DRAFT CONTRACT - NATO fileNSPA RFP BBE17009 NATO UNCLASSIFIED 21 April 2017 Page 1 of 29 . DRAFT CONTRACT . SCOPE OF CONTRACT: Provision of a Role 2 Basic Medical Treatment Facility

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21 April 2017 Page 1 of 29

DRAFT CONTRACT SCOPE OF CONTRACT: Provision of a Role 2 Basic Medical Treatment Facility in support of the KFOR Mission in Kosovo. The Contractor represents that he operates as [ ] an individual [ ] a non-profit organization [ ] a corporation incorporated in .......................... The Contractor agrees to furnish and deliver all the supplies and to perform all the services set forth in the list of services attached to the Terms and Conditions for the consideration stated herein. The rights and obligations of the parties to this contract shall be subject to and governed by the Terms and Conditions and the General Provisions. To the extent of any inconsistency between the Terms and Conditions or the General Provisions and any specifications or other provisions which are made a part of this contract, by reference or otherwise, the Terms and Conditions and the General Provisions shall control. To the extent of any inconsistency between the Terms and Conditions and the General Provisions, the Terms and Conditions shall control.

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TABLE OF CONTENTS This contract consists of:

• Terms and Conditions containing 32 Parts • NSPA General Provisions for Fixed Price Contracts (Services) • Termination for Convenience of NSPA • Instructions to NSPA Contractors deployed on NATO Operations

(INSTRUCTIONS) • Statement of Work version 2.0 dated 10.04.2017 • Questions and Answers dated <TBD at time of award> • The Contractor’s proposal dated <TBD at time of award> • Clarification Questions Asked and Answered dated <TBD at time of award> • Priced Bill of Services (PBoS)

all of which are hereby made a part of the contract and incorporated herein by reference. The following documents are available in the Internet under: www.nspa.nato.int/en/organization/procurement/rules.htm

• NSPA General Provisions for Fixed-Price Contracts (Services) www.nspa.nato.int/en/organization/procurement/forms.htm

• Termination for Convenience of NSPA If you have no Internet access, please contact the undersigned and a printed copy of these documents will be forwarded to you.

http://www.nspa.nato.int/en/organization/procurement/rules.htm

http://www.nspa.nato.int/en/organization/procurement/forms.htm

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AMENDMENT RECORD

REVISION / AMENDMENT

PART / PARAGRAPH

DATE OF ISSUE REMARKS

0.1 21.04.2017 Draft for RFP

0.2 revised Table of Contents (page

2&4), revised Part 5 art

3.1.1. revised Part 6

second paragraph revised Part 7 /

art 5, and Part 9 / art 5

add new Part 14 and renumber

onwards

Revised Part 18 art 3, 4, 5

16.05.2017 Revised Draft for RFP

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TERMS AND CONDITIONS Part 1 - Definitions ........................................................................................................ 5 Part 2 - Order of Precedence ........................................................................................ 6 Part 3 - Services to be furnished by the Contractor ...................................................... 7 Part 4 - Validity of Contract ........................................................................................... 8 Part 5 - Consideration, Invoicing and Payment ............................................................. 8 Part 6 - Revision of fixed prices / rates ....................................................................... 12 Part 7 - Taxes and Duties ........................................................................................... 12 Part 8 - Contractor Notice Regarding Late Delivery .................................................... 13 Part 9 - Mobilization and Demobilization ..................................................................... 13 Part 10 - Performance Bond ......................................................................................... 14 Part 11 - Liquidated Damages (final content still to be determined) ............................. 15 Part 12 - Force Majeure ................................................................................................ 16 Part 13 - Quality Assurance, Performance assessment & Remedies ........................... 17 Part 14 - Status of Contractors’ and subcontractors’ employees .................................. 19 Part 15 - Permits and Customs Clearance Formalities ................................................. 19 Part 16 - Contractor Facilities and Capabilities ............................................................. 20 Part 17 - Site Investigation & Conditions affecting the work ......................................... 20 Part 18 - Contract Material & Workmanship (final content still TBD) ............................ 20 Part 19 - Third Party Liability and Insurance ................................................................. 21 Part 20 - Safety and Accident Prevention ..................................................................... 22 Part 21 - NSPA Representatives and Verification ......................................................... 23 Part 22 - Subcontracts .................................................................................................. 23 Part 23 - Intellectual Property Rights, Royalties and License Rights ............................ 24 Part 24 - Termination for Convenience of NSPA .......................................................... 25 Part 25 - Reporting........................................................................................................ 25 Part 26 - Notification of Changes .................................................................................. 25 Part 27 - Performance of the Contractor in Time of Alert or War .................................. 26 Part 28 - Contract Administration .................................................................................. 26 Part 29 - Publicity and Public Relations ........................................................................ 27 Part 30 - Prevention of smuggling ................................................................................. 27 Part 31 - Prevention of human trafficking ...................................................................... 28 Part 32 - Integrity/ No Bribe .......................................................................................... 29

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Part 1 - Definitions

As used throughout this contract, the following terms shall have meanings as set forth below: The North Atlantic Treaty Organization is hereafter referred to as “NATO”.

“KFOR” stands for Kosovo Force.

“NSPA” stands for the NATO Support and Procurement Agency.

Any reference to NATO or NSPA shall be considered synonymous unless clearly specified otherwise.

Contracting Officer (CO) means the staff managing this contract on behalf of NSPA in Luxembourg with authority to sign the contract and subsequent contract changes (Supplemental Agreements).

Technical Officer (TO) means the staff designated by NSPA to be the authorized representative charged with “overall technical supervision” of the contract and measuring/monitoring Contractor performance. While this individual will ensure technical compliance, he/she will not have a warrant (contract authority) to obligate NSPA.

Troop Contributing Nations (TCN) means the nations whether NATO or non-NATO that are providing military personnel supporting the KFOR mission and who have established a formal presence in theatre.

