordance with
Appendix A.
4.3 The Consultant shall not be responsible for any errors or omissions in designs or other
services performed by third parties (if any) appointed by the Employer. However, the Consultant
shall be responsible for any works, including design or other services, performed by the third
parties on behalf of the Consultant. In principle, the Consultant is solely responsible for checking
the accuracy of the information directly received from the Employer or transferred to him by
Contractor by considering the list of Services to be provided under this Agreement.
4.4 The Services do not include dealing with any actual or suspected hazard to human
health or the environment and the Consultant shall not be responsible to deal with and/or treat
it.
4.5 Prior to Contractor’s final Offer submission to the Employer, the Contractor shall submit
its own offer to the Contractor for the execution stage of the Project.
ART. 5 Obligations of the Contractor
5.1 The Contractor shall provide such access to any site or premises as is reasonably
necessary for Consultant to perform the Services, depending on the permissions to be given by
the Employer.
5.2 The Contractor shall supply the Consultant with all relevant data and information either in
its possession or, to the extent possible, in its knowledge, in order to allow Consultant to
perform the Services efficiently. In particular, the Contractor shall advise Consultant of the
actual or suspected presence of any hazard to human health or the environment. The
Consultant will be entitled to rely on the accuracy of any data and information received from the
Contractor or obtained from any generally accepted sources.
5.3 The Contractor shall attend all meetings as reasonably required by the Consultant and
shall provide any required decisions, instructions, consents or approvals and similar assistance
so as to allow the Consultant to perform the Services efficiently.
5.4 The Contractor undertakes that it shall not, both during the term of this Agreement and
for a period of one (1) year following its expiry or termination, employ or contract the services of
any person who is or was employed or engaged by the Consultant on the Services.
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ART. 6 Commencement, delay and termination
6.1 The Consultant shall start to perform the Services immediately as of the Commencement
Date even if the Agreement is duly signed by the Parties on a later date.
6.2 Either Party may terminate this Agreement immediately upon giving a 10 (ten) day
advance written notice to the other Party, if the other Party:
- fails to pay an invoice under this Agreement within 10 (ten) days after the due date;
or
- fails to perform a part of the Services within 3 days of the due date; or
- becomes subject to any bankruptcy, insolvency or analogous procedure; or
- suspends or ceases operations or becomes subject to liquidation proceedings; or
- fails to remedy a breach under this Agreement, to the reasonable satisfaction of the
Party which served notice, within 14 calendar days of a previous notice of breach
giving details of the breach.
6.3 Without resorting to termination of this Agreement, the Parties may suspend the
performance of their responsibilities in case of occurrence of any event stated in clause 6.2 in
relation to the other Party until the due performance or elimination of the reason for termination
indicated in clause 6.2 by the responsible Party.
6.4 If this Agreement is terminated earlier for any reason, it shall not affect the accrued rights or
claims of either Party under this Agreement or at law.
6.6 This Agreement shall terminate automatically upon declaration of award of the Project by
the Employer.
ART.7 Payment
7.1 The Contractor shall make the payment to the Consultant for the Services within the
term indicated in this clause, as follows:
…………………….
Payment shall be made following the Contractor’s Tender submission to the Employer, and
within 10 (ten) days following the submission by the Consultant to the Contractor of the relevant
invoice.
Should the Contractor, for any reason, fail in submitting or decide not to submit the offer,
payment shall be made within 10 (ten) days following the submission by the Consultant to the
Contractor of the relevant invoice. In this case, the Consultant shall be entitled to issue the
invoice on the official submission date of the offers, as communicated by the Contracting
Authority.
7.2 In case of delay in due payments to the consultant Engineer, the Contractor shall be
liable for delay damages of 0.01% of the due remuneration amount per day of delay, with a
maximum cap of 0,1% of the Agreement’s total amount.
7.3 The Consultant will make the necessary efforts to perform the Services on time. The
payment of the Services is based on a lump sum price and the Consultant is responsible for any
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additional hours required to complete the Services on time, and shall not claim extra or
additional payment for it.
