AGREEMENT FOR PROCUREMENT SERVICES

between

GOVERNMENT OF [NATIONALUNITY or SOUTHERN SUDAN]

and

[UN AGENCY]

FOR THE PROCUREMENT OF [ ]

AS PART OF THE [ ] PROJECT FUNDED BY A GRANT FROM THE MULTI DONOR TRUST FUND FOR [ ]

[DATE200X]

1 of 20

THIS AGREEMENT FOR PROCUREMENT SERVICES (this document together with all annexes, this “Agreement”) is made this [ ] day of ______200__.

BETWEEN The Government of [National Unity or Southern Sudan]

AND[ UNITED NATIONS AGENCY ] (“XXX”, together with the Government, the “Parties” and each a “Party”),an international inter-governmental organisation established by the General Assembly of the United Nations by resolution No. 57(I) of 11 December 1946 as a subsidiary organ of the United Nations, having its [XXX Country Office] at[ADDRESS].

WHEREAS:

  1. [UN AGENCY]works with governments, civil society organisations and other partners worldwide to …………..
  1. The Government has entered into a Grant Agreement (the “Grant Agreement”) with the International Development Association (the “Association” as Administrator) pursuant to which it has been provided with financing for a project on the Protection of Basic Services (the “Project”).
  1. The Project is designed to protect and promote the delivery of basic services by sub-national governments while deepening transparency and local accountability in service delivery. The Project focuses on health, education, water and agriculture. Among these, delivery of health services has been identified as one of the most important components. It is managed by the Federal Ministry of Health, Department of Planning. In consultation with the Association, the Government has prepared and approved a procurement plan for the Project.
  1. The Government and [UN AGENCY] have agreed that [UN AGENCY] will provide procurement services to the Government for the procurement of specificsupplies and equipment, and goods, for use in the Project, as more fully set out in this Agreement.
  1. The Government has resolved to use part of the financing referred to in Paragraph [C] above to meet the financial obligations provided for in this Agreement.

NOW THEREFORE the Parties hereby agree as follows:

ARTICLE I

AGREEMENT DOCUMENTS

  1. This document and all its Annexes constitute the agreement between [UN AGENCY] and the Government for the procurement of the goods listed in Annex II to this Agreement (the “Goods”), for use in the Project.
  1. The Annexes to this Agreement are the following:

Annex I[UN AGENCY] General Terms and Conditions

Annex IIList of Goods and Price Estimates(including handling charges)

Annex IIITentative Delivery Schedule and Consignee List for the Goods

Annex IVPayment Request form

Annex VTemplate for Utilization Report

Annex VISchedule of [UN AGENCY]’s handling charges in connection with the Goods

  1. The Agreement documents are to be taken as explanatory of one another, but in case of ambiguities, discrepancies or inconsistencies among the various documents constituting this Agreement, the following order of precedence will apply:

(a)This document will prevail over anyand all of its Annexes;

(b)Annex I: [UN AGENCY] General Terms and Conditions;

(c)Annexes II to VI

ARTICLE II

SCOPE OF AGREEMENT

  1. This Agreement establishes the terms and conditions under which [UN AGENCY] will procure the Goodsrequested bythe Government for the Project.
  1. The Goods will be procured in accordance with [UN AGENCY]'s rules, regulations, and procedures relating to procurement and its financial regulations and rules and with the same care and diligence in undertaking procurement using its own funds, having due regard to economy and efficiency and the need to uphold highest standards of integrity in the administration of public funds including the prevention of fraud and corruption.
  1. During the implementation of the Activities and up to two years after the Activities have been completed, the [UN Agency] shall retain all documentation with respect to the Activities. Upon the Government’s or the Association’s reasonable request, the [UN Agency] shall provide relevant information drawn from such documentation to the Government or the Association.

4.In the event that either the [UN Agency], the Government or the Association becomes aware of factors that would indicate that corrupt, fraudulent, collusive or coercive practices were undertaken in relation to the Activities, the [UN Agency] shall take timely and appropriate action to remedy the situation, in accordance with the [UN Agency’s] established procedures, Financial Regulations and Rules, and provide written progress reports to the Government and the Association regarding the results of the implementation of such appropriate action.