A Sub-contractor is a firm who is awarded a portion of a contract by the Contractor or another sub-contractor. Where the sub-contract involves a major element of work, the Contractor may apply the NSPA Terms and Conditions to the Sub-Contractor.

The term "days" shall be interpreted to mean calendar days.

Full Operating Capability (FOC) means the Contractor has completed its mobilization and commissioning (if applicable) and has the ability to perform 100% of the services required under the contract.

The Statement of Work (SOW) defines the overall obligations of the Contractor. The SOW consists of the following two main parts:

1.1. Part 1 – Medical Capability

1.2. Part 2 – Facility Support

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The Instructions to NSPA Contractors Deployed on NATO Operations (INSTRUCTIONS) provide general guidelines to Contractors including their obligations as well as those of NATO and/or NSPA vis à vis the Contactor’s deployment. The INSTRUCTIONS may contain an Annex(es) which define(s) the particular requirements for the deployment related to this contract.

“Appendix” refers not only to the Appendix itself, but also to its Annexes and Attachments if they exist.

The term “data” means all recorded information, regardless of form or media, and includes technical data and software, wherein software means any computer program, computer database, and software associated documentation.

Parties to the Contract: COMPANY Name having a registered business at <TBD at time of award> (hereinafter called “Contractor”) and the NATO Support and Procurement Agency (hereinafter called “NSPA”).

References using the masculine includes the feminine and vice versa.

“Person” includes a corporation.

The singular includes the plural, and vice versa.

“Key Performance Indicator” (KPI) shall mean a series of clearly defined measurable standards and/or values used to determine actual performance against clearly specified targets in key areas of service delivery, throughout the life of the Contract.

MPR (Monthly Performance Review) is a monthly summary of Contractor’s performance against contractually agreed KPIs.

Stakeholders mean nations and/or NATO Bodies that have mandated NSPA to contract for services on their behalf.

Part 2 - Order of Precedence

The order of precedence between all the documents related to this contract, from the highest precedence to the lowest precedence, is:

1. NSPA Terms and Conditions 2. NSPA General Provisions for Fixed Price Contracts (Services) 3. NSPA Termination for Convenience 4. The Priced Bill of Services 5. The SOW version (contract version TBD, dated TBD)

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6. The Contractor’s Proposal - To the extent that any of the conditions of the accepted Contractor’s proposal are in conflict with the SOW or the specific requirements of the relevant appendices to the SOW, the requirements of the SOW and the relevant appendix to the SOW shall control.

7. Instructions to NSPA Contractors Deployed on NATO Operations (INSTRUCTIONS) and relevant annexes.

Part 3 - Services to be furnished by the Contractor

1. The Contractor shall furnish to NSPA the services listed and priced in the attached document entitled “Priced Bill of Services” (PBoS) and in accordance with the Statement of Work (SOW).

2. The SOW defines the equipment and facilities that NSPA makes available to the Contractor for the performance of the work. The Contractor is responsible for providing at its cost all the material and human resources that are required to perform the work. The Contractor shall supply transportation, set-up, provision, operation, maintenance and replacement of the necessary infrastructure, materials, equipment, tools, machinery and any other material and human resources required to perform the contracted services.

3. NSPA reserves the right to order additional services of the same type and extend the scope of the contract in the same location, under the pricing arrangements and the conditions provided in this contract and its attachments. If NSPA exercises this right, additional services may be ordered only by the issuance of a formal Supplemental Agreement (Contract Amendment) duly executed between the Parties, as set forth in Part 25 –NOTIFICATION OF CHANGES.

4. Should any of the Contractor’s personnel not perform properly or to the level of expertise required by the Contract or not be capable of performing services within KFOR or not be able to access KFOR installations, the Contractor shall take immediate action, at its cost, to replace the person with an individual who meets the Contract requirements.

5. The provision of sub-paragraph 4 applies as well to sub-contractors and their

personnel.

6. The Contractor must have the ability to liaise daily and without delay with on-site individual Stakeholders / NATO HQs to confirm the actual service strength, to discuss discrepancies, defects, etc.

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Part 4 - Validity of Contract

1. The contract shall be effective for the period commencing with the effective date indicated on the page one of the contract and shall be valid for a period of 3 years.

2. NSPA reserves the unilateral right to extend the contract for either one (1) further period of two (2) years or two (2) further periods of one (1) year with the issue of a Change Order to this contract six (6) months prior to its expiration date.

Part 5 - Consideration, Invoicing and Payment

1. Consideration:

The pricing arrangements set forth in the Priced Bill of Services cover full and unconditional acceptance by the Contractor of all the requirements and conditions included in the Contract. The aforementioned pricing arrangements satisfy any and all expenses incurred by the Contractor for a satisfactory performance under the Contract.

2. Invoicing

2.1. For the purpose of accounting and invoicing (using the NSPA enterprise system based on an SAP platform) NSPA will issue Purchase Orders for the projected amount of the services to be rendered by the Contractor. Normally NSPA will issue one Purchase Order per month for the calendar year. To ensure payment, the Contractor shall reference the Purchase Order number on the invoice

2.2. The Contractor will be authorised to invoice rendered services on a monthly basis and will be authorised to submit his first invoice after the first month for which services were rendered. Under no circumstances will NSPA accept invoices prior to commencement of rendering services or during the Contractor’s mobilization period.

2.3. Draft Invoices, which shall be annotated as such, shall be submitted (electronically) to the ACO with supporting documentation within 3 (three) calendar days after the last day of the month for which services were rendered. The service verification (which includes validation of services by the customer) shall be performed by NSPA within 5 days. Once the verification is complete the ACO will instruct the Contractor to issue the original invoice to Capellen, with minor changes if necessary. Where the changes are not minor, the ACO may require the Contractor to submit a new draft for verification.

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2.4. The Contractor shall submit his invoices with supporting documentation in PDF-document to [email protected]. Alternatively, as hardcopy to:

NSPA CIMO OFFICE 11 rue de la Gare L-8302 CAPELLEN

It shall bear the Contract number and, if applicable, the Supplemental Agreement number, and a description of the services to which they are related. The required lay-out of the invoice shall reflect the information stated on the PO and be communicated to the Contractor by the ACO.

