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TRANSCRIPT
REQUEST FOR PROPOSAL
for appointment to a panel for the provision of Credit
Verification Services (Investigations) to the National Asset
Management Agency
(NAMA)
13th
December 2011
2
Table of Contents
1. Background............................................................................................ 3
2. Structure of Competition....................................................................... 3
3. Services Required.................................................................................. 4
4. Return of Tender Documents................................................................. 5
5. Communication...................................................................................... 6
6. Conflicts of Interest............................................................................... 6
7. Tender Process....................................................................................... 7
8. Pricing and Fees..................................................................................... 7
9. Completion of Tender............................................................................ 8
Schedule 1: Minimum Requirements........................................................... 11
Schedule 2: Award Criteria and Evaluation................................................. 13
Schedule 3: Format of Response.................................................................. 14
Schedule 4: The Services............................................................................. 19
Schedule 5: Standard CV Format................................................................ 22
Schedule 6: Draft Framework Agreement................................................... 23
Schedule A: The Services............................................................................ 37
Schedule B: Request for Tender.................................................................. 40
Schedule C: Form of Tender....................................................................... 42
Schedule D: Contract Order for Services.................................................... 44
3
1. BACKGROUND
The National Asset Management Agency (“NAMA”) was established by statutory
instrument on 21 December 2009 pursuant to the National Asset Management Agency
Act, 2009 (the “Act”). Under the Act one of the purposes of NAMA is for it or a NAMA
group entity (“NAMA Group Entities”) to acquire eligible bank assets from the five
participating institutions (those credit institutions which applied to and were designated
by the Minister for Finance as “Participating Institutions”). The majority of assets
which will be acquired are property related loans and associated security for such loans.
During 2010 and 2011, NAMA acquired €74bn of assets from Participating Institutions.
NAMA’s statutory powers include the holding of such bank assets, the provision of
finance through credit facilities or equity and the enforcement of any security in relation
to acquired assets. NAMA has contractual enforcement rights under the applicable
security documents.
NAMA operates as an independent commercial entity under the aegis of the National
Treasury Management Agency. Its objective, as set out in Section 10 of the Act, is to
obtain the best achievable financial return for the State from the loan assets acquired by it.
Further information about NAMA and the NTMA may be found on www.nama.ie and
www.ntma.ie.
2. STRUCTURE OF COMPETITION
2.1 The Request for Proposal (“RFP”) includes the attached Schedules and all
supporting and supplemental information.
2.2 This competition is for services which fall under Annex II B of Directive
2004/18/EC as implemented by the European Communities (Award of Public
Contracts) Regulations, 2006 and is therefore not being run under the open,
restricted, competitive dialogue or negotiated procedures.
2.3 This call for competition to tenderers (each a “Tenderer”) involves the
appointment of a number of Credit Verification Providers (each a “Provider”)
under a framework (the “Framework”) substantially in the form as set out in
Schedule 6. The services are more particularly described in Schedule 4 (the
“Services”).
2.4 It is envisaged that NAMA will appoint approximately 10 (ten) Providers to the
Framework should a sufficient number of suitable tenderers apply. NAMA
reserves the right to appoint more or less Providers to the Framework should it
deem it expedient to do so in its absolute discretion.
2.5 Appointment to the Framework, if awarded, will be awarded on the basis of the
most economically advantageous tenders submitted, determined using the award
criteria, weightings and evaluation specified in Schedule 2 (Award Criteria and
4
Evaluation). The successful Tenderer(s) will be admitted to the Framework
subject to the pre-conditions detailed in paragraph 9.4 (Pre-conditions to
Admittance to panel).
2.6 Appointment to the Framework does not constitute a commitment or guarantee by
NAMA to procure Credit Verification Services (the “Services”) from any
Provider on the Framework.
2.7 In operating the Framework, NAMA shall extend the opportunity to quote for
Services to the Provider(s) it believes, in its absolute discretion, best suited to
provide those Services. NAMA may take into account when choosing the most
appropriate Provider(s): relevant experience regarding the particular asset classes;
geographical location of the asset(s); appropriate track record; fees; availability;
and conflicts of interest.
2.8 The process for the eligibility and assessment of tenders is detailed subsequently.
3. SERVICES REQUIRED
3.1 Scope of Services
NAMA is seeking tenders for appointment to a panel for the provision of Credit
Verification Services to assist NAMA in verifying the accuracy and completeness
of disclosures made by NAMA debtors1 in order to provide NAMA with
assurance and verification as to the assets, liabilities and income of those debtors.
The Services are more particularly defined in Schedule 4 (The Services).
3.2 Duration of Framework
The Framework shall be for a minimum of 2 years, subject to annual review and
may be extended at NAMA’s sole discretion up to a maximum of 4 years.
3.3 Additional Services
NAMA may from time to time require Providers to undertake additional services
(“Additional Services”).
3.4 Sub-Contracting and Lead Provider
It is acknowledged by NAMA that Tenderers may have to draw on resources from
overseas offices, affiliates or partner firms in order to provide the Services as set
out in Schedule 4. NAMA will contract with the lead Provider who will be
responsible for the delivery of the Services. There must be a single point of
contact available to operate and communicate during Dublin working hours to
manage and coordinate the delivery of the Services.
1 “Debtor” means a person who is or was indebted to a Participating Institution under or in connection
with a credit facility.
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3.5 Other Providers
Nothing in the Framework or any other agreement will prevent NAMA from
appointing any other provider to undertake the Services.
4. RETURN OF TENDER DOCUMENTS
4.1 Closing Date
The closing date for receipt of tenders is Monday 16th
January 2012 at 14.00
hours (Dublin Time) (“Closing Date”).
4.2 Return of Tender
Tenders shall be submitted by e-mail to the following address:
Tenderers’ submissions must be in the format outlined in Schedule 3 (Format of
Response).
Tenders submitted by e-mail are on the strict understanding that the security of the
information provided, the form in which it is received, and the timely receipt by
the Closing Date, is the sole responsibility of the Tenderer.
4.3 English Language
The tenders and all related correspondence must be in the English language.
4.4 Late Tenders
Tenders received after the Closing Date will not be accepted by NAMA under any
circumstances. The Tenderer is fully responsible for the safe and timely delivery
of its tender.
4.5 Tendering Costs
Tenderers will bear all costs associated with the preparation and submission of
their tenders. NAMA will not be responsible and/or liable to pay for any costs,
expenses or losses which may be incurred by the Tenderer in the preparation or
submission of its tender, regardless of the conduct or outcome of the tender
process.
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5. COMMUNICATION
5.1 Additional Information and Queries
Requests for additional information and/or any queries in respect of this
competition, Request for Proposals and draft Framework Agreement, should be
submitted by e-mail not later than 15.00 hours (Dublin Time) on 5th
January
2012 to:
It is the Tenderer’s responsibility to ensure that all queries are received by
NAMA. Copies of all queries submitted and NAMA’s responses will be made
available to all Tenderers no later than close of business on Monday 9th
January
2012 via www.etenders.gov.ie.
5.2 Clarification of Tenders
To assist in the examination and comparison of tenders, NAMA may request
Tenderers to clarify certain aspects of their tenders.