5.For the purposes of this Agreement, the following definitions shall apply:

  • “Corrupt practice” means the offering, giving, receiving, or soliciting, directly or indirectly, of any thing of value to influence the action of a public official in the procurement process or in the contract execution;
  • “Fraudulent practice” means a misrepresentation or omission of facts in order to influence a procurement process or the execution of a contract;
  • “Collusive practices” means a scheme or arrangement between two or more bidders with or without the knowledge of the Recipient, designed to establish bid prices at artificial, non-competitive levels;
  • “Coercive practices” means harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract.

6.The procurement of the Goods under this Agreement will be in the estimated quantities and at the estimated costs provided in Annex II. The specifications of the Goods to be procured under this Agreement are described in Annex II of this Agreement. The costs of any labelling required will be included in the price estimate provided by [UN AGENCY]. In an effort to keep costs within the funds deposited for a particular shipment, either Party shall have the right to decrease quantities given in Annex IIbefore [UN AGENCY] places Purchase Orders for such Goods. For increases of quantities given in Annex II the Parties shall consult with each other and establish any such increases through mutual written agreement.

  1. The Goods will be delivered to the consignees and in accordance with the delivery schedule set out in Annex III. Annex III is a tentative plan at the time of entry into effect of this Agreement and may be changed at any time by an exchange of letters between the Parties.

ARTICLE III

various financial matters

Costs

  1. The estimated price of the Goods is set out in Annex II. The final price of the Goods will be based upon the actual purchase price and the actual freight charges (including packing and insurance charges).
  1. If requestedby the Government, [UN AGENCY] shall issue a proforma invoice containing the information as set out in the Cost Estimate provided by [UN AGENCY] in accordance with clause 18 below. The Parties agree that the proforma invoice is only issued to facilitate the Government’s relations with third parties and shall not establish any obligations beyond those contained in the Cost Estimate. To ensure said facilitation, the pro forma invoice shall include the names of the suppliers and manufacturers of the Goods and their contact information.
  1. Before [UN AGENCY] places any Purchase Orders for the Goods, the Government shall approve all price variations of the Goods from the Cost Estimate. If such approval is not provided within three (3) working days, the respective purchase shall be excluded from this Agreement. In this case, neither Party shall have the right to claim damages or assert claims of any other nature against the other.

Charges

  1. The Parties acknowledge that (a) [UN AGENCY]’s standard handling charge for the procurement of vaccines and warehouse items is __ percent (__%) and (b) [UN AGENCY]’s standard handling charge for the procurement of non-warehouse items is ____ percent (__%). The Parties further acknowledge that [UN AGENCY]’s handling charges for the Goodsprocured under this Agreement are set out inAnnex VI which contains a schedule of the mentioned handling charges. These charges go to defray costs incurred by [UN AGENCY] in procuring the Goods.

Payment

  1. The estimated cost of procurement of Goods under this Agreement is US$ _____ (United States Dollars ______). All costs, fees, charges and other amounts payable under this Agreement will be paid to [UN AGENCY] directly by the Association, on behalf of the Government.
  1. [UN AGENCY] will maintain a separate ledger account, through which all [UN AGENCY]'s receipts and expenditures for the purposes of providing the services contemplated by this Agreement will be recorded (the “______Procurement Account”).
  1. Payment to [UN AGENCY] will be made through the procedures set out in paragraphs 17 and 18.
  1. The Government will instruct the Association to make payments to [UN AGENCY] by transfer to the following bank account:

[Bank address]

For the credit of account:

Credit details:]

Bankcode:

Acount No.:

IBAN No.:

Telex No.

Funds can also be received via Fedwire through: -

[Bank details:

SWIFT:

Fedwire:

For the credit of account:

Bankcode:

Account No.:

  1. The Government will further instruct the Association that when making such transfers it is to notify [UN AGENCY], [contact details] by fax ______or by e-mail (______), of the following: (a) the amount transferred, (b) the value date of the transfer; and (c) that the transfer is from the Association for posting to the ______Account with Grant Agreement No: ______and reference “______”.