2.5. Only invoices and credit notes are treated under the above referenced email address. Hardcopies must not be sent in parallel! Faxed invoices will not be accepted for payment. The following certificate shall be affixed to each invoice submitted under this contract:

"I certify that this invoice is correct and just, that payment has not been received and that the prices/rates exclude all taxes and duties from which NSPA / NATO is exempted."

2.6. Following or in conjunction with a Cure Notice, NSPA reserves the right to withhold 10% of the value of any invoice, should the Contractor fail to perform any part of the Contracted Services or has failed to correct any identified deficiencies in accordance with the associated Cure Notice. This retained value will be paid to the Contractor upon satisfactory completion of the service or correction of the deficiencies. No interest shall be paid to the Contractor on the retained amounts. If after three (3) months, the Contractor continues to fail in its delivery of the service, NSPA reserves the right to convert a portion of the amount withheld as Liquidated Damages in accordance with the provision for Liquidated Damages Clause. If progress is insufficient but does not yet justify Liquidated Damages, NSPA may extend the three months of retention prior to application of Liquidated Damages. NSPA will inform the Contractor accordingly.

2.7. NSPA may retain 10% of the invoice where the Contractor has started to perform the services but has yet to complete all the requirements of the mobilization. The ACO will inform the Contractor with a letter containing the deficiencies to be corrected. The 10% retention will be applied to subsequent invoices until such time that the Contractor has fully mobilized and is performing all the services to the standards of the Contract. NSPA then considers the Contractor to have reached Full Operational Capability (FOC). Once confirmed, the ACO will inform the Contractor that the retention is being released. The retained amount may be reduced from 10% to 5% if the Contractor is performing all the required services although

mailto:[email protected]

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mobilization is not completed but on schedule. This may be referred as Initial Operational Capability (IOC).

2.8. In application of the provisions in 2.5 and 2.6 above, NSPA’s judgment as of the acceptability of the services rendered by the Contractor shall be final, subject only to the provisions of the "Disputes" clause of the General Provisions. The payment of an invoice that has been reduced by the retained amount shall in no way be interpreted as reducing the Contractor's responsibility for performing the services under the contract.

2.9. The final invoice under this contract must be annotated as FINAL INVOICE.

2.10. Unless mutually agreed between the Contractor and NSPA, NSPA shall not be liable for any expenses which have been incurred more than 12 months prior to the presentation of an invoice and/or claim.

2.11. Further to Clause 13 – DISPUTES of the General Provisions for Fixed-Price Contracts (Services), should the Contractor wish to exercise its right to settle a dispute through arbitration, the Contractor shall notify NSPA of its intention to do so, no later than 60 days after the NSPA decision which forms the object of the dispute.

3. Payment

3.1. Payments will be made contingent to the accomplishment by contractor

and acceptance by NSPA of the services performed. Service validation forms, subject to endorsement by NSPA assigned representative in theatre shall be submitted in support to service invoices.

3.1.1. The not-to-exceed (NTE) mobilization costs shall be billed as a separate line item over the first 36 months of the contract in equal amounts. All mobilization related invoices and internal cost data shall be submitted to the Contracting Officer no later than the first day of month 35 of the contract to substantiate mobilization costs. The total NTE budget for mobilization is subject to downward adjustment only, and shall be settled through the invoice of the 36 month contract.

3.1.2. The not-to-exceed invoice for de-mobilization shall be submitted only upon completion of the demobilization effort (but no later than 3 months after fully demobilized). The demobilization cost will be assessed on the basis of actual supplier invoices and

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internal cost data, which shall be submitted along with the demobilization invoice to the Contracting Officer. The NTE cost for demobilization is subject to downward adjustment only.

3.2. Payment for services performed by the Contractor under the terms of this contract shall be made in -------------- (bidder to specify currency) within .......... (...) days with .. % prompt payment discount or .......... (...) days net following receipt by NSPA of invoices duly certified, supported and substantiated as specified above.(This paragraph will be completed at time of award)

3.3. Unless specifically included in the Price Bill of Services, no adjustments to the firm fixed prices in the PBoS will be effected during the entire contract duration due to changes or variations of exchange rates.

3.4. NSPA Finance Division Capellen will pay the net invoice amount and support the charges of its bank. All other charges associated with payment will be for the Contractor.

3.5. The most efficient method of payment is by electronic funds transfer (EFT). Payments will be made to the bank account identified by the Contractor at time of registration to the NSPA Source file. The selected bank should be located in the same country as the Contractor, otherwise it must be located in a NATO-country.

3.6. Payment in respect of any additional services rendered will only be made, if supported by a separate Purchase Order duly executed by the Parties, separately invoiced and shall be paid on the basis of the agreed prices / rates identified in the Purchase Order itself.

3.7. No payment will be due in respect of any work carried out under the contract if it is established that the necessity for such work is the liability of the Contractor. Payment for any additional work that may be requested over and above the requirements of this Contract will be made only if due under a Supplemental Agreement duly executed by the Parties, and shall be paid on the basis of the Unit Prices for Labour and Materials and / or supplies identified in the Supplemental Agreement itself.

3.8. SERVICES NOT PERFORMED: Where the Contractor has not performed a required service during an invoice period, NSPA reserves the right to reduce the Contractor’s invoice by an amount corresponding to the services not rendered or partially rendered during the period. If the price of the services not rendered is not specifically listed in the Priced Bill of Services, NSPA shall estimate the value of the services not rendered. NSPA shall inform the Contractor in order to adjust the invoice accordingly.

