(a) Any delegation may, without invoking the agreed formal dispute procedure, request that the International Staff and/or the appropriate MNC examine the specifications of the “cahier des charges” should it consider that the principles of paragraph 4 have not been observed. The delegation must specify the items of the “cahier des charges” it considers to be contrary to the principles of paragraph 4.
(b) Such requests must be made no later than 14 days before the closing date for the submission of bids and the Infrastructure Committee must be advised by the International Staff or the appropriate MNC that an examination of the technical specification is under way.
(c) The results of such examinations will be reported to the Infrastructure Committee for its consideration, ideally within two months. Until the Committee has considered the examination, the ICB shall be suspended and all firms interested in bidding so notified by the host nation. It is not expected that the Committee consideration would last for more than two meetings. Any bids received before the suspension shall be returned to the firm if so requested by them.
(d) The closing date for submission of bids shall be deferred by the host nation as a minimum by the length of time taken for the examination by the bid specifications by the International Staff or the appropriate MNC and the consideration of the results of the examination of the Committee. In case the bid specifications are modified, not less than 28 days from the notification of the change must be allowed before the closing date of the bid.
Host nations are encouraged to develop and follow for formalized procedures for the evaluation of bids to ensure complete objectivity and non-discrimination.
(ii) Discussions with Bidders (Offerers) during evaluation process
In accordance with the general principles expressed in paragraph 1 of this document, host nations are encouraged to discuss the offer made with the bidder concerned in order to clarify what is being offered and to resolve any potential areas of non-compliance. The objective of this process should be to achieve the maximum number of technically complaint bids and thus reduce the chances of dispute in this respect and allow selection to be made on the straightforward question of price. However, no alteration of bids (including technical, financial and schedule changes) are permissible.
(iii) Comparison of bids without taxes and duties :
(a) bids will be compared on a tax exclusive basis;
(b) to achieve this, all bids will be certified as not including any identifiable taxes. Identifiable taxes are defined as host nation VAT, customs/import duties and such other taxes as may be required by host nation legislation;
(c) however, where host nations do not exempt NATO Infrastructure procurements from taxation and duties and the taxes and duties are charged and collected but borne by the host nations, contractors will, if so required, add to their basic bid the taxes and duties they expect to be levied, it being understood that contract award would be made on the basis of the principle of bid comparison set forth in sub-paragraph (a) above. To assist contractors, the “cahier des charges” should inform bidders of national taxes and duties that the host nation may expect to levy. In such a case these expenses will be listed as a separate item.
(i) the host nation will normally award a contract to the lowest compliant bidder.6 However, should the host nation intend to award the contract to another compliant bidder it must seek the approval of the Committee before making the award;
(ii) in the case of projects other than those covered by sub-paragraph (iii) below, the following provision shall apply:
(a) if a host nation considers that the lowest bid is not compliant and intends to eliminate such a bid then it will notify the firm concerned in writing at the earliest possible stage, clearly stating the reasons for rejection.7 It will, at the same time, notify in similar terms the diplomatic representative of the country of origin of the firm concerned in the capital of the host nation (or in the case of a Major NATO Command or a NATO Agency, in the capital of the country in which the Major NATO Command or the Agency is situated), the NATO delegation of the country of origin and the International Staff. A period of 21 days from the date of receipt of these notifications by the diplomatic representative of the country will be allowed for the receipt of a possible protest from the government of the country of origin against the proposed disqualification of the bid;
(b) after completion of the procedure under sub- paragraph (a) above, and after the settlement of any dispute under the procedure in Annex I to this document, the host nation will award the contract and notify unsuccessful bidders at the earliest possible date;
(iii) in the field of complicated projects and also in those cases where the Committee specifically so directs, the host nation will arrange for bids to be submitted in separate envelopes, one containing the contractual and technical part of the bid, the other only the prices. Before opening the price bids, the host nation will determine whether the bid is compliant :
(a) if it considers that all bids are compliant the host nation will then open the price bids and select the lowest bid. The choice of the winning bid should be immediately made known to all bidders. No earlier than 21 days after the date of such notification the contract may be let to the lowest bidder;
(b) the host nation may however consider a bid to be non-compliant (and therefore propose to eliminate it) even after clarifying discussions with the firm(s) concerned. In this case it will apply the procedure in sub-paragraph (ii) (a) above, and will postpone opening price bids. Only after completion of this procedure will the host nation proceed as in sub-paragraph (iii) (a) above.
(iv) the right of appeal against a notification of rejection expressly excludes the right to correct, alter, add to or delete any part of the bid. Any such appeal must be restricted to explaining why the host nation is deemed to be in error in its evaluation of the bid;
(v) following a declaration of non-compliance and the completion of any dispute procedures, the host nation must return the unopened price envelope.
As soon as possible after contract award under ICB, but in no case later than one month after contract award, the results of all calls for bids shall be forwarded to the International Staff for immediate communication to delegations.
This communication should therefore include the data given at Annex IX i.e.
the name, nationality and amount submitted by the successful bidder and the
name, nationality and amount submitted by the two next lowest compliance bidders
and the date of contract signature. It should also contain a statement
as to whether or not the contract signed covers the full project as authorized, and if not, the extent (estimated percent) to which it covers the project as authorized. When known the same data should be mentioned with regard to major sub-contractors of the successful bidder.
(i) When the host nation decides not to award a contract on the basis of the bids received, unless such decision results from procedures under paragraphs 13 (ii) (a) and 13(iii) (b) above, the host nation must explain the reasons for its action, whether financial or due to the necessity to revise the “cahier des charges” for technical or other reasons. The host nation will promptly inform the Committee of the situation with the reasons for such a decision, at which time the Committee may give any advice it feels useful, e.g. a review of the projects by the NATO International Staff and/or an appropriate working group, with the participation of the host nation.
(ii) Thereafter, the full procedure will again apply, although the Committee may allow such deviations from the normal procedure as it thinks justified by the particular circumstances of the case.
(iii) If it wished to propose such a special procedure for the new call for bids, the host nation will, when notifying the Committee as in (i) above, submit to the Committee the proposed conditions under which this new call would be held for the Committee’s approval.
All notifications by host nations to be made under these procedures will be sent by the most expeditious means of transmission. Maximum feasible use of telex is encouraged. When sent by air/express mail, the date and time of the postmarks will be the governing factor unless a later date is specified by the host country. The Host Nations should issue the “cahier des charges” either by registered mail or by some other means whereby a receipt is returned by the prospective bidder showing date of receipt.
6 Price quotations will be expressed by the contractor in the currency in which he incurs expenses unless the host nation has specified that the price quotations will be in the currency of the host nation. In the evaluation of such bids the exchange rates to be applied will be the average of the official commercial buying and selling rates quoted at the close of business of the working day previous to the bid closing day by the specified source in the country where the price envelopes are opened (see Annex VII). When host nations do not permit contracts to be expressed in foreign currencies the procedure is given in Annex VIII.
7 This does not necessarily imply that the rejected bid is compliant in all other respects. However, the stated reasons for its rejection should be sufficient for the host nation to justify its case should the dispute procedure in Annex I be invoked by the country of origin of the rejected firm. A statement of reasons for rejection made subsequent to the original statement cannot be entertained.