5.3 Presentations / Interviews
Following receipt of tenders, meetings may be arranged with one or more
Tenderers at a location in Dublin to be advised by NAMA, for the purposes of
clarification or to demonstrate the credibility of its tender. Tenderers should draw
no conclusion from the interview of only some Tenderers and not others, as some
tenders may require clarification and others may not.
6. CONFLICTS OF INTEREST
Pursuant to section 45 (c) of the Act, any actual or potential conflict of interest, whether
professional or commercial, must be fully disclosed in writing to NAMA in the Tender
and on an ongoing basis throughout the tender process as soon as any actual or potential
conflict becomes apparent.
In the event of an actual or potential conflict of interest, NAMA will, in its absolute
discretion, decide on the appropriate course of action, which may involve the exclusion of
the relevant Tenderer from the process.
It will be a term of any contract awarded that the successful Tenderer indemnifies NAMA
for its additional costs and any other losses in the event that a successful Tenderer has to
cease acting for NAMA. NAMA may in its absolute discretion, decide to terminate a
contract because of an actual or potential conflict of interest or due to any actual or
potential conflict that was not disclosed by the Tenderer to NAMA either before a
contract was awarded or where an actual or potential conflict arose during a contract and
was not brought to the attention of NAMA.
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7. TENDER PROCESS
7.1 Right to Amend or Terminate the Tender Process
NAMA may in its absolute discretion:
(i) Change the basis of or the procedures (including the timetable) relating to
the tender process;
(ii) Reject any or all of the tenders;
(iii) Invite a Tenderer to proceed further at any stage of the tender process;
(iv) Furnish Tenderers with additional information in respect of any aspect of
the Services;
(v) Do such things or engage in such actions as it deems necessary to ensure
that the Services and the provision thereof, yield value for money; or
(vi) Abandon the tender process.
7.2 No Legal Obligations
Tenderers may not rely on anything contained in this RFP as a representation of
fact or promise regarding the future, nor as constituting the basis of a contract that
may be concluded in relation to the Services nor be used in construing any such
putative contract. No contractual relationship, implied or otherwise or any other
legal obligation will arise between a Tenderer and NAMA unless and until a
contract has been executed by NAMA and the successful Tenderer and any
conditions precedent to its effectiveness have been fulfilled.
8. PRICING AND FEES
Fees quoted (the “Fee(s)”) should be denominated in euro (€) and exclusive of VAT. The
VAT rate(s) applicable should be indicated separately. Should Fees not be denominated
in euro, they will be converted as of the Closing Date using the rate as published by
Bloomberg or such other source as NAMA deems appropriate at its sole discretion.
The Fees shall include expenses such as postage, photocopying, administration support
and all organisational overheads (but exclude VAT) but shall exclude third party legal
disbursements such as government fees and levies which shall be reimbursed at cost
against separately itemised invoices.
At no time shall Fees exceed that which are tendered, for the duration of the Framework
and shall be free from fluctuations in exchange rates and other costs and no price
variation shall be allowed for any rise or fall in the cost of labour, materials etc.
The Fees shall be free of any caveats or conditions, save as permitted under the
Framework Agreement. The treatment of Fees under the Framework is detailed therein.
8
Tenderers should note that NAMA may publish the Fees of the appointed Providers.
8.1 Clarification of abnormally high /low fees
If it is considered that a Tenderer’s fee proposal is abnormally high or,
alternatively, is abnormally low, the Tenderer may be requested, in writing, to
provide details of the constituent elements of the tender which NAMA considers
relevant and any failure to comply with the above requirements within a
reasonable timeframe, if confirmed, will exclude the Tenderer from further
consideration.
9. COMPLETION OF TENDER
9.1 Minimum Requirements
Tenderers must be able to meet the minimum requirements as detailed in Schedule
1 (Minimum Requirements) in order to proceed further in this competition.
9.2 Form of Response
Tenderers’ submissions must be in the form as set out in Schedule 3 (Format of
Response) and must contain each element as set out therein. Tenders which do not
contain all elements of Schedule 3 may be rejected.
9.3 Tender Evaluation
Only those tenders which meet the minimum requirements as detailed in Schedule
1 (Minimum Requirements) will be eligible for evaluation.
9.4 Pre-conditions to admittance to the panel
NAMA will request the preferred Tenderer(s), as a pre-condition to appointment
to the Framework to produce the following:
(a) A current Tax Clearance Certificate;
(b) Confirmation that the Tenderer will comply with the provisions of section
45 of the Act (see www.nama.ie for a copy of the Act);
(c) Proof of insurance pursuant to this RFP;
(d) Evidence of compliance with any other legal requirements as may be
required; and
(e) Two satisfactory client references in respect of services similar to the
Services from a government organisation, major credit institution and/or a
significant corporate client.
Appointment to the Framework will be conditional upon and subject to ratification
by the Board of NAMA.
9.5 Unsuccessful Tenders
9
NAMA will notify each unsuccessful Tenderer that its tender has not been
accepted. The lowest cost tender(s) will not necessarily be accepted and NAMA
reserves the right to reject any tender.
9.6 Interference
Tenderers who endeavour to influence, induce or interfere in any way with the
tender evaluation process or award decision shall have their tender rejected.
9.7 Confidentiality of Evaluation
After the official opening of tenders, information relating to the examination,
clarification and evaluation of tenders or award of the Framework will not be
disclosed to Tenderers or other persons not officially concerned with such process.
Information deemed to be confidential by NAMA will not be disclosed at any time
save as required by law.
Following the award of any contract under the Framework, NAMA may be
obliged to make public the Fees of the successful Tenderer(s). NAMA may make
such disclosure without consultation with those Tenderers. By submitting a tender,
each Tenderer expressly consents to such disclosure.
9.8 Alterations and Additions
Tenders may not be qualified and must be submitted strictly in compliance with
the RFP. Tenderers are not permitted to insert items in their tenders in addition to
those specifically requested pursuant to the RFP. If in NAMA’s opinion, any
tender deviates to a substantial degree from the requirements detailed in this RFP,
then that tender may be rejected.
Subject to clarifications, figures may not be altered or erased after the tender has
been submitted.
9.9 Complete Information
Tenders should be complete and all details requested should be submitted.
Incomplete tenders may be rejected.
9.10 Word Count/Page Limits
Tenderers should indicate the word count/page limit in such parts of their tender
where word count limits/page limits have been indicated. Where a word count
limit/page limit has been exceeded NAMA may elect, at its sole discretion, not to
give any consideration to (a) that full element of the tender where the word
count/page limit has been exceeded; or (b) that element of the tender exceeding
the specified word count/page limit. NAMA will award zero marks to the element
excluded from consideration.
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9.11 Tender Validity Period
Unless previously withdrawn, tenders shall remain valid for six calendar months
from the Closing Date (the “Tender Validity Period”). Prior to expiry of the
Tender Validity Period, NAMA may extend the Tender Validity Period for an
additional period of up to six months in its sole discretion from the day the Tender
Validity Period would have expired had it not been extended.
9.12 Governing Law and Jurisdiction
Any award made pursuant to this process will be governed by and construed in
accordance with the laws of Ireland and will be subject to the exclusive
jurisdiction of the Irish courts. In the event of any conflict between the terms of
any contract awarded under the Framework and any applicable laws and
regulations, the latter shall prevail.