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Part 6 - Revision of fixed prices / rates

The prices under this Contract are firm and fixed including all Options for extension with the exception of the NTE cost for Mobilization and Demobilization. The not-to-exceed (NTE) price for mobilization shall encompass all costs to mobilize and set-up the human and material resources into theatre in order to ensure the contractually obligated full operational capability. It shall be billed as a separate line item over the first 36 months of the contract in equal amounts. All mobilization related invoices and internal cost data shall be submitted to the Contracting Officer no later than the first day of month 35 of the contract to substantiate mobilization costs. The NTE total price is subject to downward adjustment only. The not-to-exceed (NTE) price for demobilization shall encompass costs for getting contractor labour and owned assets out of theatre, including any site remediation and restoration that may be required in the SOW. The invoice for de-mobilization shall be submitted only upon completion of the demobilization effort (but no later than 3 months after fully demobilized). The NTE costs for demobilization will be assessed on the basis of actual supplier invoices and internal cost data, which shall be submitted along with the demobilization invoice to the Contracting Officer. The NTE total price is subject to downward adjustment only.

Part 7 - Taxes and Duties

Clause 7: "Taxes and Duties" of the NSPA General Provisions for Fixed- Price Contracts (Services) is amended as follows: 1. If not located in Luxembourg, the Contractor is specifically responsible for

obtaining any documentation required to permit NSPA and its Customers to benefit from the fiscal regime applicable to exports.

2. NSPA is specifically exempt from all duties and taxes (and this includes Value Added Tax within the European Union). For the purchase of supplies or services in countries within the European Union, NSPA will, upon the request of the Contractor, provide a copy of the form “VAT AND/OR EXCISE DUTY EXEMPTION CERTIFICATE (*)/(Directive 2006/112/EC - Article 151 and Directive 2008/118/EC - Article 13)”. This form will be signed and stamped by a NSPA official for completion and processing by the Contractor as may be required by the national authorities concerned.

3. Contractors should note that NSPA has no VAT number and no VAT identification number.

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4. Luxembourg contractors are invited to note the special provisions for Luxembourg contained in the footnote to Taxes and Duties and Duties Clause of the NSPA General Provisions.

5. Clause 6 “Import and Export Formalities” and Clause 7 “Taxes and Duties” of the General Provisions are supplemented to include the following: All prices shall be net of taxes and duties from which NSPA is exempted either by virtue of its charter or by virtue of the Military Technical Arrangement (MTA) established between NATO and the Federal Republic of Yugoslavia and Serbia, dated 09 June 1999.

Part 8 - Contractor Notice Regarding Late Delivery

In the event that the Contractor encounters difficulty in meeting the time limits specified for any service, he shall immediately notify NSPA in writing, giving pertinent details. However, this data shall be for information only and shall not be construed as a waiver by NSPA of any time limit or of any rights or remedies provided under this Contract and/or any Purchase Order released against this Contract.

Part 9 - Mobilization and Demobilization

1. The Contractor shall initiate Mobilization efforts upon receipt of the NSPA Notice to Proceed and contract, in order to achieve Full Operational Capability (FOC) no later than 1 January 2018.

2. During the Contractor’s mobilization and the demobilization, NSPA may facilitate the provision of Real Life Support services. The Statement of Work defines what services will or will not be available. The Contractor acknowledges that all Real Life Support services are payable and that it is the Contractor responsibility to secure and pay for the appropriate services he may need to operate in theatre.

3. Land allocation and the conditions for its use are described in the Statement of Work

4. At the end of the Contract, the Contractor shall at its cost remove any rubbish, tools, equipment, scaffolding and materials that are not the property of NSPA. The site shall be left in clean, neat, safe and orderly conditions to the satisfaction of the ACO. The Statement of Work defines additional requirements where applicable.

5. Where a follow-on contractor assumes the provision of services after this Contract,

the Contractor shall cooperate with NSPA and the new Contractor during the transition from this Contract to the follow-on Contract and shall allow reasonable

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information and access to the follow-on Contractor prior to the end of services in order to facilitate the transition.

6. The Contractor shall have completed the demobilization effort within three months after the end date of the contract.

Part 10 - Performance Bond

1. Definitions: As used in this clause - “Contract price” means the award price of the Contract. Contract price does not include the price of any options, except those options exercised at the time of contract award.

2. Amount and duration of required bonds:

2.1. Performance bonds. The penal (monetary) amount of performance bonds at the time of contract award shall be 10% (percent) of the anticipated contract price for the first year of service.

2.2. Additional bond protection.

(i) NSPA may require additional performance and payment bond protection if the contract price is increased prior to the expiration, as a result of a Contract Change. The increase in protection generally will equal 10% (percent) of the increase in contract price. (ii) NSPA may secure the additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond.

2.3. Bond duration: The Performance Bond shall be valid for a period of 3 years

after the start of services and include options for two one-year extensions to match the total duration of the contract if option periods are exercised.

2.4. NSPA reserves the right to require the Contractor to extend or issue a new

Performance Bond at the time of exercising the options for contract extension.

3. Furnishing executed bonds: The Contractor shall furnish (in original) all executed

bonds, including any necessary reinsurance agreements, to the Contracting Officer within 7 calendar days after the Contract Award Notice or Contract signature. NSPA will have the irrevocable right to cancel the Contract Award

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Notice or terminate the Contract, as applicable, without any compensation if the Contractor does not provide the requested documents within 7 days or within a mutually agreed time. Should the Contractor elect to mobilize prior to NSPA’s receipt and approval of required insurance and performance bond, Contractor shall do so at his risk, NSPA assumes no liability in this case.

4. Surety or other Security for Bonds: The bonds shall be in the form of firm

commitment, supported by corporate sureties or banking institutions, individual sureties, or by other acceptable security such as certified check, cashier’s check, irrevocable letter of credit.

Part 11 - Liquidated Damages (final content still to be determined)

1. The parties to this contract explicitly recognise that the provision of services are particularly challenging. In light of this, it is agreed that the parties will raise issues of concern at the earliest possible time and work closely together to find mutually acceptable solutions to such issues or problems. In those instances where such an approach does not prove to be successful and if the Contractor fails to comply with its obligation set forth in the Contract and/or its amendments, including but not limited to strict compliance with performance requirements of the Contract, he shall pay NSPA liquidated damages at the rate of up to ten (10 %) percent of the total monthly invoices of the last 3 months or more when the holdbacks are involved, for the services against the applicable SOW Attachment or Annex thereof.