ART. 8 Rights in Work
8.1 The Consultant shall not copy or use any document provided by the Contractor
(including the proposals of the Bidders, any technical documentation, technical specifications,
PID and other drawings, etc.) for any purposes other than the performance of his works related
with the Services under this Agreement and it shall not provide them to any third party.
ART. 9 Indemnity
9.1 The Consultant agrees to indemnify the Contractor, its officers, directors and employees,
from loss or damage for personal injury or property damage, to the extent caused by the
negligence or wilful misconduct of Consultant in the performance of the Services.
9.2 The Consultant shall not be liable under this clause to the extent that any loss was
caused by the sole negligence or wilful misconduct of the Contractor.
ART. 10 Confidentiality
10.1 Each Party shall treat all information and data delivered to it by the other Party, which is
marked confidential or which by its nature or the circumstances surrounding its disclosure
should reasonably be regarded as confidential, as confidential and proprietary. Both Parties
agree not to disclose any such information or data during or subsequent to the term of this
Agreement to any third party, other than its employees who have “need to know” for the
execution of this Agreement, to sub-contractors or sub-consultants where the disclosure is
reasonable in the context of the provision of the Services and in such a case, by observing the
provision of clause 9.3.
10.2 The Party to whom information or data has been disclosed to, shall not itself be
prevented from disclosing it, if the information or data is proved by reasonable legal means that:
- is in the public domain without breach of this Agreement;
- was developed independently by that Party;
- was so far as that Party is aware legitimately disclosed to that Party on a non-
confidential basis without any restriction on its further disclosure; or
- appears to be required by law to be disclosed, provided that Party has allowed the
Party who originally disclosed the information or data a reasonable opportunity to
challenge the apparent legal requirement for further disclosure.
10.3 Both Parties agree to ensure that its directors, officers, employees, agents,
representatives, consultants and sub-contractors will comply with the obligations of that Party in
this clause 9.
ART. 11 Limitation of liability
11.1 Despite anything to the contrary contained elsewhere in this Agreement and to the fullest
extent possible under the applicable law, the total liability of the Consultant in aggregate under
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or in connection with this Agreement, whether in contract, tort, negligence or for breach of
statute or otherwise (except for personal injury or death or fraud), shall not exceed the value of
this Agreement.
11.2 Except from its indemnity obligation stated in Clause 8 herein, in no event shall
Consultant be liable to the Contractor in contract law or tort for any kind of consequential,
special and indirect damages, such as loss of actual or anticipated profits, loss of contracts, loss
of good reputation and etc.
ART. 12 Disputes
12.1 Any dispute connected with or arising out of this Agreement that cannot be resolved by
the Parties amicably within 45 (forty five) days of notification of such dispute shall be finally
settled by the ………….. competent courts.
ART. 13 Force Majeure
13.1 The exceptional events or circumstances (i) which are beyond the Parties’ control, (ii)
which Parties could not reasonably have foreseen or could not reasonably have avoided and (iii)
which prevent the relevant Party from fulfilling its obligations under this Agreement such as war,
hostilities, invasion, act of foreign enemies, mobilization, insurrection, terrorism acts, revolution,
military or usurped power, civil war, riot, natural catastrophes (including without limitation
earthquake, typhoon, volcanic activity and other severe weather conditions), and explosive
materials and ionizing radiation and strikes which may delay the completion of the Services are
defined as “Force Majeure” under this Agreement.
13.2 If the Consultant is prevented from performing its obligations under the Agreement by
Force Majeure event or suffers delay by reason of Force Majeure event, it shall not be
responsible for such delay and shall be entitled to an extension of time for any such delay,
taking the duration of the Force Majeure event into account, provided that the Contractor may
be granted an extension of time by the Employer of the Project for the same reason. The
following conditions shall apply for such cases: (i) The Force Majeure event should not have
been caused by a fault on part of the Consultant; (ii) the Consultant should have established
that such Force Majeure event prevented the Consultant from fulfilling its obligations and
Consultant have used its power and exerted its reasonable efforts to avoid the Force Majeure
event, but it has failed to do so; (iii) Consultant should have served a notice to the Contractor
within 7 (seven) days from the date of occurrence of Force Majeure event; and (iv) such Force
Majeure event should have been supported with documents obtained from official authorities or
an appropriate expert. However, and for the avoidance of doubt, Consultant shall not make any
claims before the Contractor for any increase in the Agreement Price, damages or any other
rights.