11
Schedule 1
Minimum Requirements
A Tenderer must meet the following minimum requirements for its tender to be eligible
for evaluation.
1. Minimum Experience
1.1. Track record in performing the Services:
Tenderers must have been providing Credit Verification Services to at least 3
(three) major clients such as government organisations, credit institutions or other
significant corporate clients within the last three years. In no more than 1 A4
page for each of the three demonstrated clients, Tenderers must set out the
specific services provided to each client. The services must be of a similar nature
in terms of range and complexity as the Services required by NAMA. Tenderers
should indicate if the clients may be contacted as references.
1.2. Geographic Capabilities:
Tenderers (or overseas offices, affiliates or partner firms) must be capable of
performing the Services across multiple jurisdictions simultaneously. At a
minimum, Tenderers must have appropriate experience performing the Services in
all of the undernoted jurisdictions. Tenderers must demonstrate this by giving a
brief outline (no more than 1 A4 page) of the type of asset tracing services and/or
financial forensic review services carried out within the last five years in each
jurisdiction:
Jurisdiction Asset tracing investigations and/or financial forensic
review services undertaken
Ireland
United Kingdom
France
Germany
Portugal
Spain
USA
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1.3 Minimum Required Skills
Tenderers must demonstrate (by completing the table below in no more than 1
A4 page) they have the required suitably experienced/qualified staff/specialists in
order to undertake the Services in each of the below required jurisdictions.
Jurisdiction
Asset tracing
& investigation
specialists
(Yes/No)
Financial
forensic
investigators
(Yes/No)
Other specialists
(Indicate specialism/Enter
N/A where not applicable)
Ireland
United
Kingdom
France
Germany
Portugal
Spain
USA
2. Insurance
Tenderers must be able to show minimum professional indemnity (“PI”) insurance cover
of €2 million (or equivalent amount if in another currency) for each and every claim and
show that the geographical limits applicable to the policy are worldwide. A PI policy of
€2 million in the aggregate will not be accepted. Please note while this is the general
requirement for any Framework member, the Tenderer must be prepared to provide an
increased level of PI cover for large contracts on a case by case basis.
Each Tenderer must demonstrate that such cover is in place or that such cover will be
available if the Tenderer is successful. A signed letter/statement is to be provided with
the tender from the Tenderer’s insurance company as evidence of/or agreement to provide
such insurance should the Tenderer be admitted to the Framework.
13
Schedule 2
Award Criteria and Evaluation
Only those tenders that meet the applicable minimum requirements detailed in Schedule
1, will progress to be evaluated under the award criteria.
Award Criteria
The Framework, if awarded, will be awarded to the Tenderers who receive the highest
aggregate marks by reference to the award criteria below.
Tenderers must score at least 50% of the allocated marks for each of award
criterion, Process/Execution Methodology and Proposed Team in order to proceed
and be assessed under the award criterion, Fees.
Award Criteria Marks
Process/Execution Methodology 40
Proposed Team 40
Fees 20
Evaluation of Tenders
1. Those tenders which meet the Minimum Requirements will be examined by a
designated evaluation group.
2. Tenders will be evaluated under each of the award criteria, on a relative basis with
respect to other tenders received.
Proposed Team
The Services must be performed by those personnel as identified in the tender or other
similarly qualified staff in overseas offices, affiliates or partner firms.
Decisions Final and Binding
All decisions of NAMA relating to the evaluation of tenders shall be final and binding
upon Tenderers.
14
Schedule 3
Format of Response
1. General Information
The table below must be completed by the Tenderer. If the Tenderer plans to draw on the
resources from overseas offices, affiliates or partner firms, the lead Tenderer is
responsible for the delivery of the Services and is required to complete the table below.
1. Full Name
Sole Tenderer �
Lead Tenderer �
Address of Contact Office
Address of Other Offices
2. Previous Name(s) (if applicable)
3. Registered Address (if different)
4. Registration Number (if applicable)
5. Telephone
6. Fax
7. Single Point of Contact - Name &
details including e-mail address
8. E-mail Address:
Website Address:
9. Year Established
10. Legal Form
(Tick one)
� Company
� Partnership
� Joint Venture
� Other
(specify):
11. VAT Number
12. Parent Company (if applicable)
13. Ownership Structure
15
2. Minimum Requirements
Tenderers must include all those requirements as set out in Schedule 1 (Minimum
Requirements). As stated in section 9, paragraph 9.1 of the RFP, Tenderers must satisfy
these requirements in order to be considered further in this competition.
3. Award Criteria
3.1 Process/Execution Methodology - (40 marks)
(a) Tenderers must submit (in no more than 4 A4 pages) an explanation of how each
element of the Services as identified in Schedule 4 (The Services) will be
performed and delivered. Tenderers must set out their response under the
following headings which correspond with the Services schedule.
1. Identification of appropriate investigative strategy ;
2. Actions required to achieve the Primary Objective2 ;
a. Provision of asset tracing investigations
b. Provision of financial forensic review services
c. International reach/geographic capabilities (over and above
minimum requirements)
3. Communication and reporting to NAMA.
(24 marks)
(b) Tenderers must also provide four case studies undertaken in the previous three
years (anonymised if deemed appropriate) of previous engagements similar in
nature to that required under the Services. Each case study need not address all
elements of the Services but each element of the Service should be reflected in at
least one of the case studies. At least two of the case studies should cover multiple
jurisdictions. Case studies should be concise (no more than 2 A4 pages for each
case study) and address the following:
• The particulars and scope of the engagement including dates when
undertaken;
• The staff/specialists used to undertake the engagement and the number of
personnel assigned;
• The outcome;
• The time scale for conduct and completion of the engagement and whether
targets were achieved; and
• Reporting to the client.
Please note that NAMA may request sight of the corresponding report for each of
the case studies in order to verify the credibility of the case study.
(16 marks)
2 Refer to Schedule 4 (The Services) for a definition of the Primary Objective.
16
3.2 Proposed Team – (40 marks)
Tenderers should provide an overview (no more than 5 A4 pages to include
diagrams, but excluding CVs) of the team that will be responsible for the
delivery of the Services. Tenderers should outline the following in respect of the
team:
• details of the single point of contact/team leader;
• details of all resources proposed to provide the Services;
• the professional qualifications and relevant expertise of the core team which
must include:
- Asset tracing and investigations specialists;
- Computer technology experts;
- Financial forensic investigators; and
- Any other staff/specialists required to perform the services. (Tenderers must provide CVs for the core team in the format set out in Schedule 5.)
• demonstrate how the Services will be allocated and co-ordinated between the
different members of the core team and also how the team will liaise and
coordinate with overseas offices, affiliates or partner firms for all jurisdictions
(in particular in the UK, France, Germany, Portugal, Spain and the USA).
• Tenderers should also indicate their reporting arrangements to NAMA.
Note: Where Tenderers do not undertake all the Services in-house they must
provide details of all overseas offices, affiliates or partner firms proposed to
carry out that part of the Services being sub-contracted in any of the
jurisdictions identified in Schedule 1 Minimum Requirements.
