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BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI
CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
42/2018/TB-LPQT
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Hà Nội, ngày 09
tháng 10 năm 2018
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THÔNG BÁO
VỀ
VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại Điều 56 của Luật Điều ước quốc
tế năm 2016, Bộ Ngoại giao trân trọng thông báo:
Bản ghi nhớ cho Dự án "Tăng cường hệ
thống dự báo và cảnh báo lũ lụt ở Việt Nam - giai đoạn 2" giữa Chính phủ
nước Cộng hòa xã hội chủ nghĩa Việt Nam và Chính phủ nước Cộng hòa I-ta-li-a, ký
tại Hà Nội, ngày 14 tháng 10 năm 2016, có hiệu lực đối với Việt Nam từ ngày 24
tháng 02 năm 2017.
Bộ Ngoại giao trân trọng gửi bản sao Bản ghi nhớ
theo quy định tại Điều 59 của Luật nêu trên./.
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TL. BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG
Lê Hải Triều
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MEMORANDUM OF UNDERSTANDING
Between
THE GOVERNMENT OF
THE SOCIALIST REPUBLIC OF VIETNAM
and
THE GOVERNMENT OF
THE ITALIAN REPUBLIC
On
the concession of a soft loan for the
“IMPROVING THE FLOOD FORECASTING AND WARNING SYSTEM IN
VIET NAM - SECOND PHASE” PROJECT
The Government of the Socialist Republic of Viet
Nam, represented by the Ministry of Planning and Investment (MPI), and the
Government of the Italian Republic, represented by the Ministry of Foreign
Affairs and International Cooperation, General Directorate for Development
Co-operation (MAECI-DGCS), hereinafter referred to as the “Parties'', have
decided to enter into this Memorandum of Understanding, hereinafter referred to
as the “MoU”, for the implementation of the “Improving the flood forecasting
and warning system in Viet Nam - Second phase” project, hereinafter referred to
as the “Project”.
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REMINDING
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The Agreement on Development Cooperation signed
in Milan on 12th December 2009 where a provision, from the
Government of the Italian Republic (hereinafter referred to as
"GoI") to the Government of Socialist Republic of Viet Nam
(hereinafter referred to as "GoV"), of soft loans up to the amount
of 30 million Euro has been programmed for the period 2009 - 2012;
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FOLLOWING
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the request of the Government of Socialist
Republic of Viet Nam (hereinafter referred to as "GoV"), dated May
08, 2013, to the Government of the Italian Republic (hereinafter referred to
as “GoI”) to finance the Project, through a soft loan of Euro 4.000.000;
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WHEREAS
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based on the Project Detailed Outline (PDO)
prepared by the Viet Nam’s National Hydro Meteorological Service (NHMS),
MAECI-DGCS carried out an appraisal missions in Viet Nam in October 2013,
aiming to support the Vietnamese side in the project formulation which
resulted in the preparation of a Project Implementation Document (PID).
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WHEREAS
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based on the PID, a Project Feasibility Study
Report was prepared by NHMS and approved by the Vietnamese Ministry of
Natural Resources and Environment (MONRE);
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WHEREAS
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the Steering Committee of MAECI-DGCS, on March
24th 2015, has decided to provide a soft loan of Euro 4.000.000 to finance
works and services related to the proposed Project;
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CONSIDERING
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that, in accordance with the new regulation on
using ODA, the GoV already decentralised responsibilities for the
implementation of the Project to the NHMS and its Project Management Unit
(PMU);
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The Parties
hereby agree to implement the Project according to the following:
ARTICLE
1
Parts
and Definitions
1.1. This MoU consists of 15 articles and of an
annex (Annex 1 - “Eligibility Criteria, Ethical Clauses, Contract General Principles”),
which form an integral, essential and substantial part of the MoU.