2. Without prejudice to the final judgment regarding the liquidated damages, NSPA

shall be entitled to deduct imposed liquidated damages when paying invoices, even in the event that claims deriving from submitted invoices have been assigned or otherwise transferred to third parties. The total of the deductions made by NSPA pursuant to this clause will be considered as full and final satisfaction of all claims received out of the Contractor’s non-compliance.

3. During a period of three months after delivery and acceptance of the services,

NSPA, shall have the right to claim the aforementioned liquidated damages even if such right is not reserved at the time when delivery is accepted. This right shall be extended to one year if the non-compliance has been the subject of the remedy measures described in Part 13 – QUALITY ASSURANCE, PERFORMANCE ASSESSMENT & REMEDIES.

4. The Contractor is expected to monitor its performance in accordance with its

Quality Assurance processes. However, NSPA will also monitor the performance. Should the Contractor’s performance not meet Contract requirements, the deficiencies shall be communicated to the Contractor as per the procedure described in Part 13 - QUALITY ASSURANCE, PERFORMANCE ASSESSMENT

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& REMEDIES. The Contractor will be given a reasonable period of time to cure the identified deficiencies / services not rendered under the terms of the contract. Where the Contractor will not be able to make good the identified deficiencies during this cure period, liquidated damages as specified in paragraph 1 above shall be applied. The Contractor will be given the opportunity to present his case in writing to NSPA. The ruling of NSPA will be final and will not be disputable by the Contractor except under the Disputes provision of the Contract.

5. Liquidated Damages will not apply if the Contractor’s failure to perform is due to

causes beyond his control and without his fault or negligence as defined in PART 12 - FORCE MAJEURE. If the Contractor is responsible for obtaining necessary export or import licences or documentation/permits/Department of State Publication (DSP) forms, he has to ensure that such requests are made in a timely manner so as to not delay shipment. Failure to do so will NOT be considered Force Majeure.

6. The foregoing paragraphs 1 through 5 above apply only to delinquencies in

deliveries and do not prejudice NSPA’s rights under the provisions of the clause of the General Provisions hereof entitled "Default".

Part 12 - Force Majeure

1. The Contractor acknowledges the operational environment in which the work is to be performed. The SOW provides planning assumptions that need to be taken into consideration by the Contractor. The planning assumptions will be considered in determining whether an event is deemed a Force Majeure.

2. A Force Majeure is an event beyond the reasonable control of the Contractor or

which could not have been foreseen, and without its fault or negligence, has caused a delay in providing services or has precluded the Contractor from performing some or all of the services as provided in the Contract. Subject to the qualifications described above, these include extraordinary acts of nature, war, terrorism, hostilities, acts of the Government in either its sovereign or contractual capacity, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and extraordinary delays of common carriers or freight embargoes or of any fire, at any of the Contractor's premises, those of his sub-contractor or where the Contractor is performing work under this Contract.

3. The Contractor shall notify the Contracting Officer as soon as reasonably possible but not later than 24 hours after a Force Majeure event. The notice shall be made in writing, identifying the nature of the occurrence and the expected time period of the delay or the inability to perform services. The NSPA Contracting Officer will consider granting an extension of services or a waiver, whichever is deemed appropriate.

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4. The Contractor shall not be entitled to any extension of time or waiver, unless the

Contractor shall at all times have taken, all reasonable measures to prevent or minimize any such delay or inability and to do all that may be reasonably required to proceed with the work.

Part 13 - Quality Assurance, Performance assessment & Remedies

1. The Contractor is responsible for maintaining effective control of the quality of the services and of the supplies used / provided in performance of this Contract in accordance with the Statement of Work.

2. If the Contractor himself does not render the contracted services or is not the manufacturer of the contracted materiel, he shall impose these quality requirements upon his subcontractor but remains responsible for the specified level of quality.

3. The Contractor certifies that the services and supplies provided in the execution of this contract are in full compliance with the requirements of the SOW.

4. The requirements of this Contract are subject to acceptance by NSPA, Stakeholders and / or NATO representatives. NSPA shall have access to the Contractor’s premises and Quality records at any time to perform the required planned or unplanned Audits/Inspections as part of Contractor’s Performance monitoring.

5. Acceptance of the rendered services will be performed by NSPA, via specific Service Validation forms. However, claims based on latent defects, fraud, gross negligence, or such gross mistakes as amount to fraud shall not be prejudiced thereby, nor shall the warranty applicable to the supplies and / or services furnished by the Contractor be affected by such acceptance.

6. NSPA will assign suitably qualified staff or delegate external entities to perform periodic (planned and/or Ad-Hoc) inspections/audits and surveillance of the services performed by the Contractor, including evidence that the Contractor is operating according to the Contractors’ processes (as specified in Contractor’s Quality Management Plan (QMP)/ Quality Plan (QP), their Standard Operating Procedures (SOPs) and according to the ISO 9001:2008, ISO 14001:2009 and OHSAS 18001:2007 standards also including Contractor’s Internal Audits and Training records).Such inspections/audits and surveillance shall be carried out in a reasonable manner so as to not unduly affect the timely provision of services.

7. NSPA will assess Contractor performance against the requirements of the SOW

utilizing Key Performance Indicators (KPIs). The Contractor shall be informed of its

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performance assessment in the form of a Monthly Performance Report (MPR). The Contractor shall correct any deficiency as reported in the MPR. Where the MPR identifies recurring deficiency in its performance the Contractor shall produce a mitigation plan (e.g. Corrective Actions needed, Root cause, etc.), in order to correct such deficiency. The mechanism to set and to handle the findings as well as the Contractor’s obligations are defined in the SOW.

