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Standart Contract for the Consultancy services - ANNEX 4
« on: May 20, 2009, 08:27:14 PM »
Annex: 4
STANDARD CONTRACT FOR PROCUREMENTS OF CONSULTANCY SERVICES
Standard Contract for Unit Cost/ Lump Sum Procurements of Consultancy Services

Article 1 – Parties to the Contract
This Contract hereby has been executed by and between …………………………………………… (hereinafter referred to as “the Contracting Entity”) on one part and ……………………….1 ……………. (hereinafter referred to as “the Consultant”) on the other part on the following terms and conditions.

Article 2 – Information about the Parties
2.1. Address of the
Contracting Entity   : ………………………………………………………………………………..
Phone         : ………………………………………………………………………………..
Fax         : ………………………………………………………………………………..
E-mail (if any)   : ………………………………………………………………………………..

2.2. Notification Address
of the Consultant   : ……………………………………………………………………………….2
Phone         : ………………………………………………………………………………..
Fax         : ………………………………………………………………………………..
E-mail (if any)   : ………………………………………………………………………………..

Article 3 – Language of the Contract and Correspondence
The language of the Contract and annexes hereto as well as the communications is Turkish.3

Article 4 – Notifications
4.1. Both Parties hereby accept the addresses specified in Articles 2.1 and 2.2. as their notification addresses. Notifications to the last addresses informed shall be deemed to be sent to the respective Parties unless any change to the addresses is duly notified to the other Party.

4.2. The Parties may send notifications to the other Party by means of delivery personally, mail or mail courier, telex, fax or e-mail provided that the written notification is sent later within the stipulated duration.

Article 5 – Definitions
The following definitions shall be used within this contract other than the terms defined in Public Procurement Law No. 4734 and Public Procurement Contracts Law No. 4735 in implementing this Contract hereby:

“Work” shall refer to the Consultancy Services awarded to the Consultant and that is undertaken for performance within the scope of Contract including any kind of increases;

“Consultant” shall refer to the service provider that renders consultancy services;

“Contract Documents” shall refer to the contract and Tender Documents enclosed to the Contract;

“Workplace” shall refer to the places where the works are carried out and other places that are temporarily and continuously used during the term of the work;

“Control Organization (Control Office)” shall refer to a person or committee that is assigned within the body of the Contracting Entity to control and inspect the works or the physical or corporate body/ bodies that is/are assigned to perform such duties outside the body of the Contracting Entity;

“Consultant’s Equipment” shall refer to all tools and all equipment of whatsoever nature that are required to complete and remedy the defects of the Consultancy Services;

“Examination and Acceptance Proceedings” shall refer to the proceedings that must be completed after the Consultancy Service or any Part or portion of the it indicated in the Contract are received by the Contracting Entity;

“Consultant’s Attorney” shall refer to the person that is authorized by virtue of a power of attorney that is issued by a notary public to represent the Consultant with respect to the work under the Contract upon acceptance by the Contracting Entity;

“Third Person” shall refer to the person or persons other than the Contracting Entity, Control Organization and Consultant;

“Day” shall refer to the calendar day;

“Application Month” shall refer to the month when the works are carried out in compliance with the work schedule approved by the Contracting Entity;

“Year” shall refer to the calendar year;

“Subcontractor” shall refer to the physical or corporate body the acts on behalf of and under the control of the Consultant in order to carry out some part of the work under the Contract upon approval of the Contracting Entity;

“Partner” shall refer to each member of the joint venture if the Consultant is a joint venture;

“Party” shall refer to either Contracting Entity or Consultant according to circumstances, and the “parties” shall refer to both of them;

“Personnel” shall refer to the persons that are employed against wages by the Consultant or subcontractor, and that are assigned with the performance of the Consultancy Services or part of them;

“Expatriate Personnel” shall refer to the personnel that are not the citizens of Republic of Turkey;

“Key Personnel” shall refer to the personnel that the Consultant shall employ for rendering the services, and whose names, titles, job descriptions and qualifications shall be indicated in the technical tender;

“Services” shall refer to the works that will be carried out by the Consultant as per the Contract and that are defined in the Contract Documents in order to perform the work;

“Technical Document” shall refer to all projects, calculations, and similar technical data and document submitted to the Consultant by the Contracting Entity as well as the projects, similar technical data and documents submitted by the Consultant and approved by the Contracting Entity as per the Contract;

“Contract Amount” shall refer to the amount that is indicated in the contract over the currency applicable for payment and that will be paid to the contractor in return for completing the works mentioned in the contract as well as the increased works that may be required as per Article 24 of Law #4735 owing to the cases that are not anticipated, and if any, remedying the deficiencies and defects;

“Date of Commencement of Work” shall refer to the date when the Consultant receives the instruction to commence the work from the Contracting Entity, and the date when the workplace is handed over to the Consultant in respect of the works that require delivery of worksite;

“Completion Period” shall refer to the time interval that will be calculated as from the date of commencement of work and that is determined for completing the Works or any part thereof indicated in the Contract including the time extension graced by the Contracting Entity;

“Certificate of Acceptance” shall refer to the certificate that is issued after the works are completed and then inspected by the Acceptance Committee;

“Chapter” shall refer to the sections of work that are clearly specified in the contract as a part or portion;

“Currency Taken As Basis For Payment” shall refer to Turkish Lira;

“Authority” shall refer to the Public Procurement Authority;

“Board” shall refer to the Public Procurement Board;

……………………………4

In cases where the scope and content of the terms defined in this article are on contrary to the scope or content of the terms used in the Public Procurement Law #4734 dated 04.01.2002 or the legislation enacted based upon this law, the scope or content of the terms used in the Public Procurement Law #4734 dated 04.01.2002 or the legislation enacted based upon this law shall be applicable.