1.2. The words and acronyms mentioned below have
the following meaning:
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Project
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The Project of Improving the flood forecasting
and warning system in Viet Nam - Second phase
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GoV
GoI
MAECI-DGCS
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Government of the Socialist Republic of Viet Nam
Government of the Italian Republic
General Directorate for Development Co-operation
of the Italian Ministry of Foreign Affairs and International Cooperation
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MPI
MOF
MONRE
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Vietnamese Ministry of Planning and Investment
Vietnamese Ministry of Finance (The Borrower)
Vietnamese Ministry of Natural Resources and
Environment
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NHMS
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National Hydro Meteorological Service of the
Socialist Republic of Viet Nam
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Cassa Depositi e Prestiti
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The Italian Bank appointed by the GoI to manage
the soft loan credit lines (The Lender)
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Financial Convention
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Loan Agreement signed by Cassa Depositi e
Prestiti and the local Authority appointed by the GoV that defines the soft
loan terms and conditions and the modality of disbursement and repayment;
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PMU
AICS
AICS Hanoi
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Project Management Unit of the NHMS
Italian Agency for Development Cooperation
Office in Hanoi of the Italian Agency for
Development Cooperation
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VAT
IFI
JSC
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Value Added Tax
Italian Financing Institution
Joint Steering Committee
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ARTICLE
2
Purpose
of the MoU
2.1. This MoU is aimed at establishing the mutual
obligations of the Parties concerning the financing and implementation of the
Project, defining modalities and procedures for crediting and disbursement of
funds as well as for Project monitoring, control and reporting.
2.2. No party other than the Parties in this MoU
will be allowed to derive any rights from this MoU or have claim to the funds
involved.
2.3. After the signature of this MoU, the NHMS of
MONRE and the MAECI-DGCS shall enter into a Technical Agreement, based on the
adopted PID, in order to regulate in detail the technical aspects of the
Project.
ARTICLE
3
Project
Objectives and Expected Results
3.1. The Overall objectives of the Project are: (i)
Upgrading and modernizing the flood forecasting and warning system in Viet Nam;
(ii) bring the forecasting task of the Hydro- Meteorological sector to catch up
with the region and the world level.
3.2. The Specific Objective of the Project, to
improve the capacity of flood forecasting and warning system in responding to
climate-change situations in the South Central Regions of Viet Nam.
3.3. The main expected results of the Project, the
detailed project cost estimate and financing have been adopted by MONRE and are
described in the PID.
ARTICLE
4
Project
Costs and Financing
The Project cost is estimated at € 4,000,000 to be financed
through the Soft Loan and VND 66,739,417,000 will be financed through
Vietnamese counterpart funds.
ARTICLE
5
Institutions
and Bodies involved in the Implementation of the MoU
5.1. The main Institutions and Bodies involved in
the implementation of the Project are:
5.1.1. For the Vietnamese side:
• MPI (State Management Agency of ODA) acting as
the institutional Vietnamese Counterpart for this MoU, representing the GoV;
• MoF, acting as the Borrower for the Financial
Agreement to be signed with the Italian Financing Institution:
• MONRE acting as the Line Agency of the Project;
• NHMS acting as the executing Agency, assigned by
MONRE, through its PMU, for the negotiation, awarding and implementation of the
contracts.
5.1.2. For the Italian side:
• MAECI-DGCS, acting as the Italian Counterpart for
this MoU, representing the GoI;
• Cassa Depositi e Prestiti, the Italian Financing
Institution (IFI) signatory of the Financial Agreement (FA) with MoF, which
will provide and manage the Soft Loan (including disbursements and repayments);
• The Italian Agency for Development Cooperation
(AICS), the Italian institution responsible for project implementation,
management, technical assistance and monitoring under the provisions of this
MOU by the Italian side.
• Office in Hanoi of the Italian Agency for
Development Cooperation (AICS Hanoi, acting as part of the AICS project
assistance and monitoring system.
5.2. The Parties will take all necessary measures
to ensure that such institutions and bodies will fulfil the obligations of this
MoU.
ARTICLE
6
Governance
and Management of the Project
6.1 A Joint Steering Committee (JSC) shall be
constituted as a high-level consultative and decision making body for the
Project and composed by:
• representatives of MONRE, MPI and MOF for
Vietnamese side.
• representatives of the Italian Embassy and of
AICS for the Italian side.
