Dear Sir or Madam,
Thank you for your question submitted in the context of the current FEED tender procedure.
Question 1)
Is it necessary for Contractor / Bidder to decide now in phase 1, whether to form a Consortium or Subcontract agreement between Contractor and his potential Subcontractor or Consortium Partner?
Answer 1)
Yes. In Phase 1, the Candidate must clearly decide on and disclose the intended role of each participating entity. If the application is submitted by a candidate consortium, Form I must be completed. Subcontractors and/or entities whose capacities are relied upon as a suitability lending on the basis of economic and financial aspects or on the basis of technical and/or professional aspects must be identified in Form IX, and Form X and/or Form XI must be submitted where applicable. A candidate consortium may also engage subcontractors; therefore, these structures are not mutually exclusive. The procurement documents do not require the submission of a separate fully executed consortium agreement or subcontract agreement in Phase 1. However, all declarations, commitment forms and supporting documents required for the respective participation structure must be duly submitted.
Question 2)
What is required to do, in case the Form is not applicable? e.g. Form 1. Simply not to submit it or submit saying not applicable and sign it?
Answer 2)
A form expressly marked “if applicable”, “if relevant” or “non-applicable” does not have to be submitted where it is not applicable to the Candidate’s actual participation structure. It is not necessary to submit or sign such a form merely stating “not applicable”.
However, the tenderer may indicate in the "expression of interest” which statements do not apply to its tenderer structure and are therefore deliberately not submitted by it in order to enhance transparency. All prescribed forms, as well as all forms applicable to the tenderer, the consortium members, the named subcontractors and/or the entities on whose capacity reliance is placed, must be submitted as required.
Question 3)
In case Contractor / Bidder qualifies for the Phase 2 - FEED Phase, is he allowed or can he/she take those Subcontractors, who are qualified from other competitors / bidders?
Answer 3)
The procurement documents do not provide for exclusivity of subcontractors or entities whose capacities are relied upon. The fact that an entity has also been named by another Candidate does not, in itself, prevent its nomination by another Candidate.
But suitability is assessed separately for each Candidate. Documents or commitments submitted in another Candidate’s application cannot be relied upon. Each Candidate must independently identify the relevant subcontractors, submit the documents applicable to their role and, where capacities are relied upon, provide a Candidate-specific declaration of commitment in accordance with the requirements set out in Form VIII, demonstrating the actual availability of these capacities. Multiple nominations must not impair the subcontractor’s actual capacity to perform and must under no circumstances lead to the exchange of confidential or competitively sensitive information between the Candidates.
Question 4)
In case the Contractor / Bidder has identified multiple potential Subcontractors for the same scope, is it required to submit necessary forms / references from each one of the identified Subcontractor.
Answer 4)
a) Qualification-providing entities (lending of the capacities of other entities pursuant to Section 47 SektVO)
Where the Applicant/Tenderer relies on the capacities of other entities in order to demonstrate its economic and financial suitability and/or its technical and professional suitability (lending of the capacities of other entities), such entities shall already be named in Form IX together with the request to participate.
In addition, the Applicant/Tenderer shall specify:
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in form IX the reliance on capacities envisaged (economic and financial or technical and/or professional),
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in form IX the part(s) of the contract/works/services concerned, and
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submit the additional documents required for the respective case (cf. Case 2 or Case 3 of Form IX) together with the request to participate.
b) Pure performance subcontractors
Pure performance subcontractors are entities whose capacities are not relied upon for the purpose of demonstrating compliance with the qualification requirements, but which are intended to perform parts of the contract in the event of award (cf. Case 1 of Form IX).
b.1) Request to Participate Stage
Together with the request to participate, the Applicant shall indicate:
in Form IX, which parts of the contract are expected to be performed by subcontractors.
Where the performance subcontractor has already been selected, the respective entity should be named in Form IX.
Where the selection of a performance subcontractor has not yet been finalized at the time of submission of the request to participate, this shall be expressly stated in Form IX.
The documents required under Case 1 of Form IX only need to be submitted at this stage to the extent that they are already available to the Candidate.
b.2) Tender Stage
No later than upon submission of the tender, all intended performance subcontractors shall be identified insofar as a selection has been possible by that time.
With regard to the identified performance subcontractors, Form IX has to be completed and documents required under Case 1 of Form IX shall be submitted insofar as this is possible and reasonable.
Where the selection of individual performance subcontractors has not yet been finalized at the time of tender submission, this shall be expressly stated in Form IX.
Upon request of the Client but latest prior to contract award, the tenderer has to finally identify the relevant subcontractors and to provide fully the corresponding required documents and evidence relating to such subcontractors according to the case 1.