The initial Withdrawal Application by the Government and subsequent Payment Requests by [UN AGENCY]

  1. Immediately upon signing of this Agreement by the Government and [UN AGENCY], the Government will deliver to the Association a blanket withdrawal application (the “Blanket Withdrawal Application”) covering the total estimated cost of the Goods (including freight (packing and insurance inclusive) and handling fees) contemplated under this Agreement and authorizing the Association to make direct payment to [UN AGENCY] of all amounts requested by [UN AGENCY] in order to perform the services contemplated under this Agreement. The Government will simultaneously provide a copy of this withdrawal application to [UN AGENCY]. The Government will give notice to [UN AGENCY] immediately upon receiving notice from the Association that this withdrawal application has been received by the Association in good order and accepted by the Association.
  1. Upon receipt by [UN AGENCY] of the notice from the Government of the acceptance of the Blanket Withdrawal Application by the Association, and based on the estimated quantities and costs, the specifications as well as the delivery schedule and consignees specified in Annexes II, III and IV of this Agreement, [UN AGENCY] will send to the Government price estimates (the “Cost Estimates”) and specifications corresponding to the first shipment representing the initial six- month period following the date of signature of this Agreement and to the subsequent shipments thereafter. A Cost Estimate will be deemed accepted by the Government within ten (10) days of receipt of the Cost Estimate, unless the Government notifies [UN AGENCY] otherwise in writing, with a copy to the Association, and communicates the reasons for its rejection to [UN AGENCY] in writing within the specified period of ten (10) days. In the absence of an objection in writing from the Government within the said time period, [UN AGENCY] will proceed with submitting payment requests (the “Payment Request”) together with copies of the Cost Estimate and both Annexes IV and V to the Association for the respective shipment (based on up-to-date delivery estimates) as set out in Annex III, with a copy to the Government, requesting the Association to make payment of the amount to [UN AGENCY]. Upon receipt by [UN AGENCY] of all amounts specified in the Payment Request, [UN AGENCY] will deliver to the Government, with a copy to the Association, a notice to that effect.

Placing Sales Orders and Purchase Orders

  1. [UN AGENCY] will place the sales orders and purchase orders covered by a Payment Request and within the ceiling of the blanket Withdrawal Application only after it receives the full amount specified in such Payment Request (including freight (packing and insurance inclusive) and handling fees). [UN AGENCY] will not be required to place any sales order or purchase order if the full amount specified in the relevant Payment Request is not received within fourteen (14) days of the date on which that Payment Request is delivered to the Association.

Reporting

  1. Within 2 (two) months of the end of each semi- annual period during the term of this Agreement, [UN AGENCY] will furnish a utilization report (the “Utilization Report”) to the Government, in respect of that semi- annual period (a “Utilization Report”); provided however that the final statement of account will be prepared and furnished in accordance with [UN AGENCY] Procurement Services General Terms and Conditions set out in Annex I. A copy of each such Utilization Report will also be provided to the Association. Each statement will include:

(a)the amount of funds on deposit in the ___ Procurement Accountat the beginning and end of the reporting period;

(b)the purchase orders entered into by [UN AGENCY]for the Goods during the reporting period in respect of this Agreement, which shall include the respective order numbers, their delivery dates, quantity ordered and the supplier selected;

(c)the actual quantities delivered against each purchase order during the reporting period;

(d)the actual date of delivery of each delivery during the reporting period;

(e)the actual Goods delivered during the reporting period;

(f)the amounts charged to the ____ Procurement Account during the reporting period and

(g)actual freight amounts charged, and the handling fee charged.

The report will include actual freight amounts charged, and the handling fee charged. Such report shall be expressed in U.S dollars. The Exchange rate used for converting expenditures in other currencies shall be the UN Rate of Exchange, as noted below in Annex I Clause 2.

15. The final statement of account will be prepared and furnished in accordance with the [UN AGENCY] General Terms and Conditions set out in Annex I of this Agreement.