Article 6- Description of Work
The work under the contract is ……………………………, and the technical specifications and other details of the Work are set forth in the documents that are enclosed to the contract and that constitute the Tender Documents (If the contractor is a joint venture in the form of a consortium, the part of work undertaken by each partner in the consortium shall be clearly written here).

Article 7 – Contract Type and Amount5
…………………………………………………………………………………………………………
…………………………………………………………………………………………………………

Article 8 – Annexes to the Contract
8.1. All documents included in the Tender Document shall be an annex to and an integral part of this Contract hereby, and shall bind the Contracting Entity and the Consultant. However, in the event that there is a conflict or discrepancy between the provisions of the Contract and provisions of the documents comprising the Tender Document, the provisions specified in the Tender Document shall be taken as basis.

8.2. The Tender Document is consist of the following documents and the order of priority within these documents is as follows:
1) Administrative Specification
2) Financial tender that is finalized as a result of negotiations, unit cost schedule in annex and technical tender
3) Draft Contract
4) Special technical specifications (if any)
5) General technical specifications (if any)
6) Clarifications (if any)
………………………………
………………………………6

8.3. Addenda of the documents listed above shall have the order of priority of the related documents.

Article 9 – Duration of the Contract7
Duration of the Contract shall be ............... days / months following the date of commencement to work.

Article 10 – Place of Work, Handover of Worksite and Work Commencement Date8
10.1. Place of work: …………………………………………………………………………………...
10.2. Handover (if any) of worksite and work commencement date: ………………………………...

Article 11 – Taxes, Levies, Charges and Other Costs Concerning the Contract
………………………………………………………………………………………………………9

Article 12 – Provisions on the Performance Bond10
12.1. Performance Bond: The amount of performance bond concerning this work shall be …………………………………… (in figures) and ………………………… (in words); and the Consultant11 has furnished ………………………………… (in figures) and ……………………… (in words) as the performance bond.12

12.2. Additional Performance Bond: In the cases requiring the payment of price difference, deduction shall be made from the payments at the rate of 6% of the price difference payable or additional performance bond shall be received from the values accepted as guarantee. The additional performance bond that is calculated over the amount that will be paid as the price difference can also be covered by deducting from the progress payments.

12.3. Performance bond and additional performance bond provided by the Consultant shall be changeable with the values set forth in Article 34 of Law #4734.

12.4. Returning Performance Bond and Additional Performance Bond:  After the Contracting Entity determines that the work has been performed in accordance with the provisions of the Contract and Tender Document, and the Consultant does not have any outstanding debt to the Contracting Entity due to this work, the performance bond and the additional performance bond shall be returned to the Consultant after the certificate of no binding issued by the Social Security Institution is submitted to the Contracting Entity.13

12.5. In the event that outstanding debts of the Consultant to the Contracting Entity and social security institutions due to this work as well as the legal tax deductions made from prices and payments assumed as prices are not paid until the final acceptance date of the services, performance bonds and additional performance bonds shall be converted into cash and deducted against the incurred debts, and if any, the remaining amount shall be returned to the Consultant without any need for written protest and judgment by a court.

12.6. In the cases where it is not necessary to make deductions as per the provisions set forth above, the performance bonds shall be invalid and returned to the relevant bank or private financial institution because they are not demanded in spite of the written demand of the Contracting Entity within two years following the approval of the final account and acceptance protocol. Guarantees other than the letters of guarantee shall be registered as revenue for the Treasury.

Article 13 – Place and Terms of Payment14
13.1. The contract amount (including the amount for the increases owing to the increased works)15 shall be effected by ………………………………..16 according to the schedule and conditions set forth herein below:

13.2. Exchange Rate of Payments: ………………………………………………………………….17
13.3. Progress Payments and Terms of Payment18

13.3.1. …………………………………………………………………………………………………

13.3.2. After the supportive documents are submitted to the Contracting Entity, the Contracting Entity shall issue the progress payment reports and ensure that the necessary payment is effected to the Consultant within thirty (30) days at the latest. Only the payments concerning the part of the progress payment report that cannot be evidenced sufficiently with the necessary documents can be delayed. If any inconsistency arises between the actual payment and the expenditures that are authorized to be made, the Contracting Entity shall add this difference to any of the subsequent payments or deduct it from such payments.

13.3.3. If the contractor does not sign the report within one week after the progress payment report is issued, the Control Organization shall submit the progress payment report to the Contracting Entity and the report shall be retained without any proceeding at the Contracting Entity until it is signed by the Consultant. If the Consultant fails to sign the progress payment reports in a timely manner, he cannot make any claim and request owing to the delay in payment.

The temporary progress payment report that is drawn up and signed by both parties can be corrected by the competent authorities until the accrual proceedings. However, the former figures and letters should be crossed out legibly during such correction, and bear the signature of the officer that makes such correction. However, if there a great deal of corrections to the extent to require the issuance of new page, a separate page shall be drawn up and attached to the progress payment report provided that there is an explanation that correction has been made on the main page.

In the event of any claim, the temporary progress payment reports of the Consultant should indicate the counter-opinions and the justifications, and also the description of it in the petition that will be submitted to the Contracting Entity and a copy of which shall be attached to the progress payment report, and must be signed by writing the sentence, “according to the claim set forth in my petition dated …………. submitted to the Contracting Entity” or any other sentence with the same meaning. If the Consultant makes a claim against the corrections that can be made in the progress payment report by the competent authorities until the accrual after the progress payment report is signed, he shall be liable to notify such claim to the Contracting Entity by virtue of a petition within ten days at the latest as from the date of payment of the progress payment to him. If the consultant does not inform his claims in that way, he shall be presumed that he has accepted the progress payment as such in.