8. However, when NSPA determines that the Contractor’s performance is deficient and/or deficiencies identified in the MPR are not being addressed satisfactorily, NSPA will consider Contract remedies. The following describes the steps that NSPA will follow in the application of contract remedies*

a) Letter of Concern shall be prepared by NSPA and sent to the contractor that outlines the deficiency with a recommended date of remedy.

b) The Contractor shall respond initially within 24 hours by letter to NSPA

addressing the recognition of the deficiency. The Contractor shall then implement the required corrective actions and confirm their completion to NSPA within 72 hours or within a mutually agreed timeframe.

c) Where NSPA deems the Contractor’s progress to remedy the deficiency

unsatisfactory, NSPA will issue a Cure Notice to the Contractor.

d) The Contractor shall respond formally to the Cure Notice with a Corrective Action Plan within 72 hours or within a mutually agreed timeframe.

e) NSPA will advise the Contractor formally that the Corrective Action Plan is

accepted and when it considers the Contractor has corrected the deficiency or otherwise inform the Contractor if the Corrective Action Plan or its implementation is not acceptable.

f) The Cure Notice is then considered closed.

*Where the deficiency requires urgent attention or is of sufficient gravity, NSPA reserves the right to modify the sequence of these steps.

9. If the Contractor fails to correct the deficiency, NSPA will consider the application of the other contract remedies. As a first step, NSPA may apply retention of up to 10% of the Contractor’s invoice as described in the Part 4 Consideration, Invoicing and Payment, followed by the conversion to Liquidated Damages. During the mobilization and initial period of performance corresponding to the duration of the Performance Bond, NSPA may call the Performance Bond in order to rectify Contractor deficiencies.

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10. Where specified services have not been performed or performed partially, the provisions in Part 10 and Part 11 shall apply.

Part 14 - Status of Contractors’ and subcontractors’ employees

1. KFOR derives its mandate from UN Security Council Resolution (UNSCR) 1244 of 10 June 1999 and the Military Technical Agreement (MTA) between NATO and the Federal Republic of Yugoslavia and Serbia, dated 09 June 1999. KFOR is operated under Chapter VII of the UN Charter and, as such, is a peace enforcement operation, which is more generally referred to as a peace support operation.

2. The “STATUS, PRIVILEGES AND IMMUNITIES OF KFOR AND UNMIK AND THEIR PERSONNEL IN KOSOVO” are laid down in UMIK/REG/2000/47

(http://www.unmikonline.org/regulations/2000/reg47-00.htm).

Part 15 - Permits and Customs Clearance Formalities

1. The Contractor warrants that he has or will obtain at no cost to NSPA all necessary licenses and permits required in connection with the contract; also that he will fully comply with all laws, decrees and regulations of the country or countries concerned during the performance of the contract, including the observance of all applicable rules and regulations governing the site on which work is to be performed.

2. All customs clearance formalities shall be performed by the Contractor at his cost. NSPA shall in no case be responsible for charges of any nature incurred by the Contractor in effecting such clearance or for any customs infraction committed by the Contractor in connection therewith. The Contractor shall be responsible for compliance with all applicable national import and export customs regulations and formalities, including payment of fees incident thereto and the posting of a customs bond, if required, and further, including all required licenses, customs declarations and other documentation, concerning the entry to and the exit from the Contractor's facility, of all items or materiel pertinent to the Contractor's performance under this contract.

http://www.unmikonline.org/regulations/2000/reg47-00.htm

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Part 16 - Contractor Facilities and Capabilities

1. The Contractor warrants that he has suitable facilities available and that he has all necessary license rights and skilled personnel, technical orders, data, specifications, drawings, standard and special test equipment and tooling to enable him to comply with the requirements of this contract.

2. The Contractor warrants that the repair parts for the performance of the requested services for NSPA will be obtained from authorized sources. NSPA reserves the right to demand proof of compliance with this requirement.

Part 17 - Site Investigation & Conditions affecting the work

1. The Contractor acknowledges that it has taken reasonable steps necessary to ascertain the nature of the services and its location, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to (1) conditions bearing upon transportation, handling, storage of materials and disposal; (2) the availability of labour, water, electric power, and roads; (3) uncertainties of weather or physical conditions at the site; (4) the conformation and conditions of the ground; (5) the character of equipment and facilities needed preliminary to and during performance and (6) the security environment. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the services without additional expense to NSPA.

2. NSPA assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by NSPA. Nor does NSPA assume responsibility for any understanding reached or representation made concerning conditions which can affect the work by any of its officers or agents before the execution of this contract, unless that understanding or representation is expressly stated in this contract.

Part 18 - Contract Material & Workmanship

1. All equipment (equipment also includes buildings and associated works to perform the services), material, and articles incorporated into the services covered by this contract shall be of the most suitable grade for the purpose intended, unless otherwise specified in the contract. References in the specifications to equipment, material, articles, or patented processes by trade name, make, or catalogue number, shall be regarded as establishing a standard of quality and shall not be

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construed as limiting competition. The Contractor may, at its option, use any equipment, material, article, or process that, in the judgment of NSPA, is equal to that named in the specifications, unless otherwise specified in the contract.

2. All services and work under this contract shall be performed in a skillful and workmanlike manner. NSPA may require, in writing and with an appropriate explanation, that the Contractor remove from the work any employee that NSPA deems incompetent, careless, or otherwise unsuitable.

3. The Contractor shall furnish all facilities, equipment, and labor necessary for provision of services as stipulated in the SOW. The Contractor shall amortize the costs to set-up facilities and equipment within the mobilization NTE budget. The costs associated to maintenance, refurbishment or replacement of facilities and equipment shall be factored within the service rates throughout the contract performance period.

4. Title to, and full responsibility and liability for the Contractor Furnished Property shall remain with the Contractor.