3.3 Fees (20 marks)
Tenderers are reminded of the conditions detailed in Section 8 (Pricing and Fees)
of this RFP.
The fees will be evaluated using the formula below.
Where:
‘Tender Fee’ is the Fee in the Tender being evaluated.
‘Lowest Tender Fee’ is the lowest Fee received.
‘Highest Tender Fee’ is the highest Fee received.
‘Weighting’ is 10 for Ireland, 5 for the UK and 5 for Other Jurisdictions.
WeightingderFeeHighestTen
erFeeLowestTendTenderFee×
−
−
1
17
Tenderers must complete all the tables below in euro (ex VAT). Please note that the
hourly rates must reflect hourly staff costs and organisational expenses (postage,
photocopying etc) but should not include outlays (Land Registry fees, etc).
Failure to complete in accordance with the tables specified may result in disqualification.
Table 1 - Ireland (10 Marks)
Grade Weighting Hourly Rate in Euro
(ex VAT)
Partner (Managing Partner/Managing Director)
(or equivalent)
5
Director (or equivalent) 20
Manager (or equivalent) 35
Junior (or equivalent) 40
Fee = Total weighted figure 100 €
Table 2 - UK (5 Marks)
Grade Weighting Hourly Rate in Euro
(ex VAT)
Partner (Managing Partner/Managing Director)
(or equivalent)
5
Director (or equivalent) 20
Manager (or equivalent) 35
Junior (or equivalent) 40
Fee = Total weighted figure 100 €
18
Table 3 - Other Jurisdictions (5 Marks)
Tenderers must provide a fixed (blended) hourly rate that will apply to Services carried
out in the undernoted jurisdictions.
Jurisdiction Hourly Rate in Euro (ex VAT)
France
Portugal
USA
Germany
Spain
Fee = average hourly rate (total of hourly
rates divided by 5)
€
4. DECLARATION BY TENDERER
To be signed by the authorised representative of the Tenderer and submitted in pdf format
along with the completed tender.
I hereby confirm that the foregoing information is correct and accurate.
(The Tenderer by signing this document declares it has read and fully understood this
RFP and has raised any queries or clarifications it may have had arising from the RFP
prior to the submission of its tender)
Signed: ………………………………………………………………………….
Capacity………………..………………………………………………………..
Date…………………………………………………………..…………………
19
Schedule 4
The Services
The Services required by NAMA shall include but may not be limited to the following and
shall include all other services that are reasonably ancillary and incidental thereto:
Primary Objective
To conduct a Credit Verification Review (the “Services”) of NAMA
debtors’ financial positions to verify the accuracy and completeness of
disclosures made by those debtors to NAMA in order to provide
NAMA with assurance as to the assets, liabilities and income of those
debtors.
Item Scope of Work
1 Identification of
appropriate
investigative
strategy
With the benefit of information available to NAMA, and/or the
Participating Institutions, draw on own experience to determine an
appropriate strategy and scope of the Services in order to achieve
the Primary Objective efficiently and in a cost effective manner.
20
2 Actions required
to achieve the
Primary
Objective
The Services may include, but not be limited to:
Asset tracing investigations
Develop appropriate strategies to identify and locate assets locally
and worldwide. Assets may be real or intangible properties and
may be held in offshore vehicles and/or in complex corporate
structures.
Identifying, gathering and analysing information from public and
discreet sources to provide a greater understanding of a debtor’s
assets and interests and to inform the overall credit management
strategy.
Specific services that may be required to perform an asset tracing
investigation include but are not limited to:
• Review of publicly available data sources and asset registers
(including property, corporate and lifestyle registers).
• Review of corporate information obtained through public
records searches including audited accounts.
• Conduct enquiries into lifestyle, social and business activities of
debtors.
Financial forensic review services
Apply investigative know how and forensic accounting skills to:
• Understand and analyse available financial and banking data to
ensure full understanding and visibility on a debtor’s credit
standing.
• Understand multi-layered complex personal, corporate and trust
structures.
In particular, provision of the following services may be required:
• Review of company books and records including bank
statements and primary ledgers.
• Conduct interviews with company management and professional
advisors including the debtor’s advisors. The Provider shall
document all such meetings.
• Provision of expert witness reports.
• Computer forensic techniques to support investigations.
• Provision of any other forensic/corporate intelligence services
ancillary to the above that may be required by NAMA from time
to time.
21
International reach
• Ability to perform the above services on a worldwide basis
through an international network or partnering with other
firms/agents.
3 Communication
with NAMA
Communicate findings to NAMA on a regular basis or as
otherwise agreed with NAMA.
4 Other services • The Provider must be available to attend meetings/conference
calls as necessary. The frequency of which will be case
dependent.
• Identify where information is not publicly available and where
an individual’s consent is required to access same. Provide
relevant documentation to NAMA to enable gathering of
requisite consents.
22
Schedule 5
Standard CV Format
1. Position in the Tenderer
Organisation:
2. Full Name:
3. Academic and Professional
Qualifications (including dates):
4. Membership of Professional
Bodies:
5. Other Skills:
6. Years in Current Employment:
7. Years undertaking work similar to
the Services:
Years undertaking work similar to
the Services with current
employer/team:
8. Key Qualifications:
(Précis of key experience and
areas of expertise)
9. Specific Expertise relevant
to the Services:
(In chronological order with start and
end dates specified)
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Schedule 6
Draft Framework Agreement
DATED the day of _______________ 2012
BETWEEN:
NATIONAL ASSET MANAGEMENT AGENCY (“NAMA”) of Treasury Building,
Grand Canal Street, Dublin 2, Ireland
AND
(the “Provider”) having its principal place of
business at [●].
WHEREAS:
1. NAMA may require the Provider to perform Services from time to time pursuant to
this Agreement.
2. The Provider is engaged in the business of providing the Services and has the
necessary skill, knowledge and experience in that field.
3. In reliance upon that skill, knowledge and expertise, NAMA wishes to enter into
agreements with a Provider (collectively the “Providers”), wherein the Providers
agree to perform the Services in accordance with the terms and conditions as set out
in this Agreement if and when requested by NAMA in accordance with the procedure
set out herein.
OPERATIVE PROVISIONS:
1. Definitions
“Agreement” means this agreement and the Schedules;
“Change of Control” means a significant change either directly or indirectly in the
ownership and management of the Provider which results in a change in the management
policies, whether through ownership of equity, by contract, or otherwise;
24
“Commencement Date” means [ ];
“Contract Order” means the terms and conditions of contract between NAMA and the
Provider in respect of specific Services which will be in the form set out in Schedule D;
“Fee(s)” means the fee agreed between the parties in respect of each Service identified in
the relevant Contract Order;
“Form of Tender” means the tender form issued by NAMA with the Request for Tenders
for Services to be completed by the Provider in the form set out in Schedule C;
“Force Majeure” shall in relation to either party include any event in Ireland or in any
other jurisdiction in which the Services are performed beyond the reasonable control of
that party including act of God, war, riot, civil commotion, malicious damage, strike,
lock-out, go slow, accident, fire, flood or storm which could not have been avoided by
taking reasonable precautions;
“Regulator” means the relevant professional or supervisory authority to which the
Provider is subject to or is a member;
“Request for Tender” means the request issued by NAMA for Services in the form set out
in Schedule B;
“Services” means the services, which shall, subject to Clause 3, be performed by the
Provider pursuant to this Agreement as set out in Schedule A;
“Term” means the duration of this Agreement as set out in Clause 2.