The amount that is to be added to the amount of each progress payment shall be included in the contract. The amount of previous progress payment shall be deducted from the amount that is calculated, and Value Added Tax (VAT) shall be added to such amount to be calculated. The withholdings set forth in the contract, and if any, the debts of the Consultant to the Contracting Entity as well as the penalties and the taxes that must be received statutorily shall be deducted. The Progress Payment Report shall accrue by the end of the period at the latest set forth in the contract as from the date of signing by the Consultant or his attorney, or if such period is not indicated, within thirty days. The payment shall be effected within thirty days as from such date.

13.4. Failure of Application by Consultant
If the Consultant fails to make application for progress payment, the Contracting Entity can issue the progress payment report within maximum three months unilaterally.

Article 14 – Terms and Amount of Advance Payment19
14.1. After the work commences and the work program is approved by the contracting entity, the advance payment shall be effected at the amount indicated above against the values that can be accepted as guarantee at the percentage of …………………..20 of the contract amount for the expenses of equipment, plants, materials etc. necessary to execute the contract upon the written request of the Consultant. The delivered advance payment shall not be conveyed away to another one on no consideration.

14.2. The letter of guarantee to be provided by the consultant against such advance payment shall have the qualities acceptable to the Contracting Entity and comply with the procedures and the form included the tender document.

14.3. The Contractor has to indicate that such advance payment shall be utilized for the purpose indicated hereinabove as well as the quantity and amounts that such advance payment is to be allocated and the dates of payment, and that the provisions of advance payment shall be complied with in such written application to be submitted to the contracting entity.

14.4. The contractor shall submit the invoices and similar applicable documents evidencing that such advance payment has been utilized for the specified purposes to the contracting entity as soon as possible. The contracting entity shall at all times be entitled to deduct the advance payment or balance thereof from the next progress payment at once, and if this is not sufficient or there is not any progress payment, convert the letter of guarantee for advance payment into cash if the work program delays or the advance payment is not utilized properly or the work does not commence within a reasonable period of time.

14.5. The deduction of advance payment shall be made on the basis of the following principles written below21:

The percentage for deduction of advance payment is …………………..22 more than the percentage of advance payment. The advance payment shall be deducted by applying the percentage for deduction of advance payment to the amount of each progress payment as from the date of advance payment. The letter of guarantee for advance payment shall be returned up to the amount deducted. The balance of advance payment, if any, shall be deducted from the last provisional progress payment irrespective of the percentage.

14.6. If the amount of progress payment is not sufficient, the difference shall be deducted by covering from the letter of guarantee for advance payment. If the work is dissolved, the Consultant has to pay the balance of advance payment within one month following the date of acceptance of such dissolution. If the payment is not affected after the end of such period, the balance of advance payment shall be deducted by covering from the letter of guarantee for advance payment.

14.7. If the work is dissolved, the Consultant has to pay the balance of advance payment within thirty days as from the date of dissolution. If the payment is not effected at the end of this period, the balance of advance payment shall be deducted by covering from the letter of guarantee for advance payment.

Article 15 – Price Difference
15.1. The consultant shall not be entitled to claim price difference due to any increase in taxes, levies, charges and similar financial liabilities until the complete performance of the contract or new financial liabilities both during the performance of contract and within the period of time extended.

15.2. ……………….………………………………………………………………………………………23.

15.3. Principles and procedures concerning the price difference under this contract shall not be amended after the contract is concluded.

Article 16 – Information about Subcontractors and Their Responsibilities
16.1. ………………………………………………………………………………………………..24.

16.2. Those that should be disqualified from the procurement as per paragraph 2 of Article 10 of Public Procurement Law #4734, and those that cannot participate in the procurement as per Article 11, and those that are prohibited from participating in the procurement as per Article 58, and those from the foreign countries mentioned in the Decree of Council of Ministers that is to be taken as per sub-item 8 of item (b) of the contract, and those that are prohibited as per Article 26 of Public Procurement Contracts Law #4735.

16.3. The Consultant has to act as a diligent tradesman on selection of the subcontractor(s), and pay the due attention and take the due care. The Consultant is responsible for the acts and actions of the subcontractor as per Article 15 of Public Procurement Law #4734.

16.4. In order to get the whole or some of the works to be assigned to subcontractors carried out by other contractors due to force majeure during the performance of works, the Contracting Entity must be satisfactory with and accept such new subcontractor candidates, and the Consultant must conclude a contract before notary public with such new subcontractors before carrying out the work, and submit a copy of such contract to the Contracting Entity. The Contracting Entity shall indicate whether it accepts such new subcontractor or not within fifteen days, and it may request changing such subcontractor or getting the work carried out by Consultant himself.

The parts of work of the subcontractors can be changed during the performance of work provided that it is approved by the Contracting Entity.

16.5. If the Contracting Entity determines that the works carried out by the subcontractor do not comply with the terms and conditions set forth in the contract and annexes, it may request changing such subcontractor or getting the work carried out by Consultant himself.

Article 17 – Penalties and Deductions
The work under the contract shall be completed in a timely manner and delivered to the Contracting Entity availably. If the Consultant fails to fulfill such requirement in any manner, he shall pay penalty by ……………….25 of the Contract Amount for each calendar day delayed.