The JSC has the main task and responsibility to
supervise the Program’s activities smooth progress and provide orientation on
its implementation. Concrete task and responsibilities taken by the JSC are
detailed into the PID. The JSC is chaired by the leader of MONRE. All JSC
decisions shall be taken unanimously
6.2. A Project Management Unit (PMU) will be
established pursuant to Vietnamese laws on ODA utilization and management to
assist the NHMS in implementing and monitoring the Project activities.
In addition to the tasks and powers assigned to the
PMU according to the Vietnamese laws, PMU shall coordinate with AICS Hanoi in
order to complete the necessary procedures for implementation of the Italian
ODA project regulated in this MOU.
6.3. The AICS might designate, on request of the
JSC, Italian Experts to provide specific technical support to the PMU for the
Project activities. In this case, the Italian side shall finance the costs
relevant to the assignment of the Italian Experts.
ARTICLE
7
Terms,
Utilization and Conditions of the Italian Financing
7.1. The Italian contribution to the financing of
the Project will consist of the Soft Loan mentioned at Article 4 of this MoU
and this amount of the Soft Loan is considered the maximum amount of
contribution by the GoI to the Project. The Soft Loan will be used only to
cover the costs of the items indicated in details in PID. Should the total
costs of the Items proposed to be covered by the Soft Loan exceed the Soft Loan
amount, the additional costs will be covered by the Vietnamese side. Should the
total costs of these items be less than the Soft Loan amount, the same amount
will be reduced accordingly.
7.2. The Soft Loan will be denominated in Euro. The
Soft Loan will be provided at a concessionality level of 50 (fifty) %. The
financial conditions corresponding to above mentioned level of concessionality
are the following: interest rate: 0%. Soft loan duration: 30 years of which 20
years of grace period. These final financial conditions will be re-determined
at the time of signing of the Financial Agreement (FA) between Cassa Depositi e
Prestiti and the Vietnamese Ministry of Finance (MOF).
7.3. After the entry into force of this MoU, MOF
and Cassa Depositi e Prestiti (IFI) will enter into a Financial Agreement (FA)
relating to the whole amount to be financed under the Italian Soft Loan for the
goods, services and works of the Project. The FA will provide the legal
framework between the Lender and the Borrower and will include the provisions
of the present MoU specifying the procedures for the actual disbursement and
repayment. The IFI will credit the funds to the contractors, as by the Borrower
request, after the control of the administrative documentation (contracts,
invoices, shipping documents, certificates of acceptance, etc.).
7.4. The Soft Loan shall be used only for
purchasing goods, services and works related to the Project. A quota of, at
least, 70 (seventy) per cent of the total Soft Loan amount must be used to
purchase goods and/or services and/or works of Italian origin. The remaining
quota - no more than 30 (thirty) per cent of the total Soft Loan amount - can
be used to purchase goods and/or services and/or works of Vietnamese and/or of
third Country origin, provided that such third Country of origin is a member of
the Organisation for Economic Development and Co-operation (OEDC).
7.5. No portion of the Soft Loan shall be used to
finance any Vietnamese tax and custom duty. Taxes levied on income and capital
shall be in conformity with regulations provided by the relevant agreement
between the Government of the Socialist Republic of Viet Nam and the Government
of the Italian Republic for the avoidance of double taxation and prevention of
tax evasion.
Goods and services for the Project shall be taxed
in accordance with the Vietnamese law.
ARTICLE
8
Procurement
procedures to be used
8.1. All procurement procedures under this MoU will
be conducted under the responsibility of the MONRE authorities.
8.2. The procurements using totally or partly the
Soft Loan shall be carried out through the competitive bidding procedures. The
procedures to be adopted are those of the Vietnamese Law on Tendering complemented
by the fundamental principles of Italian law on procurement and development aid
as described in the Annex 1 to this MoU. The prescription of this MoU and Annex
1 will prevail upon the prescriptions of the Vietnamese law.
8.3. The bidding documents shall be submitted by
the PMU to AICS for “no-objection” before the publication of the bid notice.