5. The Contractor is responsible for full demobilization or disposal at the end of the contract.

6. Where the Contractor purchases, upon NSPA order, a major asset (that had not been planned or specified in the RFP or proposal) in the course of the performance of the Contract, the Contractor shall provide NSPA with the amortization schedule of the respective asset and its residual value at the end of the Contract period and the time the assets are fully amortised. If the Contractor fails to provide NSPA with such information it is deemed that residual value of the major asset is zero at the end of the basic Contract period.

7. The provisions of Clause 12.4 of the General Provisions for Fixed-Price Contracts (Services) with respect to the transfer of title to NSPA once property is fully paid are not applicable to Contractor Furnished Property.

Part 19 - Third Party Liability and Insurance

1. In the performance of this contract, the overall liability lies with the Contractor. NSPA shall not be liable for any damage to properties or bodily injury, including death, owned or sustained by any third party. Moreover the Contractor and its personnel have no claim whatsoever on NSPA for any damage which may occur to properties or persons.

2. The Contractor shall indemnify, hold and save harmless and defend at its own expense, NSPA, Stakeholders and/or NATO HQs, its officers, agents, servants

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and employees from and against all suits, claims, demands and liability of any nature or kind, including costs and expenses, arising out of acts or omissions of the Contractor or its employees, agents or sub-Contractors in the performance of this Contract, including the use of NATO furnished equipment.

3. This clause shall extend to claims and liability in the nature of workmen compensation, social insurances, personal and/or corporate taxation by any de jure or de facto Governmental Authorities.

4. The Contractor understands and agrees that physical security of the Contractor’s personnel and property on site and elsewhere is entirely the liability of the Contractor, and that related risks shall be covered by a specific insurance inclusive also of medical evacuation within 48 to 72 hours in case of serious accidents.

5. Without thereby limiting his responsibilities outlined above, the contractor shall take insurance with a reputable insurance company against all loss of and damage to Third Party and Contractor property and bodily injury to persons, including death, arising out of or in consequence of his obligations under the Contract and against all actions, claims, demands, cost and expenses in respect thereof. As a minimum, the insurance amount shall be 2 times the projected contract value including option years or € 10,000,000, whichever is the lower amount.

6. Further, the contractor shall provide and thereafter maintain all appropriate workmen’s compensation and liability insurance to cover its employees and any claims for death, bodily injury or damage to property arising from the execution of this Contract.

Part 20 - Safety and Accident Prevention

1. In performing any work or services under this contract on premises which are under the direct control of NSPA's customers, the Contractor shall conform to all safety rules and requirements, and take such additional precautions as may be prescribed on such premises for safety and accident prevention purposes. The Contractor agrees to take all reasonable steps and precautions to prevent accidents and preserve the life and health of Contractor's personnel, NSPA’s personnel and/or any third party, performing or in any way involved in the performance of this contract on such premises.

2. The Contractor is responsible for and must strictly comply with the safety and environmental provisions of the attached SOW, if any.

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Part 21 - NSPA Representatives and Verification

1. Subject to prior notification, NSPA representatives will have reasonable access to the premises where the work required by the contract is being undertaken and to observe or inspect any work or test performed. Accordingly, the Contractor undertakes to permit such access to his own premises and to ensure that similar rights are included in the terms and conditions of all sub-contracts.

2. Upon NSPA request, the Contractor shall make available all relevant drawings, specifications, procedures, tools, measuring instruments, test equipment and records.

Part 22 - Subcontracts

1. For the objective of this contract the Contractor shall enter into the following sub-contracts:

Subcontractor Address Reasons for subcontracting

(i.e. list main services / SOW reference)

2. The Contractor shall not change any such sub-contract without the written

approval of the NSPA Contracting Officer.

3. For the purpose of this clause, the procurement, delivery and installation of facilities and equipment, as well as the procurement of in-theatre real-life support services shall not be deemed to be a sub-contract.

4. The Contractor is solely responsible for the performance of the contract. No

consent or approval by NSPA to any sub-contract or any provisions thereof shall be construed to be a determination of the acceptability of any sub-contract price or of any amount paid under any sub-contractor to relieve the Contractor of any responsibility for performing the Contract in accordance with its existing terms and conditions, unless such approval or consent specifically provides otherwise.

5. Approval is not required from NSPA for the Contractor to make "off-the-shelf"

purchases, purchases of standard commercial articles and materials, or procurement of real life support services.

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6. It is the responsibility of the Contractor to ensure a subcontractor and its personnel have the required capability to perform the work. If a subcontractor is no longer capable of performing the work because of security or other reasons, the Contractor shall implement alternative measures to ensure uninterrupted performance under the Contract at no additional cost to NSPA.

7. In order to ensure NSPA's rights under this contract, the Contractor shall flow down the relevant requirements. i.e. those for which the Contractor has an obligation towards NSPA to any subcontract he will conclude.

8. Paragraphs 4 to 7 above are critical elements in the performance under this contract.

Part 23 - Intellectual Property Rights, Royalties and License Rights

1. The Contractor guarantees that he is in possession of all the necessary intellectual property rights in force in the countries where the items will be manufactured and / or services will be performed, under this contract and in other countries where the intellectual property rights are in force. The contractor possesses any licenses necessary for the performance of this contract and made any other arrangements required to protect NSPA from any liability for intellectual property rights infringement in said countries. The Contractor will at his expense hold NSPA harmless and fully indemnify NSPA against all damages, costs, charges, expenses and the like arising from or incurred by any reason of any infringement or alleged infringement of intellectual property rights in consequence of the provision of the service and / or materiel.

2. The Contractor agrees to assure himself that the Original Equipment Manufacturer(s) (OEM) or any entitled third party have not retained any intellectual property rights, before he provides services and / or manufactures items under the contract. NSPA shall not be liable for intellectual property rights infringements as may be caused by the Contractor.

3. The Contractor confirms that no payments of royalties or fees for intellectual property rights will be claimed by the OEM or any entitled third party for the services performed and / or materiel provided under this contract. In the event that such fees are claimed, the Contractor will bear any and all responsibility.

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Part 24 - Termination for Convenience of NSPA

The provisions applicable to “Termination for Convenience of NSPA” are available in the Internet.

