TENDER PROCEDURE RULES FOR GESTAMP WIND 10 SP. Z O.O. WITH REGARD TO PROJECT FINANCED BY A LOAN FROM A NATIONAL ENVIRONMENTAL PROTECTION AND WATER MANAGEMENT FUND Warsaw, 17 June 2014
PREAMBLE Whereas GESTAMP WIND 10 sp. z o.o. in Poland: 1. conducts business in the energy sector, 2. is not obliged to apply the Public Procurement Law, 3. when awarding a contract, should treat contractors on equal terms, using fair competition and transparency rules, it is assumed that these rules by which Gestamp Wind 10 sp. z o.o. carries out tender procedures under articles 70 1-70 5 of the Civil Code for a project financed by a loan from a National Environmental Protection and Water Management Fund. 1 Introduction 1. These rules lay down the terms and conditions on which Gestamp Wind 10 sp. z o.o. will execute contracts for a project involving the construction of a wind farm of a capacity of 10 MW in the Pawłów Municipality, which do not fall under the ambit of the Public Procurement Law of 29 January 2004 (consolidated text: Journal of Laws of 2013 item 907, as amended). 2. The contracts are executed in writing under a procedure conducted in accordance with article 70 1-70 5 of the Civil Code, in Polish and English or Spanish and in accordance with Polish law and these rules. 3. All issues which are not regulated in these rules are governed by relevant provisions of Polish law, especially the Civil Code of 23 April 1964 (consolidated text: Journal of Laws of 2014 item 121). 4. By joining the procedure, a Contractor acknowledges that it has read these Rules, fully accepts them and treats them as binding. 2 Definitions Whenever these rules refer to: 1. Price it means a value expressed in monetary units which the Contracting Party is obliged to pay the contractor for the supply, service or construction work, net of VAT and excise tax (net price);
2. Supply it means the acquisition of things and other goods, especially under a sale, supply, rent, lease or leasing agreement; 3. Most advantageous tender it means a tender which presents the most advantageous balance of criteria applicable to the subject-matter of the contract; 4. Procedure it means a procedure initiated by a contract notice or by sending an invitation to submit requests to participate in the procedure or to tender in order to select the tender of a contractor with which the contract will be executed; 5. Variant tender shall mean a tender providing, in accordance with the specification of significant terms and conditions of the contract, alternative variants of the contract performance, for example, in terms of remuneration, completion schedules, terms of payments; 6. Rules it means these rules; 7. Construction works it means performing or designing and performing construction works within the meaning of within the meaning of the Building Law of 7 July 1994 (consolidated text: Journal of Laws of 2013, item 1409) and performance of a building facility within the meaning of the Building Law of 7 July 199, with any funds, in accordance with the Contracting Party's requirements; 8. TOR it means a specification of significant terms and conditions of the contract in a given procedure, including technical specifications; 9. Services it means any performances which do not include construction works or supplies; 10. Contractors it means individuals, legal persons or unincorporated organizational unit or their consortia competing for the award of a contract, which have submitted a tender, or concluded a procurement contract; 11. Contracting Party it means GESTAMP Wind 10 sp. z o.o. obliged to apply the Rules; 12. Contract it means a contract against payment concluded between the Contracting Party and the Contractor having as its subject-matter supplies or construction works. 3 Procedure principles 1. Contracts are awarded by the Contracting Party on terms and conditions set forth in these Rules. 2. The Contracting Party will prepare and carry out a procurement procedure in a way ensuring equal treatment of Contractors, fair competition and transparency.
3. The Contract is awarded exclusively to a Contractor selected in accordance with the Rules. 4. The contract award procedure is open for the Contractors. 5. Information which is regarded as the Contracting Party's or the Contractors' company secrets within the meaning of regulations on combating unfair competition will not be disclosed if a reservation on non-disclosure has been made. 4 Description of the subject matter of the contract 1. The Contracting Party describes the subject-matter of the contract in the procedure and the Contracting Party's requirements in the procedure documentation, including technical specifications. The technical specifications should be presented in the TOR. 2. The description of the subject matter should provide equal access for Contractors and should not pose unreasonable obstacles to opening the contract procedure to competition. 3. The Contracting Party reserves the right to indicate in the TOR elements of the subjectmatter of the contract, which cannot originate from countries which are not member states of the European Union or from states with which the European Union has not executed an agreement on equal treatment of entrepreneurs. 5 Form, language and procedure documents 1. The Procedure will be conducted in writing. Communication between the Contracting Party and the Contractors may be by post, e-mail or telephone (in the form of a teleconference convened by the Contracting Party), videoconference or by a combination of any of those means at the Contracting party's discretion indicated in the contract notice or in the TOR. 2. The Contracting Party will prepare minutes of each procedure, containing the most significant information on the procedure. 3. The contract award procedure is conducted in Polish, and the Contracting Party may also conduct the procedure, especially negotiations with the Contractors and draw up the procedure documentation, including the contract also in English or Spanish.
