10. This clause seems to conflict with Section III 2.3, ESHS declaration To declare that an applicant does not meet 2.1 requires History of Non- performance. We believe that 2.3 a number of conditions i.e.: does not differentiate whether the historical information must be based on fully settled disputes or nonperformance was due to ESHS or otherwise. As litigation such, a bidder would be disqualified in case of the previous non-performance was not challenged by nonperformance under 2.3 (whether due to ESHS or the contractor through referral to dispute resolution otherwise) whereas 2.5 does not require mechanism of the contract disqualification and instead requires only due diligence in the case of nonperformance due to ESHS if challenged by the contractor, the dispute must failures. Clause 2.5 should be revisited together with have been fully settled against the contractor. 2.3. The ESHS declaration operates in a much simpler way Our suggestion is that Non-performance (termination and does not have these conditions to establish what of contract) due to ESHS is already covered under non-performance, in ESHS circumstances, is. 2.3. Therefore, 2.5 could only mention Suspension of Intentionally, the ESHS declaration makes simple Contract due to failure to comply with contractors’ reference to previous suspension/termination and/or ESHS requirements. In such cases, it will also be forfeiture of performance security for ESHS reasons. useful to mention suspension of contract for a certain This requires no condition to be met as in 2.1. period (say a number of months cumulatively over the duration of the contract) that will be considered as Again, this declaration is not for considering a contractor non-performance. as a non-performer but rather for additional due diligence purposes (at the bidding stage, in case of PQ for example). 2.5 is not an assessment of past performance based on fully settled disputes and applies to specialized as well as the main contractor. The ESHS declaration and provision can apply independently of 2.1 and does not hinder 2.1 to be applied if the conditions of 2.1 are fulfilled.
10. ESHS declaration This clause seems to conflict with Section III 2.3, History of Non- performance. We believe that 2.3 does not differentiate whether the historical nonperformance was due to ESHS or otherwise. As such, a bidder would be disqualified in case of nonperformance under 2.3 (whether due to ESHS or otherwise) whereas 2.5 does not require disqualification and instead requires only due diligence in the case of nonperformance due to ESHS failures. Clause 2.5 should be revisited together with 2.3. Our suggestion is that Non-performance (termination of contract) due to ESHS is already covered under 2.3. Therefore, 2.5 could only mention Suspension of Contract due to contractors’ failure to comply with ESHS requirements. In such cases, it will also be useful to mention suspension of contract for a certain period (say a number of months cumulatively over the duration of the contract) that will be considered as non-performance. To declare that an applicant does not meet 2.1 requires a number of conditions i.e.: information must be based on fully settled disputes or litigation the previous non-performance was not challenged by the contractor through referral to dispute resolution mechanism of the contract if challenged by the contractor, the dispute must have been fully settled against the contractor. The ESHS declaration operates in a much simpler way and does not have these conditions to establish what non-performance, in ESHS circumstances, is. Intentionally, the ESHS declaration makes simple reference to previous suspension/termination and/or forfeiture of performance security for ESHS reasons. This requires no condition to be met as in 2.1. Again, this declaration is not for considering a contractor as a non-performer but rather for additional due diligence purposes (at the bidding stage, in case of PQ for example). 2.5 is not an assessment of past performance based on fully settled disputes and applies to specialized as well as the main contractor. The ESHS declaration and provision can apply independently of 2.1 and does not hinder 2.1 to be applied if the conditions of 2.1 are fulfilled.