The PMU for the tender relevant to items using the Soft Loan, will submit to
AICS a bid evaluation report, along with the draft contract to be signed with
the selected contractor in order to obtain the “no-objection” by AICS before
the final signature.
ARTICLE
9
Project
Monitoring and Evaluation
9.1. AICS reserves the right to supervise and
monitor, in general, the smooth implementation of the Project and the transparent,
effective and efficient use of the funds provided by Italy. The supervising and
monitoring activities of AICS can be carried out through its own staff, hired
consultant's missions, or through personnel of the AICS Hanoi. Monitoring
activities may also be initiated by MPI.
9.2. Financial control is assigned to Cassa
Depositi e Prestiti.
9.3. In order to allow the AICS to monitor project
activities, the MONRE will ensure, upon receipt of AICS’ prior written notice,
that AICS personnel has access to the Projects areas and to the Project
technical documentation; the MONRE will also report to AICS, at least
quarterly, on the progress of the Project implementation and will retain
records of all documentation, including the related correspondence and reports,
for 10 (ten) years after the completion of the Project.
ARTICLE
10
Obligations of GoI
GoI commits to:
10.1. Provide, at the conditions stipulated in this
MoU, the financial resources indicated at the previous Article 4, also by
giving the necessary instructions to the IFI to finalize, together with the
MOF, the FA.
10.2. Make all efforts for the success of the
Project and for the achievement of its objectives.
10.3. Cause that all its bodies, involved in
Project implementation, will make all efforts for the success of the Project
and for the achievement of its objectives.
10.4. Fulfill, and cause all Italian bodies
involved in the Project to fulfill, all the obligations generating from this
MoU.
10.5. Designate the JSC Italian members, as soon as
this MoU becomes effective.
ARTICLE
11
Obligations of the GOV
GoV commits to:
11.1. Provide fully and timely the financial
resources indicated at the previous Articles 4;
11.2. Make all efforts for the success of the
Project and for the achievement of its objectives.
11.3. Cause that all the Vietnamese institutions
involved in Project implementation will make all efforts for the success of the
Project and for the achievement of its objectives.
11.4. Fulfil, and cause all Vietnamese institutions
involved in the Project to fulfil, all the obligations generating from this
MoU.
11.5. Ensure the implementing agency and project
owner to be responsible for the use of the Soft Loan proceeds, for the
management of contracts and for the supervision of the activities;
11.6 Ensure the implementing agency and project
owner to carry out all the procurement procedures for the implementation of the
Project;
11.7. Ensure that all Vietnamese indirect taxes,
including VAT and excluding income taxes resulting from the contracts to be
financed out of the Soft Loan proceeds, will not be covered by the Italian Soft
Loan;
11.8. Shall concede the immediate customs clearance
of goods, materials and supplies needed for the implementation of the Project
and shall concede the right of registration to the vehicles acquired within the
Project in accordance with Vietnamese laws;
11.9. Shall ensure some privileges and exemption
including visa and customs procedures for foreign experts and their family in
accordance with Vietnamese laws on foreign experts implementing ODA programs
and projects in Viet Nam;
11.10. Provide contributions (in terms of human
resources, financial resources, etc.) for any additional activity that will be
jointly recognized as necessary for the smooth implementation and for the
sustainability of the Project ;
11.11. Designate the JSC Vietnamese members, the PD
and the Vietnamese staff of the PMU, as soon as this MoU becomes effective;
11.12. Retain records of all Project documentation,
including the related correspondence and reports, for 10 (ten) years after the
completion of the Project.
ARTICLE
12
Impediments and Force Majeure
12.1. In case of impediments to implement the
present MoU due to case of force majeure such as war, flood, fire, typhoon,
earthquake, labour conflicts and strikes, acts of any government, unexpected
transportation difficulties and other causes which will be recognised by both
Parties upon agreement as force majeure according to practice or in case of
peril or unsafe conditions for the expatriate personnel, the following
provisions shall apply:
a) in case that the duration of the impediment to
the implementation of the Project is less than six months, the use of the funds
shall be suspended until the AICS authorises resumption of activities;
b) in case the duration of the impediment to the
implementation of the Project is greater than six months and less than
twenty-four, the Project shall be suspended and the residual funds, reduced by
the amount needed to finance the activities specified at the following Article
12.2., shall be maintained until the impediment ends and the AICS authorises
resumption of the Project activities.
c) In case the impediment to the implementation of
the Project is greater than twenty - four months, the Parties shall discuss
about the continuation of the Project and define an agreed course of actions.