6 Procedure participation terms 1. Contractors, who meet the terms and conditions laid down by the Contracting Party in the contract notice, whose subcontractors or subsuppliers meet the terms and conditions laid down by the Contracting Party may compete for the contract. 2. The terms and conditions regarding the entities participating in the procedure may concern in particular: a) having qualifications to conduct specific business or activity if the law requires such qualifications; b) having relevant knowledge and experience; c) having relevant technical potential and individuals capable of performing the contract; d) the economic and financial situation; e) meeting the Contracting party's safety, work hygiene and environmental requirements in the business conducted; f) fair and proper performance of contracts awarded by any company from the Contracting party's capital group. 3. Contractors will confirm that they meet the above conditions by submitting statements or documents indicated by the Contracting Party in the notice or in the TOR. In order to meet the participation conditions a Contractor may relay on other entities, irrespective of the legal relations between them, on terms and conditions described in the notice or in the TOR. In such circumstances, the Contractor is obliged to demonstrate to the Contracting Party that it will have the resources needed to perform the contract, especially present to this end a written commitment of those entities to make available to the Contractor the necessary resources for the period in which they will be used to perform the contract. 4. The Contracting Party may require that the entity on which the contractor will rely to meet the procedure participation conditions participates in performing the contract as a subcontractor. 5. The moment of submitting and the scope of the statements or documents confirming fulfillment by Contractors and their subcontractors of the participation conditions will each time be indicated by the Contracting Party in the notice or in the TOR. In each case, the Contracting Party may request statements or documents to be submitted confirming fulfillment of the participation conditions by the Contractor whose tender has been selected as the most advantageous one at the pre-contract stage.
6. if the entity referred to in item 4 or 5 above does not meet the procedure participation conditions, the Contracting Party may inform the Contractor of this fact and call upon it to present another entity which meets the conditions set by the Contracting Party; otherwise, the Contractor will be excluded from the procedure. 7. Before selecting the most advantageous tender, the Contracting Party may ask the Contractors for the possibility to carry out a technical, financial and organizational audit to examine whether and confirm that a Contractor or its subcontractors have the necessary resources to properly perform the contract. A negative result of the audit or refusal to undergo an audit may be the basis for excluding a Contractor from the procedure. 7 Contractors competing jointly for a contract 1. Contractors may compete jointly for a contract. 2. In the case referred to in item 1, Contractors appoint an attorney-in-fact to represent them in the procedure or to represent them in the procedure and when concluding the contract. 3. The provisions on Contractors apply accordingly to the Contractors referred to in item 1. 4. If a tender submitted by the Contractors referred to in item 1 is selected, the Contracting Party may request an agreement regulating the cooperation of the Contractors before the contract is executed. 5. The Contractors referred to in item 1 bear joint and several liability for performing the contract and for providing appropriate security for proper contract performance unless the Contracting Party stipulates otherwise in the contract notice or in the TOR. 8 Subcontracting 1. A Contractor may entrust contract performance to subcontractors, except when, due to a specific nature of the subject-matter of the contract, the Contracting Party stipulates in the notice or in the w TOR that a specific part or the whole contract cannot be entrusted to subcontractors. 2. The Contracting Party may request that the Contractor indicate in the tender the part of the contract which it intends to subcontract. 9 Awarding a contract in a negotiated procedure with publication