ARTICLE IV

TERMS OF DELIVERY

  1. The Government or its nominated representative will be the consignee of the Goods. [UN AGENCY] will not serve as consignee of the Goods. [UN AGENCY] will arrange for shipment of the Goods to the port of entry designated by the Government. [UN AGENCY] will forward relevant shipping documents, the supplier’s invoice and required product quality assurance documents (such as but not limited to bill of lading / Air Way Bill, Certificate of Analysis) to the consignee. [UN AGENCY] will dispatch the aforementioned documents a) within fourteen (14) days of first vessel departure for sea shipment and b) promptly after receipt of documents from freight forwarders for air shipment. If [UN AGENCY] is prevented from releasing original documentation on account of its rules and regulations or contractual obligations, [UN AGENCY] shall provide certified copies to the consignee. [UN AGENCY] shall inform the Government of any potential or actual delivery delay as soon as [UN AGENCY] obtains information on such delay.
  1. [UN AGENCY] assures that its contracted freight forwarder(s) will consider [national] carriers in providing transportation services to Sudan. The Parties note, however, that the selection of particular carriers is subject to the freight forwarder’s discretion and expertise, and that [UN AGENCY] does not provide guidance in the selection made by freight forwarders for such transportation services.
  1. All Goods will be delivered on Carriage and Insurance Paid (CIP) (INCOTERMS 2000) to the port of entry designated in the Cost Estimate, unless otherwise agreed to in writing by the Parties. Further inland transportation to the warehouse of the ______shall be arranged by [UN AGENCY] as established in Annex III.
  1. Transport insurance informationwill be issued by [UN AGENCY]on request after receipt and recording of the freight forwarder’s invoice.
  1. On an exceptional basis, if the Government wishes to obtain its own insurance coverage for the Goods, evidence shall be provided to [UN AGENCY] and the Association that resources are readily available for prompt payment in a freely convertible currency of the indemnities required to replace lost or damaged Goods. In such a situation, [UN AGENCY] shall not charge the Government for insurance coverage.
  1. For all shipments, [UN AGENCY] shall monitor the shipping process and inform the Government of the shipment status.

ARTICLE V

SETTLEMENT OF DISPUTES

NO WAIVER OF PRIVILEGES AND IMMUNITIES

  1. The Parties will use their best efforts to settle amicably any dispute, controversy or claim arising out of or relating to this Agreement. Where the Parties wish to seek such an amicable settlement through conciliation, the conciliation shall take place in accordance with the UNCITRAL Conciliation Rules then in force, or according to such other procedure as may be agreed between the Parties.
  1. Any dispute, controversy, or claim, which is not settled amicably within sixty (60) days after receipt by one Party of the other Party's request for amicable settlement, will be referred by either Party to arbitration in accordance with the UNCITRAL Arbitration Rules then in force. The Parties shall be bound by an arbitration award rendered as a result of such arbitration, as the final adjudication of such dispute. The Parties will equally share the costs of the procedure. In no event will [UN AGENCY] be liable for incidental, indirect or consequential damages or for lost revenues or profits. The arbitral tribunal will have no authority to award punitive damages. The Tribunal will have no authority to award interest in excess of four percent (4%) and such interest shall be simple interest not compound. As used herein, the term, "UNCITRAL" means the United Nations Commission on International Trade Law. The venue of arbitration shall also be agreed amicably among the parties.
  1. Nothing contained in or relating to this Agreement shall be deemed a waiver, express or implied, of any of the privileges and immunities of the United Nations, including [UN AGENCY], under the Convention on the Privileges and Immunities of the United Nations, the BCA, or otherwise.

ARTICLE VI

TERM AND TERMINATION

AMENDMENTS AND MODIFICATIONS

  1. The Agreement will be effective on the date it is signed by both parties and will remain effective until closing date of theGrant Agreement unless the Grant Agreement is extended or terminated by written agreement between the Association and the Government.
  1. This agreement may be terminated for cause either Party upon ninety (90) days written notice to the other.
  1. Upon termination of this Agreement, the Parties will take all reasonable and necessary measures to conclude the activities already commenced in accordance with this Agreement.
  1. The provisions of this Agreement will survive any termination to the extent necessary to permit an orderly settlement of accounts between the Parties.
  1. This Agreement may be altered, modified or amended only by written instrument duly executed by authorised representatives of the Parties.

ARTICLE VII