In case that the continuation of the Project is not feasible, the Parties shall
agree on the destination of the residual funds deducted the amount needed to
finance the activities specified in the following Article 12.2.
12.2. The activities of the Project not affected by
the impediments and causes of force majeure shall be continued until completion
and the necessary funds shall be allocated.
ARTICLE
13
Settlement of Disputes and Amendments to the MoU
13.1. The Parties shall settle amicably any
dispute, which may arise in the course of Project implementation and/or arising
out of the implementation of this MoU, by consultations and negotiations
between the Parties through diplomatic channels.
13.2. The Parties may modify this MoU at any time,
provided that any modification should be set out into writing and agreed by the
Parties.
ARTICLE
14
Termination of the MoU
14.1. The Parties reserve the right to terminate
the MoU in case of failure of the Project to reach its objectives, in case of
severe faults in the use of funds, in case of impediment or force majeure
pursuant to Article 12.
14.2. In case of severe fault, MAECI-DGCS shall
notify the event in writing to MPI, inviting it to take suitable measures to
fix the consequences of the fault within maximum sixty days from the date of
the notification. This time limit expired, MAECI-DGCS reserves the right to
terminate the MoU, notifying MPI through a Verbal Note at least three months in
advance.
14.3. In case of termination of MoU, the
contract(s) signed between PMU and the contractor(s) financed shall be
determined adopting the Force Majeure clause and shall be liquidated in
accordance to terms and conditions of these contracts for such case.
14.4. MPI reserves the right on continuation of the
Project by its own resources and MOF will refund in a single payment the entire
contractual amount disbursed in advance (if any) and not spent yet. MAECI-DGCS
retains an adequate credit amount to be paid to contractor for its work
completed up to the date of termination.
ARTICLE
15
Entry into Force and Duration
15.1. This MoU shall come into force on the date of
receipt of the last of the two notifications by which the Parties shall inform
each other about the completion of their respective domestic procedures
necessary for the entry into force of this MoU.
15.2 This MOU shall have the same duration of the
Soft Loan.
15.3. The provisions of this MoU will be
implemented in accordance with the national legislation of the Parties and in
conformity with their international obligations and, with regard to Italy, the
obligations arising from its membership to the European Union”.
In witness thereof the undersigned, duly authorized
by their respective Governments, have signed the present MoU.
Done in Ha Noi on the 14th of October,
2016 in two originals in the English language.
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For the Government
of the Socialist Republic of Viet Nam
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For the Government
of the Italian Republic
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ANNEX 1
ELIGIBILITY CRITERIA, ETHICAL CLAUSES, CONTRACT GENERAL
PRINCIPLES
This Annex harmonizes the rules applicable to procurement
pursuant to this Memorandum of Understanding with the fundamental principles of
Italian law on procurement and development aid.
The content that was not regulated in this Annex
shall be implemented in accordance with the Vietnamese Law on Public
Procurement.
1.
CONTRACTOR ELIGIBILITY
1.1. THE RULE ON OBJECTIVITY AND IMPARTIALITY
To avoid any conflict of interest, any natural or
legal person, including entities within the same legal group, members of
consortia, temporary associations, and sub-contractors, involved in the
preparation of the Project shall be excluded from participating in tenders or
from submitting offers aimed at the implementation of the Project.
1.2 THE RULE ON ECONOMIC, FINANCIAL, PROFESSIONAL,
AND TECHNICAL CAPACITY
The candidates/bidders must prove that their
economic, financial, professional and technical capacity is suitable for the
implementation of the contract. Unless otherwise established in the Agreement,
the candidates/bidders must prove:
1.2.1. Economic and financial standing: the total
turnover of the candidates/bidders in the last three years in the same field of
the bid must be at least equivalent to the maximum budget of the contract;
enterprises that have been established for less than three years may prove
their economic and financial standing with any document which the contracting
authority may deem appropriate.