1. A negotiated procedure with publication is a contract award procedure whereby, following a contract notice, the Contracting Party invites Contractors to submit requests to participate in the procedure; after evaluating the qualified Contractors to submit tenders on terms and conditions laid down in the Rules, especially in the notice, the invitation to negotiate and the TOR by providing the contract documentation to them. 2. The Contracting Party conducts negotiations with the Contractor who submitted to most advantageous tender or with two Contractors who submitted most advantageous tenders. The aim of the negotiations is for the Contractor to offer conditions more favorable than those presented in the tender. 3. The Contracting Party invites a number of Contractors who have met the conditions for participating in the procedure to submit tenders. The number of Contractors will be set forth in the contract notice; it must ensure competition, and will not be lower than 3. 4. If the number of Contractors who meet the procedure participation conditions is greater than the number set forth in the notice, the Contracting Party will invite Contractors who receives the highest marks in meeting those conditions, in accordance with the principles laid down in the notice, to submit tenders. 5. if the number of Contractors who meet the procedure participation conditions is lower than that specified in the notice, the Contracting Party will invite all Contractors who meet those conditions to submit tenders. 6. The Contracting Party sets a tender submission time limit, taking into account the time needed to prepare and submit a tender; however, this time limit cannot be shorter than 10 days from the date of the invitation to submit tenders. 7. The Contracting Party will notify Contractors who submitted requests to participate or tenders immediately of the results of evaluation of meeting the procedure participation criteria and of the received marks in meeting those conditions and of the selection of 2 most advantageous tenders. 8. The negotiated procedure referred to in item 1 may concern all contract terms and conditions, including the price. 9. The negotiated procedure referred to in item 1 cannot lead to a material change in the subject-matter of the contract or the original contract terms and conditions. 10 Initiation of procedure
1. The Contracting initiates the negotiated procedure with publication by placing a contract notice on its website. 2. The Contracting Party may, after publishing the contract notice, directly notify of the procedure being initiated Contractors known to it, who as part of their business provide supplies or construction works which are the subject of the contract. 11 Content of contract notice or TOR 1. The following information is included in a contract notice or TOR: 1) the Contracting Party's (business) name and address; 2) the subject-matter of the contract; 3) contract performance time-limit; 4) conditions for participating in the procedure and description of the method used to evaluate fulfillment of those conditions; 5) information on statements or documents which Contractors must provide to confirm fulfillment of procedure participation conditions; 6) number of Contractors that will be invited to submit tenders; 7) information on the acceptability of an variant tender; 8) information on the deposit; 9) tender evaluation criteria and their significance; 10) place and time limit for submitting requests to participate or tenders; 11) website on which information on the procedure is available. 12 Contractor's tender 1. A Contractor may only submit one tender. 2. A tender is submitted in writing and in an electronic form, or a CD or DVD; otherwise, it will be null and void. 3. The content of the tender must correspond to the content of notice and the TOR.
4. A Contractor, may, before the time limit for submitting tenders ends, change or withdraw its tender. 13 Opening tenders 1. The content of tenders cannot be disclosed before the time-limit for opening tenders ends. 2. The opening of tenders is public for the procedure participants and takes place immediately after the time-limit for the receipt of tenders ends; however, the day on which the time-limit for the receipt of tenders ends is the day on which the tenders are opened. 3. During the opening of tenders, the (business) names and addresses of the Contractors are given together with information which constitutes the tender evaluation criteria. 4. The information referred to in items 3 and 4 is sent immediately to Contractors who were absent during the opening of tenders, at their request. 14 Admissible corrections of tenders 1. During the examination and evaluation of tenders, the Contracting Party may request from Contractors explanations, detailed information and supplements of their tenders in order for the tenders to comply with the ToR requirements. 15 Tender evaluation criteria 1. The Contracting Party selects the most advantageous tender based on tender evaluation criteria laid down in the notice, invitation or the TOR. 2. Where a tender has been submitted which, if selected, would give rise to a tax liability for the Contracting Party under VAT regulations on intra-community acquisition of goods, in order to evaluate the tender, the Contracting Party adds to the tender price the VAT that would be payable under applicable regulations.