……………………………………………………………………………………………………..26

Article 18 – Cases and Conditions for Extension of Duration
18.1. Force Majeure: The Contracting Entity shall accept the cases listed below as the events of force majeure provided that they are not caused by any defect attributable to the Consultant, and they have the nature to hinder the performance of the contract, and the consultant does not have sufficient power to eliminate this hindrance, and the consultant notifies the Contracting Entity in writing within 20 (twenty) days following the day of occurrence of the case of force majeure, and they are documented by the competent authorities:
   a) Natural disasters,
   b) Legal strikes,
   c) Epidemics,
   d) Announcements for partial or general mobilizations,
   e) Other similar cases to be determined by the Authority where necessary.

The Consultant shall apply to the Contracting Entity with a letter indicating the details and consequences of events and how long the duration of work has to be extended, and if it is not possible to determine the period to be extended, the reasons thereof within twenty days following the date of emergence of the reasons requiring the time extension, and immediately notify the time extension requested with a separate letter after this case is clarified.

Applications not made in time shall not be taken into consideration and the Consultant cannot request for time extension after the expiry of the application period. The applications during the effectiveness of force majeure shall be taken into account as from the date of emergence of the force majeure.

18.2. Reasons Attributable to the Contracting Entity: In the event that the Contracting Entity does not fulfill the contractual obligations (delay in handing over the worksite and approval of the projects and work program, delay in permissions, licenses and approvals and lack of appropriations etc.) within the stipulated duration without any default of the contractor as specified in the contract and General Specification, and any delay occurs with reasons not caused by the contractor, and the work is not completed in time, the situation shall be reviewed by the Contracting Entity upon request by the contractor provided that this hinders the performance of the contract and the contractor does not have sufficient power to eliminate the hindrance, and the Contracting Entity may extend the time for a part of or whole work according to the nature of the work.

18.3. …………………………………………………………………………………………………27

Article 19- Control Organization and Authorities
The Control Organization appointed by the Contracting Entity shall inspect whether the work is carried in compliance with the standards (quality and specifications) set forth in the contract and annexes hereto. The Control Organization shall keep the records for the works carried out and report to the Contracting Entity about progress of the works.

Article 20- Records and Minutes for Performance of Work
…….…………………………………………………………………………………………………28

Article 21- Work Program
21.1. The Consultant shall draw up a detailed Work Program in the form stipulated by the Contracting Entity for the Consultancy Services undertaken within ………… calendar days from the date of commencement to work and submit to the Contracting Entity for approval. If the Consultant fails to draw up and submit the work program to the Contracting Entity for approval, the Contracting Entity shall draw up the work program discretionally.

The order and dates of submittal to the Contracting Entity of the projects, reports, technical documents etc. concerning the services must be indicated in the Work Programs.

21.2. The Consultant has to duly comply with the work program approved by the Contracting Entity. However, the work program can be changed upon approval of the Contracting Entity under compulsory cases.

Article 22- Revised Program
If there is a time extension approved by the Contracting Entity in relation to the work or the Control Organization is of the opinion that the program approved for the actual progress of works has not been complied with, the Consultant shall draw up a revised program and submit to the Contracting Entity within ten days to ensure that the works are completed within the Period of Completion upon the request of Contracting Entity.

Article 23- Continuation of Duties and Responsibilities of Consultant
That the programs mentioned above are submitted to the Contracting Entity, and that the approval of the Contracting Entity is taken or that the general clarifications mentioned hereinabove are given shall not release the Consultant from the duties or responsibilities undertaken as per the Contract.

Article 24- Early Completion of Work
If the work is completed earlier than the period set forth in the contract, the Contracting Entity shall complete the acceptance proceedings in compliance with the procedures set forth in Article 42 without waiting for the date of completion laid down in the contract.

Article 25 – Intellectual and Industrial Property Rights
……………………………………………………………………………………………………….29

These rights shall be exclusively belong to the Contracting Entity provided that the imperative provisions of the legislation in force is reserved, and the scope and content of the product are not corrupted and the product is not used in a way to deteriorate the image and prestige of the owner of product.

In the event that any right and/or interest subject to intellectual and/or industrial property under protection as per the provisions of the relevant legislation is violated when or since the Consultant is fulfilling the obligations, any administrative, legal, penal and financial liability to this effect shall be on account of the Consultant. The Consultant shall not be entitled to make any claim from the Contracting Entity in this matter. If the Contracting Entity faces any legal sanction in spite of this, it shall recourse to the Consultant upon the written request of the Contracting Entity provided that its other rights are reserved.

The Consultant shall submit the deeds of assignment and/or letters of consent about the rights on the intellectual and/or industrial property rights or the rights on pieces that arise as a result of services according to the demands of the Contracting Entity.

Article 26- General Obligations of Consultant
The Consultant shall take maximum care for the generally accepted techniques and practices when fulfilling the obligations under the contract and rendering the Services, and he shall work efficiently, and act according to the economic principles, and use reliable and efficient materials, equipment, machinery and methods with sound management and advanced technology. He shall act as the reliable Consultants for the Contracting Entity in every matter concerning the Services under the Contract and he shall support and protect the legal interests of the Contracting Entity in the relations with the subcontractors and third persons.

Article 27- Compliance With Legislation
The Consultant shall comply with all national legislations in performing and completing the works, and remedying the defects that may arise in Works, including all related notices and payments, and he also comply with the bylaws and regulations of the public organizations whose properties or rights are or can be affected from the Works in any manner whatsoever, and the Consultant shall indemnify the Contracting Entity against all penalties and liabilities that it may incur owing to the breach of such provisions.

Article 28- Providing Opportunities for Other Consultants and Contractors
The Contractor shall, according to the requirements of the Contracting Entity, provide all reasonable opportunities for,
a) all other Consultants and contractors, and their personnel employed by the Contracting Entity,
b) the personnel of Contracting Entity,
c) other persons and their personnel duly assigned for any work that is not included in the contract or assigned by the Contracting Entity under a contract in connection with the works under the contract or in order to help these works within or in the proximity of the workplace.