1.2.2. Professional and technical capacity:
candidates/bidders shall provide a full record of the activities performed
during the last three years; enterprises that have been established for less
than three years may prove their professional and technical capacity with any
document which the contracting authority may deem appropriate.
1.2.3. Italian enterprises shall qualify for works
contracts pursuant to decree of the President of the Republic n. 34/2000 (and
further modifications/amendments thereof). Non-Italian enterprises shall
qualify according to their respective national law.
1.3. GROUND FOR EXCLUSION FOR PARTICIPATION IN
CONTRACTS
Natural or legal persons are not entitled to
participate in competitive tendering or be awarded contracts if:
1.3.1. They are in the conditions as referred to in
the Italian Legislative Decree 8.8.1994, n. 490 ("Antimafia). Italian
tenderers/offereres must provide the evidence thereof by the “certificato
antimafia”. issued by the competent Italian authorities. Non-Italian
tenderers/offerers must provide equivalent certificates, if issuable under
their respective national law.
1.3.2. They are bankrupt, or being wound up, or are
having their affairs administered by the courts, or have entered into an
arrangement with creditors, or have suspended their business activities, or are
in any analogous situation arising from a similar procedure provided for in
national legislation or regulations.
1.3.3. They are the subject of proceedings for a
declaration of bankruptcy, for winding-up, for administration by the courts,
for an arrangement with creditors or for any similar procedure provided for in
national legislation or regulations.
1.3.4. They or their directors or partners have
been convicted of an offence concerning professional conduct by a judgement
which has the force of res judicata.
1.3.5. They are guilty of grave professional
misconduct proven by any means which the contracting authority can justify.
1.3.6. They have not fulfilled obligations related
to the payment of social security contributions in accordance with the legal
provisions of the country where they are established.
1.3.7 They have not fulfilled obligations related
to the payment of taxes in accordance with the legal provisions of the country
where they are established.
1.3.8. They are guilty of serious misrepresentation
in supplying the information required by the AICS as a condition of
participation in a tender procedure or contract.
1.3.9. They have been declared to be in serious
breach of contract for failure to comply with obligations in connection with
another contract with AICS or another contract financed with Italian funds.
2.
CONTRACT GENERAL PRINCIPLES
2.1. Contract award and execution shall assure
proper quality of performance, and respect the principles of economical
convenience, efficiency, timeliness, and fairness. Contract award must also
abide by the principles of free competition, equal treatment,
non-discrimination, transparency, proportionality, and, whenever possible,
publicity.
2.2. Upon prior agreement of the parties,
economical convenience may be counterbalanced by social fairness, protection of
public health, conservation of environment, and promotion of sustainable
development.
2.3. Award procedures shall be cancelled if there
are fewer than three eligible candidates/bidders. In presence of adequately
motivated technical reasons, even less than three eligible offers may be
accepted, shall the fundamental principles mentioned in the introduction be
respected.
2.4. Contracts may not be modified, unless the
modification is approved by AICS pursuant to following clauses. Contractors are
not entitled to any payment or reimbursement whatsoever for activities carried
out without prior authorization. If AICS or the contracting authority so
requires, contractors may be forced to restore, at their own expenses, the
original state before the unauthorized modification.
2.5. Bidding documents shall specify the financial
resources available for the contract to be awarded.