2. Duration
This Agreement will come into effect on the Commencement Date and will continue in
force for a period of 2 years, subject to annual review but may be extended for a
maximum of 4 years subject to the sole discretion of NAMA.
3. Tender Procedure
3.1 NAMA is not obliged under this Agreement to issue any Request for Tender or
award any Contract Order for Services to the Provider. Where a Request for
Tender is issued, NAMA is not obliged to accept the lowest Fee proposal or any
tender.
25
3.2 If and when Services are required, NAMA may issue a Request for Tender specific
to those Services to such number of Providers as it considers necessary to ensure a
competitive process. NAMA may take into account when choosing the most
appropriate Providers, relevant experience regarding the particular asset classes,
geographical location of the assets, appropriate track record, fees, capacity,
availability and conflicts of interest. Each of the Providers so requested will
submit in writing a duly completed Form of Tender and other additional
information in accordance with the requirements set out in the Request for Tenders.
3.3 Each Tender received by the deadline date for receipt of Tenders will be assessed
on the basis of the most economically advantageous tender received. The award
criteria, comprising most economically advantageous tender will include criteria
linked to the subject matter of the Services required, including, without limitation
experience in relevant asset searches, fees, team and past performance (if any) of
previous Services. NAMA will establish award criteria in respect of each
competition for the award of Services in advance and each Provider will be notified
in the Request for Tender of such criteria, together with the relative weighting
which will be allocated to each criterion.
3.4 NAMA will not be liable to the Provider for any costs or expenses incurred by it in
complying with the tender procedure regardless of outcome including
abandonment of a tender procedure.
3.5 NAMA may in its sole discretion award a Contract Order to the Provider without
having issued a Request for Tender if it considers it necessary or expedient to do so
having regard to the time for delivery of the Services, availability of resources,
conflicts of interest and such other matters as it considers relevant.
4. Contract Orders
NAMA will issue an executed Contract Order for the Services, which will form part of
and be subject to the terms and conditions of this Agreement. The Contract Order must be
signed by an authorised representative of NAMA and the Provider.
5. Material Change
5.1 NAMA may, at any time during the Term, review the technical, economic and
financial ability of the Provider to ensure that the Provider has the technical,
economic and financial ability to perform the Services.
5.2 NAMA may, from time to time, request the Provider to provide confirmation that
no material change in the technical, economic or financial capacity of the Provider
has occurred.
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6. Services
6.1 This Agreement governs the overall relationship between NAMA and the Provider
with respect to the provision of Services. NAMA is entitled, but not required, at
any time during the Term to procure Services under the procedures set out in
Clause 3.
6.2 In respect of Services for which the Provider has been appointed pursuant to a
Contract Order, the Provider agrees that it shall, at all times, act in good faith and
exercise the level of skill and care reasonably expected of a professional service
provider regularly undertaking services of the type provided under the Contract
Order. The Provider will carry out the Services with the necessary resources and in
reasonable time.
6.3 The Provider shall, as and when instructed by NAMA, be available to attend
meetings with NAMA staff at NAMA’s offices in Dublin as and when reasonably
required regarding the Services being provided and shall co-ordinate with such
other Providers of NAMA as instructed by NAMA.
6.4 NAMA may appoint one or more Providers. The terms of appointment of the
Provider shall consist of the terms of (i) this Agreement; and (ii) any other terms
set out in the Contract Order, which shall be at the sole discretion of NAMA.
6.5 NAMA reserves the right not to proceed with Services awarded under a Contract
Order at any time for any reason.
6.6 NAMA may request a Provider to undertake additional services (“Additional
Services”) which are reasonably ancillary to the original Services under a Contract
Order, should NAMA deem it expedient to do so at its sole discretion.
7. Key Personnel
7.1 The Provider agrees, in respect of any Services for which it is appointed under a
duly executed Contract Order, that the Services will be provided by the persons
identified by the Provider and no change in personnel will be made without prior
consent of NAMA.
7.2 Where any person identified by the Provider is absent for any period and their
absence impacts substantially on the performance of the Services, the Provider
shall, at no additional cost to NAMA, provide a replacement member whose
qualifications and experience are to the satisfaction of NAMA and correspond as
closely as practicable to the qualifications of that person whom they are required to
replace.
27
7.3 The Provider shall remove from the provision of the Services any employee or
professional, technical or clerical staff whose performance is deemed
unsatisfactory by NAMA.
7.4 The Provider shall be responsible for making all deductions for tax, levies and
social insurance, as applicable, from the remuneration which it pays to its
employees and agents and the Provider agrees to indemnify NAMA in respect of
any claims or demands which may be made by the relevant authorities against
NAMA arising from the Provider’s non-compliance with its legal obligations
relating to any taxes, levies and other contributions relating to the performance of
the Services. 8. Indemnity
8.1 The Provider shall be liable for and will indemnify NAMA and its respective
officers, employees and agents from and against all direct losses, claims, demands,
damages or expenses (excluding any consequential losses) which NAMA may
suffer due to the negligence, breach of contract, breach of duty, recklessness, bad
faith, wilful default or fraud of the Provider and its employees or agents. The
Provider shall further be liable to pay the full amount of any deductibles or excess
amounts arising under the insurance policies referred to in clause 12.2, in respect of
each and every claim made.
8.2 The Provider’s liability under clause 8.1 shall not exceed €2 million for each and
every claim, save in respect of:
(i) death or personal injury or loss of or damage to property caused by its
negligence or the negligence of its employees or agents;
(ii) any other liability which by Law cannot be excluded or limited; or
(iii) any higher level of liability NAMA instructs the Provider to obtain pursuant to
clause 12.2 in respect of any appointment under this Agreement. The
Provider’s liability shall in that instance not exceed such higher level of
liability.
9. Payment, Fees and Expenses
9.1 The Fees for any Services provided pursuant to this Agreement shall be set out in a
Contract Order. Without prejudice to Fees being a criterion under a Request for
Tender, the Fee bid shall not exceed, under any circumstances, the fee proposal
submitted by the Provider under its original tender to be admitted to this
Agreement.
9.2 NAMA may request the Provider to provide a quotation for:
• A fixed fee;
• An incentive fee based on a percentage of the recoveries made to NAMA;
or
• A hybrid fee incorporating fixed and variable elements.
28
At no time, as part of a fixed Fee proposal or otherwise, may a Fee be quoted
where that Fee exceeds the fixed hourly rates quoted in any successful Form of
Tender.
9.3 Where NAMA requests a Fee other than one based on hourly rates, the Provider
will provide the quotation within a reasonable timeframe specified by NAMA.
9.4 NAMA reserves the right to further negotiate Fees and seek further discounts after
selection of a Provider to provide services under a Contract Order.
9.5 The Provider shall maintain records of all Fees incurred in respect of the Services
in electronic format (or such other format specified by NAMA). The records
maintained by the Provider shall contain itemised details of all Services
undertaken, the applicable Fees and relevant dates. NAMA shall be entitled to
inspect the Provider’s Fee records relating to the Services upon providing
reasonable notice of such inspection to the Provider.