Article 29- Prohibition of Consultant From Having Interests Through Commissions, Discounts and Other Means
29.1. The amount payable to the Consultant is the exclusive payment to be effected to the Consultant in relation to the Contract or Services, and the Consultant shall not act in a way that will result in interests for him in fulfilling the duties and obligations in connection with or under this Contract, and the related commissions and discounts shall only be applied in favor of procurement and the Consultant shall not have any additional interest or profit from it, and take all possible measures to prevent the subcontractor’s personnel and representatives to have additional profits in this manner.

29.2. In the event that the Consultant is liable for making recommendations to the Contracting Entity about the procurement of goods, works or services as a part of these services, the Consultant shall comply with the procurement procedures that the Contracting Entity has to comply with, and always fulfill such responsibilities in a way to protect the interests of the Contracting Entity. Any kind of commission or discount that the Consultant may get while performing and fulfilling the procurement works and related duties shall be registered as revenue for the Contracting Entity.

Article 30- Prohibition to Engage With Conflicting Activities
The Consultant, Consultant’s Personnel, subcontractor and their personnel cannot enter into any commercial or professional activity that may cause conflict of interests with the Services awarded to them under the Contract directly or indirectly.

Article 31- Confidentiality
The Consultant and subcontractors and their Personnel cannot disclose any information about this Contract and the information about the commercial activities and transactions of the Contracting Entity without written consent of the Contracting Entity both during and after the term of this Contract provided that the Judgments of Turkish Judiciary Authorities are reserved.

Article 32- Protection Measures and Insurance
32.1. The Consultant has to take any kind of safety measure t prevent the occurrence of accidents, damages and losses during the term of work. The Consultant shall be liable for indemnifying the damages and losses that may arise owing to the failure to take the sufficient safety measures. All expenses concerning the safety measures both required by the Contracting Entity and taken by the Consultant at his disposal in these matters shall be on account of the Consultant.

The Consultant has to take all necessary measures in order to prevent the occurrence of accidents, damages and losses, and comply with instructions given by the Control Organization to decrease the possibilities of accidents, damages and losses.

32.2. The Consultant is obliged to insure any kind of tools, materials, projects, reports and documents etc. as well as the completed parts of the services from the commencement of works under the contract until the acceptance against the earthquakes, floods, landslides, storms, fires, thefts, accidents and similar dangers according to their properties and nature.

……………………………………………………………………………………………………….30

It is compulsory to insure the assets over their complete values, and the Contracting Entity shall have the capacity of employer, and the Consultant shall have the capacity of undertaker, and if any, the subcontractors shall be indicated on the policies issue.

All insurance limits shall be updated on the anniversary of the date of commencement of work.

32.3. The Consultant has to submit to the Contracting Entity the policies and evidences of payment concerning the said insurances required by the Contracting Entities before the work actually commences. Advance payment and progress payment shall not be paid unless the insurances are completed.

32.4. Professional Liability Insurance31

Article 33- Reporting Liability
The Consultant shall draw up and submit to the Contracting Entity the projects, reports and similar documents indicated in the Technical Specification in the form, number and period indicated in the Technical Specification again.

Article 34- Equipment and Materials Supplied by Contracting Entity
Both the materials and equipment supplied to the Consultant by the Contracting Entity for rendering the services under the contractor and purchased by the Consultant through the financing provided by the Contracting Entity shall be the property of the Contracting Entity, and recorded accordingly. After this Contract terminates or is annulled, the Consultant shall submit an inventory of the said materials and equipment to the Contracting Entity, and deliver such materials and equipment to the Contracting Entity according to the instructions of the Contracting Entity. The Consultant shall insure such materials and equipment as long as he possesses such materials and equipment, and the insurance costs shall be covered by the Consultant.

Article 35- Personnel Description32
…………………………………………………………………………………………………………

Article 36- Approval of Personnel
The Key Personnel whose names and titles are set forth in Article 36 have been approved by the Contracting Entity. The Consultant shall submit the CVs to the Contracting Entity for review and approval before the said personnel start working in relation to the key personnel that are intended to be employed for rendering the consultancy services. If the Contracting Entity does not make any written objection within twenty one (21) calendar days from the date of receipt of the CVs of such personnel with the reasons thereof, it shall be deemed that the said key personnel have been approved by the Contracting Entity.

Article 37- Dismissal and/or Substitution of Personnel
a) The key personnel shall not be substituted unless by virtue of the written consent of the Contracting Entity. If it is required to substitute personnel owing to any reason that is out of the reasonable control of the Consultant, the Consultant shall assign the personnel with the same or superior qualifications instead of such personnel.

b) If the Contracting Entity determines that the personnel have seriously misused their duties and there is a civil investigation with the claim an offense that will prevent the duly fulfillment of duties undertaken or without damaging the confidence of the Contracting Entity or it has sufficient reasons for not being satisfied with the performance of personnel, the Consultant shall assign the personnel with the same or superior qualifications instead of such personnel acceptable to the Contracting Entity upon the notice of the Contracting Entity to this effect with the reasons thereof.

The wages payable to the personnel that will be assigned instead of the personnel substituted as per paragraphs (a) and (b) hereinabove shall be subject to approval by the Contracting Entity. Unless otherwise agreed by the Contracting Entity;

All traveling costs and other expenses concerning the substitution and/or dismissal of the personnel shall be borne by the Consultant.

The wage payable to the new personnel shall not exceed the wage paid to the personnel that are substituted or dismissed.

Article 38- Responsible Manager
The Consultant shall ensure that a Resident Responsible Manager acts as responsible for the performance of such services as acceptable to the Contracting Entity during the overall term of rendering services.