2.6. Modifications of supply and service contracts
may be allowed and shall be effective only upon AICS prior authorization, which
may only be granted in the following cases:
2.6.1) modifications of applicable laws and
regulations;
2.6.2) unforeseen and unforeseeable circumstances,
including the implementation of new materials, components or technology not
existing when the award procedure was commenced, provided that the
modifications ameliorate the quality of the performance, without increasing the
contract total amount;
2.6.3) events related to the nature or the quality
of the goods or places where the contract activities take place, which occur
during the contract execution and were unforeseeable when the contract was
made:
2.6.4) unless otherwise provided, the
above-mentioned modifications may not increase or reduce the total contract
amount beyond 20%, provided that the funding is available. In case the above-
mentioned modifications will make the project total cost1 exceed the approved total estimated investment cost2, they also have to be approved by the relevant
Vietnamese Authorities;
2.6.5) modifications, which, in the interest of the
contracting authority, increase or reduce the total contract amount necessary
to improve the quality and performance of the project are allowed up to 5%,
provided that the funding is available and no substantial modification is made;
the modifications shall be only due to objective reasons, unforeseeable when
the contract was made;
2.6.6) contractors may not refuse the
above-mentioned modifications; such modifications shall be executed at the same
contractual conditions;
2.6.7) contractors shall execute any
non-substantial modification that the contracting authority may see fit,
provided that the nature of the activity is not fundamentally altered and no
additional costs are imposed.
2.7 Modifications of works contracts shall be
effective only upon AICS prior authorization, which may only be granted in the
following cases:
2.7.1) modifications of applicable laws and
regulations;
2.7.2) unforeseen and unforeseeable circumstances,
including the implementation of new materials, components or technology not
existing when the project was made, provided that the modifications ameliorate
the quality of the performance, without altering the initial project and
without increasing the contract total amount;
2.7.3) events related to the specific nature of the
contract activities which occur during the contract execution;
2.7.4) geological problems not predictable in the
executive project;
2.7.5) errors or omissions of the final project
design which prevent the contract implementation; in this case, the engineering
consultants are responsible for the damages; the contractor may not refuse to
perform such modifications if their value do not exceed 20% of the total
contract amount, provided that the funding is available. In case the
above-mentioned modifications will make the project total cost exceed the
approved total estimated investment cost, they also have to be approved by the
relevant Vietnamese authorities;
2.7.6) modifications, which increase or reduce the
total contract amount, necessary to improve the quality and performance of the
project are allowed up to 5%, provided that the funding is available.
2.8. Contracts may not be assigned to a third
party. In case of assignment, the contract shall be automatically terminated.
2.9. Subcontract is allowed up to an amount of 30%
of the total contract amount. The bidding documents must specify if subcontract
is allowed and the conditions thereof. Upon submitting their bids, bidders must
declare which supplies/services/works they intend to subcontract. Contractors
must deposit subcontracts with the contracting authority at least 20 days
before commencing the execution of the subcontracts. Subcontractors must be
eligible for the supplies/services/works they are assigned.
2.10. Contractual unit-prices shall be firm, fixed,
and non-revisable.
2.11. Exchange rate risk or variations may not be
subject to compensation whatsoever.
2.12. The contract shall be automatically
terminated if the contractors are subject to proceedings for declaration of
bankruptcy, for winding-up, for administration by the courts, for an
arrangement with creditors or for any similar procedure provided for in
national legislation or regulations.
2.13. In case of malice or grave negligence,
contractors’ liability may not be limited.
2.14. Contract execution shall be governed by the
law of the beneficiary state.
2.15. Disputes arising between the contractors and
the contracting authority shall not be submitted to the jurisdiction of the
Italian courts.
2.16. Bidding documents shall include the
above-mentioned principles.
2.17. The Italian party reserves the right to apply
the fundamental principles of Italian law, should any legal gap arise.
3.
ELIGIBLE AND INELIGIBLE COSTS
3.1. The costs included in the contract(s) shall be
eligible if they are actual, economic, and necessary for carrying out the
Project pursuant to Project document.
3.2. In any case, the following items shall not be
considered eligible:
a) voluptuary or luxury goods (e.g. perfumes,
cosmetics, art objects, spirits, sports goods, etc.);
b) goods, services and civil works directly or
indirectly connected to police or military activities;
c) non-income / non-profit taxes (including VAT)
and import duties;
d) provisions for outstanding debts and future
losses of the beneficiary or the final users;
e) interests owed by the beneficiary or the final
users to any third party.
4.