9.6 Fees shall include expenses such as postage, photocopying, administration support
and all organisational overheads.
9.7 The Fee shall exclude third party legal disbursements such as government levies,
Land Registry fees or any other government or otherwise set costs in respect of
searches ordered in any jurisdiction. Such costs shall be reimbursed at cost against
separately itemised invoices.
9.8 Reasonable expenses (outside that which are incorporated into the Fees) may be
approved by NAMA on a case by case basis. NAMA reserves the right, in its
absolute discretion, not to pay or reduce payment of expenses, where it deems such
expenses are excessive or unnecessary. All expenses claimed must be supported
by receipts or other vouching documentation. NAMA will not pay for expenses
which cannot be verified.
9.9 All payments under this Agreement shall be subject to the Prompt Payments of
Accounts Act 1997 (as amended by the European Communities (Late Payment in
Commercial Transactions) Regulations 2002 (S.I. 388 of 2002).
9.10 NAMA may publish the Fee of the Providers.
9.11 All payments for Services will be subject to Professional Services Withholding
Tax.
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10. Representations and Warranties
10.1 The Provider represents and warrants each and every day of the Term of this
Agreement that:
10.1.1 it has all necessary power and authority to execute, deliver and perform its
obligations under this Agreement;
10.1.2 the execution, delivery and performance by it of this Agreement has been
authorised in accordance with all necessary action on its part;
10.1.3 each of the obligations of the Provider under this Agreement constitutes its
legally binding obligation;
10.1.4 it shall perform the Services in accordance with this Agreement with all
independent professional care, skill and judgment to be expected of a
professional, qualified and experienced in carrying out services of a similar
nature, size and scope;
10.1.5 it shall perform the Services diligently and in good time and with all
necessary resources;
10.1.6 in performing the Services, the Provider shall not infringe the intellectual
property rights of any third party;
10.1.7 the Services shall be performed in compliance with all applicable laws and
applicable professional conduct rules, standards, regulations and laws
which apply to the Provider;
10.1.8 all written information furnished by or on the Provider’s behalf to NAMA
in connection with or pursuant to this Agreement and any Contract Order
was true and accurate when given (and continues to be so) in all material
respects and there are no other facts or matters of which the Provider is
aware, after due and careful enquiry, the omission of which would have
made or would make any such information misleading, inaccurate or untrue
in any material respect, and all expressions of expectation, intention, belief
and opinion contained therein were honestly made on reasonable grounds
after due and careful enquiry;
10.1.9 if applicable to the Provider, it is regulated by or, as the case may be, is a
member of the Regulator;
10.1.10 save as disclosed to NAMA in writing, the Provider is not currently the
subject of, and has not been the subject of during the three years
immediately preceding the date of this Agreement, any enforcement action
by the Regulator (if applicable) or litigation by a past or present client; and
10.1.11 the Provider maintains and enforces a written code of ethics that comports
with the requirements of the Regulator (if applicable) and applicable law
30
and which prohibits the misuse of material non public information by the
Provider and any person associated with the Provider.
11. Performance and Inspection
11.1 NAMA or any person acting on its behalf shall be entitled to inspect and review the
performance by the Provider of the Services and/or to arrange for an independent
party to inspect and review the performance of the Services during the term of the
relevant Contract Order.
11.2 If, as a result of any such inspection or review, NAMA is reasonably of the opinion
that the particular Services are or were not being performed in accordance with this
Agreement and the relevant Contract Order, NAMA may so inform the Provider in
writing. The Provider shall immediately take such steps as may be necessary to
comply with its obligations within the period stipulated by NAMA. Any
notification under this clause shall not constitute a waiver of any term or condition
of this Agreement and shall be without prejudice to any of NAMA’s rights under
this Agreement or otherwise.
12. Insurance
12.1 The Provider shall have and maintain all insurances required to be maintained by it
pursuant to applicable laws.
12.2 Without prejudice to Clause 12.1, the Provider shall have and maintain the
following insurance cover with a well-established and reputable insurance office or
underwriter of repute:
12.2.1. Professional indemnity insurance of €2 million (or equivalent if in another
currency) for each and every claim and show that the geographical limits
applicable to the policy are worldwide covering all of the Provider’s operations
under this Agreement and for a period of six years from the termination of this
Agreement without prejudice to any claims notified by NAMA prior to this date;
12.2.2 Public liability insurance covering all of the Provider’s operations under
this Agreement; and
12.2.3 Employer’s liability insurance covering all of the Provider’s operations
under this Agreement.
12.3 Subject to Clause 8, the Provider must in respect of any appointment under this
Agreement and upon NAMA’s reasonable instruction, increase the level of
insurance cover under the policies referred to in Clause 12.2.
12.4 Prior to the execution of this Agreement and at any time thereafter if requested by
NAMA the Provider shall provide NAMA with certificates of insurance (or letters
of confirmation from its insurance broker) which specify the levels and terms of
insurance cover maintained by the Provider. The Provider shall notify NAMA
immediately in the event of any lapse of the insurances or if the insurances cease to
be available.
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13. Assignment, Sub-Contracting and Novation
It is acknowledged by NAMA that the Provider may have to draw on services from
overseas offices or affiliates in order to perform the Services. The Provider will not
transfer or assign directly or indirectly any part of this Agreement or any Contract Order
without the prior written consent of NAMA. It is acknowledged by the Provider that it
remains responsible and liable for the performance of the Services at all times regardless
of who it appoints to carry out the Services or part thereof. The Provider shall
immediately put NAMA on notice of any Change of Control affecting the Provider.
14. Confidentiality
14.1 The Provider agrees to keep (and to ensure its employees and agents keep)
confidential all information, documentation and other matters arising or coming to
its attention (whether written or oral and whether disclosed to the Provider by other
means whether directly or indirectly) in connection with the provision of Services
and shall not at any time, for any reason, disclose or permit such information to be
disclosed to any third party except as permitted hereunder to enable the Provider to
carry out its duties and obligations under this Agreement or with the prior written
consent of NAMA or where required to do so as a matter of law.
14.2 The Provider shall procure that its agents having access to such information shall
be subject to the same obligations as the Provider and shall enter into a suitable
secrecy agreement in the form approved by NAMA, or, insofar as that is not
reasonably practicable, the Provider shall take all reasonable steps to ensure that its
agents are made aware of and perform such obligations.
14.3 The obligations in this Clause are in addition to and not in substitution for the
provisions of section 202 of the National Asset Management Agency Act 2009.
15. Electronic Communications and Storage of Data
15.1 The Provider shall use commercially reasonable procedures to check for the then
most commonly known viruses before sending information electronically to
NAMA or to any other third person on behalf of NAMA while performing the
Services.
15.2 During the Term, the parties may from time to time communicate electronically
with each other. The Provider shall ensure that all electronic communications
containing commercially sensitive data or personal data are encrypted during
transmission unless otherwise agreed in advance by NAMA or its agents.
15.3 The Provider agrees that any storage of commercially sensitive or personal data
outside of its main network environment shall be on encrypted laptops only and
never on USB keys or other removable storage devices unless by specific written
agreement with NAMA.