16 Notice on tender selection 1. After examining and evaluating the tenders, the Contracting Party notifies the Contractors who submitted tenders of: 1) Contractors who submitted tenders which are were not rejected, stating the (business) name or first and last name, registered office or place of residence and address of the Contractors whose tenders were selected, reasons for the selection, and the (business) names or first and last names, registered offices or places of residence and addresses of the Contractors who submitted tenders and the scores awarded to the tenders in each tender evaluation criterion and the total score; 2) Contractors, whose tenders were rejected, giving factual and legal reasons; 2. After conducting the negotiated procedure and final selection of the most advantageous tender, the Contracting Party notifies Contractors with whom the negotiations were held of this fact. The provisions of item 1 apply accordingly. 3. After conducting the negotiated procedure and final selection of the most advantageous tender, the Contracting Party notifies Contractors who submitted tenders of the time limit after which the contract may be concluded. 17 Supplementing and explaining documentation 1. A Contractor may request explanations from the Contracting Party regarding the content of the notice or the TOR. If the Contracting Party deems the request material, it provides the explanation immediately and no later than 10 days before the time limit for submitting requests or tenders ends. 2. The content of the questions and the explanations regarding the content of the notice or the TOR is published by the Contracting Party on its website. 3. In justified cases, the Contracting Party may, before the time limit for submitting requests or tenders ends, change the content of the notice or the TOR and may extend the time limit for submitting the requests or tenders. A change in the notice of the TOR is published by the Contracting Party on its website. 4. The Contracting Party may repeatedly call upon Contractors, who did not within the designated time limit submit documents or explanations required in the notice, invitation
or the TOR to submit or supplement the same within the time limit set by the Contracting Party. 5. The Contracting Party may call upon the Contractors to provide explanations concerning the statements or documents submitted within a time limit set by it. 18 Exclusion of Contractors 1. The following Contractors may be excluded from the procedure: a) Contractors who do not meet the procedure participation conditions set forth by the Contracting Party, or who failed to submit the required statements and documents to confirm that they meet the procedure participation conditions, b) Contractors whose bankruptcy has been declared, liquidation opened or whose bankruptcy or liquidation procedure has been initiated, c) Contractors who provided untrue information which affects the outcome of the procedure, d) Contractors who failed to pay the deposit or to extend the tender time limit or the tender period, e) Contractors who did not undergo the audit required by the Contracting Party or the outcome of the audit is unacceptable to the Contracting Party, f) Contractors who have unfairly or improperly performed contracts awarded in the part by any of the companies from the Contracting Party's capital group; g) Contractors who refused to submit statements or documents confirming fulfillment of procedure participation conditions by subcontractors. 2. Contractors may be excluded at any state of the procedure until the contract is executed. 19 Rejection of tenders 1. The Contracting Party rejects a tender if: 1) it is inconsistent with the Rules; 2) it is inconsistent with the content of the notice, invitation or the TOR; 3) in is unreliable, especially if it contains a grossly understated price compared to the
subject-matter of the contract; 4) it has been submitted by a Contractor excluded from participation in a contract award procedure or who has not been invited to submit tenders; 5) is invalid under separate regulations. 20 Procedure cancelation 1. The Contracting Party cancels the contract award procedure if: 1) no admissible tender is submitted by or no request to participate is received from a Contractor who is not subject to exclusion; 2) the price of the most advantageous tender or the tender with the lowest price exceeds the amount which the Contracting Party intends to allocate for financing the contract unless the Contracting Party can increase the amount up to the price of the most advantageous tender; 3) a substantial change in the circumstances has occurred as a result of which the conduct of the procedure or performance of the contract is no longer in the Contracting Party's interest; 4) the procedure has an irreparable defect preventing the conclusion of a valid contract. 2. The Contracting Party may cancel the procedure also for other reasons. 21 Contract execution 1. Contracts are governed by the Civil Code of 23 April 1964. 2. A contract must be concluded in writing. 3. Immediately after the contract is concluded, the Contracting Party publishes a contract award notice on its website. 22 Appeal measures
1. Contractors are entitled to appeal measures in the form of a reservation addressed to the Contracting Party in connection with any activity undertaken by the Contracting Party during the contract award procedure in breach of the Rules or failure to undertake activities which the Contracting Party is obliged to undertake under the Rules. 2. The reservation right is vested in a Contractor if the Contractor has or had interest in winning the contract or has suffered or may suffer damage as a result of the Contracting Party breaching the Rules. 3. A Contractor may submit a reservation only with regard to the following activities of the Contracting Party: a) description of the method of evaluating fulfillment of procedure participation conditions; b) exclusion of a contractor from the procedure; c) rejecting a contractor's tender. 4. A Contractor submits a reservation to the Contracting Party in writing, within 7 after it has learnt or, having used due care, could have learned of the Contracting Party's action or omission which is the subject of the reservation. 5. The Contracting Party examines the reservation within 15 days after receiving it. 6. In the decision resolving the reservation, the Contracting Party gives the reasons for the resolution. 7. If the reservation is acknowledged, the Contracting Party repeats the action which was the subject of the reservation and immediately informs all Contractors participating in the procedure of this fact. 8. Contractors are not entitled to any other legal protection measures against the Contracting Party's decision. 23 Entry into effect 1. The Rules enter into effect on 17 June 2014.