Article 39- Aids and Facilities
The Contracting Entity shall provide the necessary aids and facilities for the Consultant where necessary in relation to the following matters:
Obtaining the necessary working permits for the consultant, subcontractor and personnel, and other necessary documents to ensure that they render the Services;
Obtaining the entry/ exit visas to/from Turkey, residence permits and other permissions necessary to enable them to live in the Republic of Turkey in respect of the Expatriate Personnel and the persons approved among those that they are liable to look after;
Completing the customs proceedings of the materials required for services as well as the goods of Expatriate Personnel and the persons approved among those that they are liable to look after;
Providing the facility for the Consultant, subcontractor and their personnel for bringing the foreign exchange at reasonable amount for rendering the services and the personal expenditures of themselves and the ones that they are liable to look after, and withdraw the money earned by the personnel during the performance of services;
………………………………………………………………………………………………………33

Article 40- Handover of Worksite
The Contracting Entity warrants that the Consultant can access to any place and site necessary for the works free of charge and without any restriction. The Contracting Entity shall be responsible for any kind of loss and damage that may occur to these lands and the immovable assets located on these lands as a result of the fact that the Consultant enters into such places and sites, and the Contracting Entity shall indemnify the Consultant and the Consultant’s personnel against any financial liability as long as the said loss or damage does not arise from the fault or negligence of the Consultant and subcontractor or their personnel.

Article 41- Delivery, Examination, Acceptance Proceedings and Final Account
When the work under the contract is completed, the Contractor shall apply to the Contracting Entity with a petition containing the demand to conduct the acceptance proceedings after taking delivery of the work. The works carried out shall be subject to preliminary inspection by the Control Organization upon the instruction to be given by the Contracting Entity. As a result of such inspection, if the Control Organization finds out that the works are completed in compliance with the requirements set forth in the Contract and annexes in the present condition or even though it is not completed, the work that is received is free of any condition that may significantly damage the functionality of work and it is acceptable in its present condition to meet the needs of the Contracting Entity, it shall inform to the Contracting Entity that the work is completed or deemed accepted with the punch list. In this case, the Contracting Entity shall establish an Acceptance Commission that consists of minimum three persons and the acceptance stage commences. The examination and acceptance proceedings of the work received shall be performed within ……………….34 business days as from the date of delivery of the work according to the provisions laid down in the “Regulation on Examination and Acceptance of Procurements of Consultancy Services” published in the Official Gazette #24968 dated 19.12.2002, and then the final account report shall be issued.35

If the deficiencies or defects that are unacceptable for meeting the needs of the Contracting Entity since they are significant and they prevent the functionality of work in the inspection made upon the petition of the consultant, this shall be notified to the Contracting Entity and the acceptance stage shall not be initiated. The Contracting Entity shall send a notice in advance of ………… days36 clearly indicating the reasons to the Consultant to complete the deficiencies in accordance with the Contract and annexes thereto, and request him to complete the works. If the Consultant fails to make the works acceptable in a timely manner after this notice, the Contract shall be terminated. If this completion period causes exceeding the period set forth in Article 9, such exceeding period shall be subject to working under penalty.

Upon the second application for delivery after the deficiencies are remedied in such period of time, the Control Organization shall make an inspection again and inform to the Contracting Entity that the works are completed in compliance with the requirements set forth in the Contract and annexes in the present condition or even though it is not completed, the work that is received is free of any condition that may significantly damage the functionality of work and it is acceptable in its present condition to meet the needs of the Contracting Entity with a punch list after the remedial of deficiencies and defects. If the Consultant or his attorney is not present in the Acceptance in spite of the call or denounces from signing the Acceptance Protocol, this shall be written into minutes separately.

If the work is approved by the Acceptance Committee after the inspection with the Consultant or attorney, an Acceptance Protocol shall be drawn up and signed by the Consultant or his attorney. If the Acceptance Committee finds out the defects and deficiencies concerning the acceptance of work, it shall issue a list indicating the defects and deficiencies found out and determine the period necessary to remedy them.

If the deficiencies found out by the Acceptance Committee during the acceptance are not remedied by the Consultant within the period of time determined, the penalty at the amount of ……………%37 of the amount written in Article shall be applied as the delay penalty according to the condition of deficiencies to be remedied, and the date of acceptance shall be postponed to the date of remedial of deficiencies. However, if this delay exceeds the period indicated in the contract, the Contracting Entity can get third parties to remedy such deficiencies. The value of such works shall be deducted from the receivables or performance bonds, if any, of the Consultant. In this case, the penalty continues to be applied and the date of acceptance is postponed until the deficiencies are completed.

The date to be taken as basis for the date of acceptance shall be the date when the Work is readily available for acceptance, and the Acceptance Commission shall determine this date and enter into the minutes. A Certificate of Acceptance shall be issued indicating the works carried out (where necessary, a list including the work items) in detail as a result of completion of the acceptance proceedings.

Article 42- Final Account Report
The Acceptance Committee shall issue a Final Account Report with the complementary documents indicating the value of all works carried out in compliance with the Contract in detail within 60 days at the latest following the issuance of Certificate of Acceptance. The Final Account Report shall include the following information as a minimum:
(a) The amount that is outstanding and payable certainly as per the Contract according to the opinion of the Acceptance Committee;
(b) The balance (if any) that the Contracting Entity is payable to the Consultant or vice versa, as the case may be, after deducting all sums paid by the Contracting Entity beforehand and all receivables of the Contracting Entity under the Contract;
If an amount is foreseen to be paid to the Consultant during the stage of Final Account, this amount shall be paid to the Consultant by the Contracting Entity within 60 days following the submittal of the Final Account to the Contracting Entity.