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16. Conflicts of Interest
16.1 The Provider confirms that all actual and potential conflict of interests (whether
legal or commercial or other interests) will be disclosed in full in any Tender in the
form set out in Schedule C or otherwise prior to the execution of any Contract
Order and it will comply in all respects with NAMA’s requirements on
confidentiality and conflicts of interest.
16.2 In the event that an Provider declares a conflict or potential conflict of interest in
accordance with clause 16.1, NAMA may, in its absolute discretion, request further
information from the Provider on the interest, impose conditions on the Provider
which must be agreed in order to participate in a Tender competition (which may
include appropriate measures to protect the interests of NAMA) and/or may
exclude the Provider from the Agreement for the purposes of any Tender
competition.
16.3 During the Term, the Provider shall disclose to NAMA within forty-eight hours of
it coming to its attention, any conflict of interest or potential conflict of interest
which it, or any of its affiliates, or any partner, officer, director or employee of the
Provider may have in performing the Services.
16.4 In the event of any conflict or potential conflict of interest arising during the Term,
NAMA shall, in its absolute discretion, decide on the appropriate course of action.
Where NAMA considers that the situation does not give rise to a conflict of interest
or that the conflict of interest is immaterial, it may permit the Provider to continue
to provide the Services. Where NAMA considers the situation to give rise to a
material conflict of interest, it may, at its sole discretion, permit the situation to
continue subject to appropriate safeguards being agreed between NAMA and the
Provider and NAMA being satisfied that those safeguards have been put in place.
Failure to comply with NAMA’s requirements in this regard may lead to
termination of any Contract Order and this Agreement.
16.5 The Provider shall be responsible for the observance of this Clause 16 by each of
its partners, officers, directors and employees.
16.6 The Provider agrees to indemnify NAMA for any additional costs and any other
losses, damage, expenses (including legal expenses) reasonably incurred by
NAMA in the event that NAMA terminates this Agreement/and or a Contract
Order due to an actual or potential conflict of interest on the part of the Provider
which was not, but should have been declared to NAMA.
17. Audit of Services
The Provider shall comply with the terms of section 45 of the National Asset
Management Agency Act 2009 regarding professional standards and audits. NAMA may
engage auditors, from time to time, to carry out an audit of the books, accounts and other
financial statements of the Provider in so far as they relate to the Services and the
Provider shall afford access to the auditors to all such records, documents and accounts
relevant to the Services as may reasonably be requested.
33
18. Data Protection Acts
18.1 The Provider shall ensure that it shall at all times comply with the provisions and
obligations imposed on it by the Data Protection Acts 1988 and 2003 (the “DPA”)
and any other applicable data protection legislation.
18.2 Without prejudice to the generality of Clause 18.1, in the event the Provider
processes data as a Data Processor (as defined in the DPA) for NAMA, it hereby
agrees and undertakes that it shall:
18.2.1 not process (including obtain, retain, disclose or transfer) any data save in
so far as necessary in order to perform the Services; and
18.2.2 apply appropriate technical and security measures to protect any such data
against unauthorised or unlawful processing (including obtaining,
retaining, disclosing or transferring) and against accidental loss,
destruction or damage in accordance with the requirements of section
2(1)(d) and 2C of the DPA.
18.3 The Provider hereby indemnifies NAMA against all claims and proceedings and all
liability, loss, costs and expenses incurred in connection therewith made or brought
by any person in respect of any loss, damage or distress caused to that person as a
result of the Provider’s unauthorised and/or unlawful processing or the Provider’s
destruction and/or damage to any personal data obtained from (or held by the
Provider or its personnel on behalf of) NAMA, save where such destruction was
carried out at NAMA’s request.
19. Termination
19.1 NAMA may, without prejudice to any other right or remedy, terminate this
Agreement or a Contract Order upon serving written notice to the Provider to take
effect on the day of its service or upon such other date as may be specified therein
if, in the opinion of NAMA:
19.1.1 the Provider is incompetent or fails to perform any element of the Services
to NAMA’s satisfaction, or conducts itself or its staff in a manner which
NAMA considers to be incompatible with the performance of the Services;
19.1.2 the Provider fails to comply with any obligation of this Agreement or
Contract Order;
34
19.1.3 any proprietor or partner comprising the Provider, it being a firm or
partnership, becomes bankrupt or makes any composition or arrangement
with a conveyance or assignment for the benefit of its creditors or any
application is made under any bankruptcy act to which any proprietor or
partner within the Provider is subject for a sequestration of its estate, or a
trustee is appointed by him on behalf of its creditors, or if the Provider,
being a company, enters into voluntary or compulsory liquidation (except
for the purposes of reconstruction or amalgamation) or has any receiver or
manager or administrative receiver appointed over any of its assets or
carries on business under an examiner or administrator;
19.1.4 the Provider is found guilty by the Regulator or a competent authority of
any fraudulent act or criminal activity or is guilty of gross negligence in
the performance of this Agreement; or
19.1.5 the Provider undergoes a Change of Control which in NAMA’s opinion is
not consistent with the Provider’s continued presence in the Framework.
19.2 On termination of this Agreement and/or any Contract Order by NAMA for any
reason:
19.2.1 the Provider shall do no further work to perform any Services (except as
instructed in writing by NAMA terminating the Agreement/Contract
Order);
19.2.2 NAMA may complete the Services (or part thereof) itself, or employ
others to do so, and may use or make available to others its rights to
materials prepared by the Provider;
19.2.3 the Provider shall be entitled to payment for such Services properly
completed in accordance with this Agreement and Contract Order up to the
date of termination less any amounts due or payable to NAMA pursuant to
this Agreement/Contract Order or arising from such termination or losses
incurred by NAMA as a result of such termination and such payments for
Services duly performed shall be the only payment to which the Provider
shall be entitled;
19.2.4 if the Provider has breached this Agreement/Contract Order, NAMA may
deduct from any amount due or to become due to the Provider its
reasonable estimate of the additional cost NAMA may incur in obtaining
the Services from another party because of the breach or termination;
19.2.5 the provisions of this Clause 19 (Termination) shall be without prejudice
to any other rights or remedies which NAMA may have; and
19.2.6 NAMA shall not be liable to the Provider for any losses suffered or
incurred by the Provider arising out of or in connection with the
Agreement for any reason.
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20. Force Majeure
20.1 Neither party will be liable to the other nor deemed in default under this
Agreement/Contract Order if and to the extent that such party’s performance of this
Agreement/Contract Order is prevented by reason of Force Majeure.
20.2 The Force Majeure shall be deemed to commence when the party declaring Force
Majeure notifies the other party of the existence of the Force Majeure, and shall be
deemed to continue as long as the results or effects of the Force Majeure prevent
the party from resuming performance in accordance with this Agreement/Contract
Order. If either party is delayed at any time by Force Majeure, then the delayed
party shall notify the other party in writing of such delay within 48 hours.
21. Waiver
No right or remedy given to NAMA under or pursuant to any provision of this
Agreement/Contract Order will, whether or not exercised and notwithstanding any
additional waiver, preclude the exercise by NAMA of any other right or remedy
hereunder, nor will it preclude the exercise by NAMA of any right or remedy to which it
might be otherwise entitled under common law or under statute.