13.3 If the execution of the Agreement or delivery of the Services is prevented for a continuous
period of 1 (one) month by reason of Force Majeure event, then either Party may terminate this
Agreement or a portion effected thereof. In such case, the Parties shall not make any claims
against each other for any loss, damage or loss of profit.
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ART. 14 Miscellaneous
14.1 Business practices. Each Party to this Agreement, agrees not to pay, promise to pay, or
authorise the payment of any money or anything of value, directly or indirectly, to any person
(whether a government official or private individual) for the purposes of illegally or improperly
inducing anyone to take action favourable to any Party in connection with the Services. Each Party
agrees that it will require that any agent or representative of the Party hired to represent such Party
in connection with the Services will comply with this clause 13.1 and all laws which apply to
activities and obligations of the Parties under this Agreement, including but not limited to those
laws and obligations dealing with improper payments as described above. Each Party may, from
time to time, request and receive written confirmation of the other’s on-going compliance with this
obligation. The requirements of this clause 13.1 do not, however, prohibit normal and customary
business entertainment or the giving of business mementos of nominal value.
14.2 Governing law. This Agreement shall be construed under and governed by the laws of
………………..
14.3 Notices. Any notice or communication required or permitted by this Agreement shall be
made in writing and in English, and shall be delivered either personally or as registered or
certified mail, postage prepaid, or overnight currier services and sent to the address of the
relevant Party as set out in this Agreement. Notices may be sent by fax or e-mail, provided that
the original of it is also dispatched via registered or certified mail or overnight currier services.
Notices delivered personally or sent by fax or e-mail shall be effective immediately if sent on a
business day prior to 5 pm local time of the recipient. All other notices shall be effective at the
expiration of seven (7) business days after envelope containing the same shall have been put
into the post.
If to the Contractor: If to the Consultant:
Attn. : Attn. :
Address : Address:
Phone : Phone :
Fax : Fax :
e-mail : e-mail :
14.4 Assignment/Amendment. Neither Party shall assign or transfer this Agreement or any
rights under this Agreement without the prior written consent of the other Party, which consent
shall not be unreasonably withheld or delayed. Any amendment to be made to this Agreement
shall require written consent of the Parties.
14.5 Binding effect. The provisions of this Agreement shall bind and inure to the benefit of
the Parties and their respective successors and permitted assigns.
14.6 Third party rights. Nothing in this Agreement, expressed or implied, is intended to confer
on any person or entity other than the Parties any right or remedy under or by reason of this
Agreement.
14.7 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute a single agreement.
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14.8 Waiver. No waiver by either Party of a breach of this Agreement or failure to seek a
remedy for it shall be construed as a waiver of any subsequent or different breach.
14.9 Agreement in separate parts. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions, and this Agreement shall be
construed in all respects as if any invalid or unenforceable provision were omitted.
14.10 Entire agreement. This Agreement embodies the entire agreement and understanding
between the Parties relating to its subject matter and supersedes all prior agreements,
understandings, negotiations, representations and discussions of the Parties relating to that
subject matter.
14.11 Headings. The headings appearing in this Agreement have been inserted as a matter of
convenience and shall not affect the meaning or interpretation of this Agreement.
14.12 Independent parties. Nothing in this Agreement is intended or shall be construed to
establish or create an agency, partnership or joint venture relationship between the Parties.
14.13 This Agreement is signed in two original counter-parts and each Party shall keep one
original copy.
[CONTRACTOR] [CONSULTANT]
Signature Signature
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