Article 43 – Amendment to the Contract
It shall be possible to amend the provisions of the contract on the following points provided that the contract amount is not exceeded and it is agreed by both the Contracting Entity and the Consultant:

a) Place of performance or delivery place of the work
b) Duration of the work and terms of payment for this duration provided that the work is performed and delivered before its due time.

It shall not be possible to amend the provisions of the Contract and arrange a supplemental contract apart from the cases cited above.

Article 44 –Assignment of Contract
44.1. It shall be possible to assign the Contract upon written consent of the Contracting Officer under compulsory circumstances. The Contracting Entity shall check whether there is any hindrance as per Article 16 of Public Procurement Contracts Law No. 4735 while considering the demands for assigning the contract. The signatures of the Contracting Officer, assignor and the assignee shall be affixed to the Assignment Contract that is concluded following the essential approval of the Contracting Officer and the statements of the assignor and the assignee to the effect that they are not in the cases specified in Article 16 of Public Procurement Contracts Law No. 4735 shall be within the Assignment Contract, and the assigned receivables must meet the requirements applicable for the initial procurement. Approval of the assignment of Contract by the Contracting Officer shall not release the assignor from any liability concerning the works carried out until the date of assignment.

44.2. In the event that the Contractor assigns the contract without any authorization and that the Contracting Entity realizes that the Contractor assigns or is assigned another contract within three years following and prior to the assignment date excluding the assignments made in order to change the title and legal status of the company, the Contract shall be terminated and provisions of Articles 20, 22 and 26 of Law No. 4735 shall be applicable for the assignor and the assignee.

Article 45 – Death, Bankruptcy, Severe Illness, Retention or Imprisonment of Contractor
…….…………………………………………………………………………………………………38

Article 46- Termination of Contract by Consultant
Should the Consultant notifies in writing with the reasons thereof to the Contracting Entity that he shall not be able to perform the contract since he is in a financial difficulty except for the force majeure after the contract is concluded, the performance bond, and if any, additional performance bonds shall be registered as revenue without any necessity to issue a letter of protest and the contract shall be terminated, and the final account shall be settled according to the general provisions.

Article 47- Termination of Contract by the Contracting Entity
   The Contracting Entity shall terminate the Contract in the following cases:
a)    If the Consultant does not perform the Contract in accordance with the provisions of the tender document and the Contract or complete the work in time, and if the same situation continues in spite of the written notice of the Contracting Entity for a period specified in this Contract, but not less than twenty days with regard to the application of the delay penalty at the rate stipulated in the Contract,

b)    If it is determined that the Consultant enters into prohibited deeds or actions stipulated in Article 25 of Public Procurement Contracts Law No. 4735 during the performance of the Contract,

   the performance bonds and, if any, additional performance bonds shall be registered as revenue and the Contract shall be terminated, and the account shall be settled according to the general provisions without any need for a written protest.

Article 48- Termination of the Contract Due to Prohibited Deeds and Actions Prior to Contract
If it is found out after the Contract is concluded that the Consultant has entered into prohibited acts or deeds during the procurement process as per Law No. 4734, the performance bond, and if any, additional performance bonds shall be registered as revenue and the contract shall be terminated, and the final account shall be settled according to the general provisions.

However, provided that at least 80% of the contract is completed and there is public interest in the completion of the contract, in the case that;

(a)    There is not sufficient time to tender the remaining part of the contract again due to urgency of work,
(b)    It is not possible to have another Consultant perform the contract, and
(c)    Prohibited act or deed of the Consultants does not hinder the completion of the contract,

the Contracting Entity may require from the Consultant to complete the contract without terminating the contract, and in this case, the Consultant shall be liable to complete the contract. However, in this case, Article 26 of Law No. 4735 shall be applied and penalty shall be received from the Consultant at an amount equal to the performance bond, and if any, additional performance bonds. Such penalty may be collected by making deductions from the progress payments.

Article 49- Provisions on Termination of Contract
49.1. If the Contract is terminated since the Consultant is in financial difficulty, the contract shall be deemed terminated as of the expiry of the period of the notice, which shall not be less than twenty (20) days from the date of notification of the reasons and results clearly through notary public when the demand for termination of the Contract is delivered to the Contracting Entity, and in the event that the Consultant fails to fulfill the commitment in accordance with the tender document and the provisions of contract or complete the work in a timely manner (this period shall neither affect the duration of contract nor prevent imposing delay penalty), and the contract shall be deemed termination as of the date of determination of the fact that the Consultant has entered into the prohibited acts or behaviors listed in Article 26 of Public Procurements Law #4735 during the implementation of the Contract and that the Consultant has entered into the prohibited acts or behaviors after the contract is concluded as per Public Procurement Contracts Law #4735 in the procurement process. The resolution of termination shall be taken by the Contracting Entity within seven days following such dates. This resolution shall be notified to the Consultant within five days following the date of resolution.

49.2. Should the contract is terminated according to Articles 19, 20 and 21 of Public Procurement Law No. 4735, performance bond, and if any, additional performance bonds shall be updated according to the monthly wholesale price index published by the State Statistics Institute from the date of furnishing the same until such bonds are registered as revenue. The difference between the updated amount and the amount of performance bond, and if any, additional performance bonds shall be received from the Consultant.

49.3. In cases where the performance bond is received by deducting from the progress payments, the received amount shall be registered as revenue, and furthermore, the amount of performance bond corresponding to the amount of work not performed following the date of termination shall be updated according to the provisions set forth in paragraph one and received from the Consultant.