Part 25 - Reporting

The Contractor shall furnish to NSPA the reports set forth in the attached SOW, and any relevant information and data related to the performance of the contract that may be reasonably requested by NSPA.

Part 26 - Notification of Changes

1. If at any time during the performance of this contract, the Contractor considers that he has been directed to change or deviate from, in any way, the terms and conditions and/or the scope of this contract, he shall notify the contracting officer immediately. This notification shall as a minimum contain a cost breakdown of the additional costs to be incurred by the Contractor if he would implement the change/deviation and the related impacts on the terms and conditions. This information must be provided to such level of detail to allow the contracting officer to provide a comprehensive response within 14 days after receipt of the notification from the Contractor.

2. Following the submission of this notification, the Contractor shall diligently continue performance of this contract to the maximum extent possible in accordance with its terms and conditions as originally agreed.

3. NSPA shall not bear any responsibility for work performed by the Contractor outside the contract scope and NSPA shall not compensate the Contractor in either time or money for such work not specifically authorized or requested by the contracting officer in writing and subsequently included in the contract through a Supplemental Agreement.

4. Consequently, the Contractor cannot claim additional money and/or time for work performed during the performance of the contract which has not been identified as part of the scope of this contract.

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Part 27 - Performance of the Contractor in Time of Alert or War

The Contractor warrants that, on the basis of information available to him, he is not aware of any national law or regulation, or any circumstances that might prevent him from fulfilling his obligations under this contract in time of alert or war.

Part 28 - Contract Administration

By the Contractor: The names of the officials designated by the Contractor to administer this contract are: Contractual matters: Company name: ------------------------------------------ Address: ------------------------------------------

------------------------------------------ Attn: ------------------------------------------ Phone: ------------------------------------------ Fax: ------------------------------------------ email: ------------------------------------------ Technical matters: Company name: ------------------------------------------ Address: ------------------------------------------

------------------------------------------ Attn: ------------------------------------------ Phone: ------------------------------------------ Fax: ------------------------------------------ email: ------------------------------------------ (Will be completed at time of award) By NSPA: All correspondence and communications pertaining to contract administration shall be sent to the following: NATO SUPPORT AND PROCUREMENT AGENCY (NSPA) L-8302 CAPELLEN, LUXEMBOURG Attn: LB-MMC (Mr. Benoît BERG) Phone: (+352) 3063 6670

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Fax: (+352) 3063 4200 email: [email protected] and/or Attn: LB-MMC (Mrs. Astrid HENRIONNET) Phone: (+352) 3063 6780 Fax: (+352) 3063 4200 email: [email protected] For all technical matters, the responsible technical authority is: NATO SUPPORT AND PROCUREMENT AGENCY (NSPA) L-8302 CAPELLEN, LUXEMBOURG Attn: ..-MMC ( …………............... ) Phone: (+352) 3063 .... Fax: +352) ........ email: …………….. (Will be completed at time of award)

Part 29 - Publicity and Public Relations

1. The Contractor shall not make any press release or public statement concerning this contract without the prior written approval of NSPA.

2. The Contractor agrees that, upon request NSPA may provide copies of the signed contract to officials of NSPA's customer nation who are or were directly involved in the procurement of the goods and / or services ordered hereunder.

3. The Contractor shall not use the name, emblem or official seal of NSPA / NSPO or any abbreviation of the name of NSPA / NSPO in connection with its business or otherwise, unless prior authorized in writing by NSPA.

Part 30 - Prevention of smuggling

Upon receipt of reliable information that the Contractor, his servants and sub-Contractors and / or their employees, have been engaged in smuggling activities in relation to this Contract, NSPA shall have the right to:



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1. have the goods related to such smuggling seized and, as appropriate in the circumstances, transferred to the criminal authorities for further action as appropriate, and;

2. terminate the Contract for default.

Part 31 - Prevention of human trafficking

1. NSPA draws the Contractors attention to NATO’s zero tolerance policy regarding trafficking in persons. The Contractor and contractor employees shall not engage in any form of trafficking in persons during the period of performance of the contract and/or use forced labor in the performance of the contract.

2. The Contractor shall notify its employees of NATO’s zero tolerance policy and the

actions that will be taken against employees for violations of this policy. Such actions may include, but are not limited to, removal from the contract, reduction in benefits, or termination of employment. The Contractor shall take appropriate action, up to and including termination, against employees or subcontractors that violate the NATO zero tolerance policy.

3. The Contractor shall inform the Contracting Officer immediately of any information it

receives from any source (including host country law enforcement) that alleges a Contractor employee, subcontractor, or subcontractor employee has engaged in conduct that violates this policy; and any actions taken against Contractor employees, subcontractors, or subcontractor employees pursuant to this clause.

4. In addition to other remedies available to NATO, the Contractor’s failure to comply

with the requirements of this clause may result in:

4.1 Requiring the Contractor to remove a Contractor employee or employees from the performance of the contract;

4.2 Requiring the Contractor to terminate a subcontract; 4.3 Suspension of contract payments; 4.4 Termination of the contract for default, in accordance with the termination

clause of this contract; or 4.5 Suspension from NSPA’s source file.

The Contractor shall include the substance of this clause, including this paragraph in all subcontracts.

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Part 32 - Integrity/ No Bribe

1. NSPA draws the contractors' attention to the fact that it is strictly forbidden to offer gifts or other advantages to Agency staff members. This also includes any so-called end-of-year gifts, which cannot be considered to be advertising presents.

2. If the Agency establishes that this ban has been disregarded, NSPA may terminate this contract at no cost to NSPA and your firm may be removed from the Agency's source file after the Agency has informed the relevant national authorities.

Documents

DRAFT CONTRACT - NATO fileNSPA RFP BBE17009 NATO UNCLASSIFIED 21 April 2017 Page 1 of 29 . DRAFT CONTRACT . SCOPE OF CONTRACT: Provision of a Role 2 Basic Medical Treatment Facility