22. Variations
Variation of this Agreement is valid only if it is in writing and signed by an authorised
representative of each party.
23. Severance
Each of the provisions of this Agreement is severable and distinct from the others and if,
at any time, one or more of such provisions becomes invalid, illegal or unenforceable, the
validity and legality or enforceability of the remaining provisions will not in any way be
affected or impaired thereby.
24. Notices
Any notice given by NAMA to the Provider under this Agreement or a Contract Order
may be given by sending the notice by hand or by registered post addressed to the
Provider at the following address:
[ ]
36
Any notice to be given by the Provider to NAMA may be given by sending the notice by
hand or by registered post addressed to NAMA at the following address:
Head of Credit and Risk
National Asset Management Agency
Treasury Building
Grand Canal Street
Dublin 2
Ireland
Notice by registered post or by hand shall be deemed to have been delivered on the day of
delivery.
25. Governing Law
This Agreement and any Contract Order will be governed by and construed in accordance
with the laws of Ireland. Each of the parties hereto submits to the non-exclusive
jurisdiction of the Courts of Ireland.
Signed for and on behalf of the
National Asset Management Agency
Authorised Signatory
Signed for and on behalf of
[Provider]
Authorised Signatory
37
_______________________________________________________________________
Schedule A
The Services
The Services required by NAMA shall include but may not be limited to the following and
shall include all other services that are reasonably ancillary and incidental thereto:
Primary Objective
To conduct a Credit Verification Review (the “Services”) of NAMA
debtors’ financial positions to verify the accuracy and completeness of
disclosures made by those debtors to NAMA in order to provide NAMA
with assurance as to the assets, liabilities and income of those debtors.
Item Scope of Work
1 Identification of
appropriate
investigative
strategy
With the benefit of information available to NAMA, and/or the
Participating Institutions, draw on own experience to determine an
appropriate strategy and scope of the Services in order to achieve
the Primary Objective efficiently and in a cost effective manner.
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2 Actions required
to achieve the
Primary
Objective
The Services may include, but not be limited to:
Asset tracing investigations
Develop appropriate strategies to identify and locate assets locally
and worldwide. Assets may be real or intangible properties and
may be held in offshore vehicles and/or in complex corporate
structures.
Identifying, gathering and analysing information from public and
discreet sources to provide a greater understanding of a debtor’s
assets and interests and to inform the overall credit management
strategy.
Specific services that may be required to perform an asset tracing
investigation include but are not limited to:
• Review of publicly available data sources and asset registers
(including property, corporate and lifestyle registers).
• Review of corporate information obtained through public records
searches including audited accounts.
• Conduct enquiries into lifestyle, social and business activities of
debtors.
Financial forensic review services
Apply investigative know how and forensic accounting skills to:
• Understand and analyse available financial and banking data to
ensure full understanding and visibility on a debtor’s credit
standing.
• Understand multi-layered complex personal, corporate and trust
structures.
In particular, provision of the following services may be required:
• Review of company books and records including bank
statements and primary ledgers.
• Conduct interviews with company management and professional
advisors including the debtor’s advisors. The Provider shall
document all such meetings.
• Provision of expert witness reports.
• Computer forensic techniques to support investigations.
• Provision of any other forensic/corporate intelligence services
ancillary to the above that may be required by NAMA from time
to time.
39
International reach
• Ability to perform the above services on a worldwide basis
through an international network or partnering with other
firms/agents.
3 Communication
with NAMA
Communicate findings to NAMA on a regular basis or as
otherwise agreed with NAMA.
4 Other services • The Provider must be available to attend meetings/conference
calls as necessary. The frequency of which will be case
dependent.
• Identify where information is not publicly available and where
an individual’s consent is required to access same. Provide
relevant documentation to NAMA to enable gathering of
requisite consents.
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Schedule B
Request for Tender
On National Asset Management Agency Letterhead
To: [insert Provider’s name and address]
Date:
Services Reference:
Further to the Agreement dated [ ] 201[] ,
the National Asset Management Agency (“NAMA”) hereby requests you to submit a Tender in
respect of the following Services:
……………………………………………………………………………………………………
…
…………………………………………………………….
by no later than ……………………………………………….201[ ]
1. The Services
The Services required are as per Schedule A (The Services)
2. Award Criteria
The Services shall, if awarded, be awarded to the most economically
advantageous tender comprising the following criteria:
[Insert required criteria]
41
We look forward to receipt of your detailed Tender. Should you have any queries in
relation to this Request for Tender please direct such inquires to:
[Insert details of NAMA contact]
Yours faithfully,
________________________
National Asset Management Agency
42
Schedule C
Form of Tender
[On the Letterhead of Provider]
Services Reference:
To: National Asset Management Agency
Dear Sirs
1. Having examined the Request for Tender for the execution of services (“Services”) we
enclose our Tender for the Services including:
(i) [●;
(ii) [●;
(iii) [●;
(iv) [●.
2. We offer to execute and complete the Services in conformity with the Agreement dated [
] 201 for the fee as set out herein (the “Fee”).
3. We confirm that any material change to our business model, management capabilities,
performance, key people, systems or operational standards has been notified to NAMA in
accordance with the terms of the Agreement.
4. We undertake, if our Tender is accepted, to commence the Services and to complete the
Services as directed by NAMA.
5. We acknowledge that a binding contract between us will not be concluded unless and
until we have received written acceptance by you of our offer and the Contract Order for
Services (in the form attached to Schedule D of the Agreement) has been signed by you.
6. We understand that you are not bound to accept the lowest or any tender that you may
receive.
43
7. We declare the following conflicts or potential conflicts of interest (including commercial
and non-commercial conflicts) with respect to the subject matter of the Services (not
already disclosed to you in accordance with the Agreement):
Dated [ ] 201 �
Signature……………………………….
duly authorised to sign tenders for and on behalf of
[Provider]
44
Schedule D
Contract Order for Services
National Asset Management Agency
[To be issued in duplicate]
To [Provider]
Re: [Services Reference] (“the Services”) Contract Order for Services
Date: ………………
1. The National Asset Management Agency (“NAMA”) hereby accepts the
tender submitted by you on………201[●] (the “Tender”) to perform the
Services as set out in the Request for Tender on the following basis:
1.1 unless and except to the extent that this Contract Order expressly states
otherwise, the terms and conditions of the Agreement entered into between
NAMA and you (as Provider) on [ ] 201[●] (the “Agreement”) shall be read
as a whole and deemed to form and be read and constructed as part of this
Contract Order for Services (together the “Contract”). The terms and
conditions of this Contract Order for Services shall prevail in the event of a
conflict with or ambiguity in the terms and conditions of the Agreement.
1.2 the following terms and conditions shall apply:
SPECIAL CONDITIONS [to be inserted on case
by case basis]
Time for Performance [insert details]
Team [insert details]
Fees & Payment Schedule [insert details]
Others [insert details]
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2. You are hereby appointed to perform the Services on the basis of the
foregoing conditions.
3. In consideration of the payments to be made by NAMA to the Provider, the
Provider hereby covenants with NAMA to perform and complete the Services in
conformity in all respects with the provisions of this Contract.
National Asset Management Agency Provider