49.4. If the contract is terminated, the performance bond and additional performance bonds, if any, of the Consultant shall be registered as revenue as per Article 20 of Public Procurement Contracts Law #4735. The performance bonds registered as revenue cannot be set off against the debt of the Consultant. Furthermore, the provisions set forth in Article 26 of Public Procurement Contracts Law #4735 concerning prohibition from participating in the procurements shall be applied for the Consultants and the loss and damage incurred by the Contracting Entity owing to the termination of Contract shall be indemnified by the Consultant.
The dissolution of work under the Contract terminated shall be made according to the general provisions.

Article 50- Termination of Contract Due to Force Majeure
The Contracting Entity or Consultant may unilaterally terminate the Contract due to force majeure. However, if the Consultant requests time extension due to such force majeure, the work has to be completed according to the contract and annexes thereto at the end of the time extended to enable to Contracting Entity to terminate the contract. In the event that the contract is terminated, the final account shall be settled according to the general provisions and the performance bond, and if any, additional performance bonds shall be registered as revenue.

Article 51- Additional Works, Decreased Works and Dissolution of Works That Are Possible Under Contract
…….…………………………………………………………………………………………………39
Article 52 – Indemnification Liability of the Contractor
(Amended: 08/06/2004 – 25486 Official Gazette/ Art. 51) The Consultant shall be directly liable for the losses and damages that may arise owing to the facts that the works undertaken under this Contract are not carried out in compliance with the legislation, and that the professional ethics are not respected, and that the information and experience are not used for the benefit of the Contracting Entity and owing to the similar reasons, and he shall be successively liable for fifteen years with the contractors and subcontractors that undertake the works in the event that construction supervision services are rendered.

Such losses and damages shall be covered and compensated by the Consultant according to the general provisions. Furthermore, the provisions of Article 27 of Public Procurement Contracts Law No. 4735 shall applicable for such Consultant.

Article 53- Cases Not Stipulated Herein
In cases that are not stipulated herein, the provisions of Public Procurement Law #4734 and/or Public Procurement Contracts Law #4735, and the general provisions shall be applied in the events that there are not the related provisions in such laws.

Article 54- Settlement of Disputes
………………………………………………………………………………………………………40

Article 55- Miscellaneous Provisions
…….…………………………………………………………………………………………………41
Article 56 – Enforcement
This Contract hereby shall take force following the notification of the registration of the Contract by the Court of Accounts, and in cases where the registration by Court of Accounts is not necessary, the date when the contract is signed by the respective parties42.

This Contract hereby, which consists of ............................ Articles, has been issued and executed in ................. copy / copies after fully read and understood by the Contracting Entity and the Contractor on ………………….. and ............ copy / copies has / have been delivered to the each party.


CONTRACTING ENTITY43            CONSULTANT44





   “1- In all cases other than the ones set forth in item 1 of paragraph 1 of Article 2 of International Arbitration Law No. 4686;
   “Any discrepancy arising out of this contract and annexes hereto shall be under the jurisdiction of ………………………………….. (the court of the city where the contracting entity is located shall be written herein) ………………………… courts and execution offices.”

   2- In all cases set forth in item 1 of paragraph 1 of Article 2 of International Arbitration Law No. 4686;
   “Any discrepancy that cannot be settled through mutual agreement between the Contracting Entity and Consultant as well as any dispute arising in connection with the application, interpretation of the provisions provided in the Contract and similar issues (except for the cases where the Contracting Entity shall have the authority to act and decide at its own disposal according to the provisions of the contract) shall be settled according to the provisions of International Arbitration Law No. 4686 dated 21.06.2001.

   The arbitration panel shall consist of three arbitrators. Each party shall assign one arbitrator and such two arbitrators shall select the third arbitrator within a period of thirty days. If either of the parties fails to select his own arbitrator within thirty days after he receives the notification to this end sent through Notary Public by the other party or the two arbitrators assigned by the parties fail to select the third arbitrator within thirty days of such assignment, both the second arbitrator and the third arbitrator shall be selected by Court of First Instance for ……………… ( the city where the contracting entity is located shall be written herein)upon the demand of either of parties. The third arbitrator shall be the chairman.

   Substantial legal rules related to any dispute shall be governed by the Turkish Law. The language of the arbitration shall be Turkish. The venue of arbitration shall be ………………………………….. (the city where the contracting entity is located shall be written herein) …………………………. The court having the jurisdiction shall be the Court of First Instance for ………………………………….. (the city where the contracting entity is located shall be written herein) …………………………. Even if the dispute is referred to the arbitrator by the Contracting Entity or Consultant, the Consultant shall be liable to continue to work and comply with the resolutions that will be reached by the Contracting Entity in respect of performance of the work.


 41.   In cases where there are not provisions in this Standard Contract, the provisions can be included in the contracts under this heading to include one or more articles by the way of replacing the articles provided that they are not on contrary to the tender document and the provisions of Public Procurement Law #4734 and Public Procurement Contracts Law #4735, and General Specification for Works and the legislation published by the Public Procurement Authority in relation to them as well as the other regulating legislation and imperative legal rules, and that they do not make amendments to the provisions of this Standard Contract or eliminate the consequences of them according to the nature of work.

42.   A) If it is stipulated to get the contract certified by notary public in the tender document, “registration and certification by notary public” shall be written instead of “execution by the respective parties”.
   B) In cases where the pertinent legislation stipulates another procedure for the enforcement of the contract, the contracting entity shall write this article according to the said legislative provisions.

43.     Name, surname and position of the contracting officer shall be written herein.

44.     Name, surname and signature of the Consultant (authorized representative if he is a corporate body) or duly authorized representative; and if he is a joint venture, the names, surnames and signatures of all partners of the joint venture (if the partner is a corporate body, the authorized representative of the partner) shall be written herein.

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