ETHICAL CLAUSES
4.1. Any attempt by candidates or bidders to obtain
confidential information, enter into unlawful agreements with competitors or
influence the contracting authority during the process of examining,
clarifying, evaluating, and comparing tenders will lead to the rejection of his
candidacy or tender and may result in administrative penalties;
4.2. Without the contracting authority’s prior
written authorisation, contractors and their staff or any other company with
which the contractor is associated or linked may not, even on an ancillary or
subcontracting basis, supply other services, carry out works or supply
equipment for the Project. This prohibition also applies to any other Projects
that could, owing to the nature of the contract, give rise to a conflict of
interest on the part of the contractors.
4.3. When putting forward their candidacy or
participating in a tender, candidates or bidders must declare that they are
affected by no potential conflict of interest, and that they have no particular
link with other bidders or parties involved in the Project. Should such a
situation arise during the performance of the contract, the contractors must
immediately inform the contracting authority.
4.4. Civil servants or other officials of the
public administration of the beneficiary country, regardless of their administrative
situation, must not be engaged as experts by the tenderers unless the prior
approval of the AICS has been obtained.
4.5. Contractors must at all times act impartially
and as a faithful adviser in accordance with the code of conduct of their
profession. They must refrain from making public statements about the Project
or services without the contracting authority's prior approval. They may not
commit the contracting authority in any way without its prior written consent.
4.6. For the duration of the contract, contractors
and their staff must respect human rights and undertake not to offend the
political, cultural and religious mores of the beneficiary state. In
particular, tenderes who have been awarded contracts shall respect core labour
standards as defined in the relevant International Labour Organisation
conventions (such as the conventions on freedom of association and collective
bargaining; elimination of forced and compulsory labour; elimination of
discrimination in respect of employment and occupation; abolition of child
labour).
4.7. The contractors may accept no payment
connected with the contract other than that provided for therein. The
contractors and their staff must not exercise any activity or receive any
advantage inconsistent with their obligations to the contracting authority.
4.8. The contractor and their staff are obliged to
maintain professional secrecy for the entire duration of the contract and after
its completion. All reports and documents drawn up or received by the
contractor are confidential.
4.9. The contract shall govern the contracting
parties' use of all reports and documents drawn up, received or presented by
them during the execution of the contract.
4.10. The contractors shall refrain from any
relationship likely to compromise their independence or that of their staff. If
contractors cease to be independent, the contracting authority may, regardless
of injury, terminate the contract without further notice and without the
supplier having any claim to compensation.
4.11. MAECI-DGCS reserves the right to suspend or
cancel Project financing if corrupt practices of any kind are discovered at any
stage of the award process and if the contracting authority fails to take all
appropriate measures to remedy the situation. For the purposes of this
provision, "corrupt practices" are the offer of a bribe, gift,
gratuity or commission to any person as an inducement or reward for performing
or refraining from any act relating to the award of a contract or
implementation of a contract already concluded with the contracting authority.
4.12. More specifically, all tender dossiers and
contracts for works, supplies and services must include a clause stipulating
that tenders will be rejected or contracts terminated if it emerges that the
award or execution of a contract has given rise to unusual commercial expenses.
Such unusual commercial expenses are commissions not mentioned in the main
contract or not stemming from a properly concluded contract referring to the
main contract, commissions not paid in return for any actual and legitimate
service, commissions remitted to a tax haven, commissions paid to a recipient
who is not clearly identified or commissions paid to a company which has every
appearance of being a front company.
4.13. Contractors undertake to supply AICS on
request with supporting evidence regarding the conditions in which the contract
is being executed. AICS may carry out whatever documentary or on-the-spot
checks it deems necessary to find evidence in cases of suspected unusual
commercial expenses.
4.14. Contractors found to have paid unusual
commercial expenses on Projects funded by AlCS are liable, depending on the
seriousness of the facts observed, to have their contracts terminated or to be
permanently excluded from receiving AICS funds.
4.15. Failure to comply with one or more of the
ethics clauses may result in the exclusion of the candidate, bidder or
contractor from other AICS contracts and in penalties. The individual or
company in question must be informed of the fact in writing.
4.16. It is the obligation of the contracting
authority to ensure that the procurement procedure is concluded in a
transparent manner, based on objective criteria and disregarding any possible
external influences.