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ESA Unclassified - For Official UseAppendix 3 to

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SPECIAL CONDITIONS OF TENDER

INTRODUCTION

For the purposes of this Invitation to Tender (“the ITT”), the Agency’s “General Conditions of Tender for ESA Contracts (Annex IV to the ESA Procurement Regulations ESA/REG/001, rev 3"), available on http://emits.esa.int/emits/owa/emits.main under "Reference Documentation" "Administrative Documents" and referred to as the General Conditions of Tender (“the GCT”), shall apply as specified, amended or supplemented by these Special Conditions of Tender (“the SCT”). In the event of conflict between the GCT and the SCT, the SCT shall prevail.

This document contains references to the “General Clauses and Conditions for ESA Contracts” available on http://emits.esa.int/emits/owa/emits.main under "Reference Documentation" ---> "Administrative Documents" and referred to as the General Conditions of Contracts (“the GCC”).

The GCT are composed of the following parts: Part 1 : General Conditions for participation in a tender Part 2 : General Conditions for the presentation and submission of a

tender Part 3 : General Conditions of the content of a tender

The general Preference Clause is applicable to this ITT:

The Agency, following decision of its Council, may give preference in the placing of the contract to tenders from / or containing a substantial involvement of economic operators registered in Belgium, Denmark, Finland, Greece, Ireland, Luxembourg, Norway, Portugal, Sweden, Switzerland and United Kingdom, which will have obtained an overall weighted mark of at least 55, provided such tenders have been assessed as representing an acceptable combination between technical quality (including risk) and price.

For the purpose of this ITT "substantial involvement" is defined as: “Involvement corresponding to at least 50% of the total price quoted in the offer”.


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Part 1: GENERAL CONDITIONS FOR PARTICIPATING IN A TENDER

Part 1 of the GCT shall apply in full and be strictly complied with. Part 1 of the GCT stems directly from the Agency’s Procurement Regulations regarding the eligibility of economic operators to participate in a tendering procedure and the obligation to satisfy information and registration requirements.

Part 2: GENERAL CONDITIONS FOR THE PRESENTATION AND SUBMISSION OF TENDERS

Part 2 of the GCT applies subject to the amendments/additions contained in the sections below (numbering and referencing as per Part 2 of the GCT) :

A. General standards of presentation

Part 2A of the GCT is applicable with the following amendments:

Length of Tender documentsAs a rough guideline, the length of tender documents is be expected to be between 50 to 200 pages depending on the antennas covered.

The quoted number of pages does not include standard company information or brochures which the Tenderer wishes to append to demonstrate its background and experience.

Language of TenderThe tender and all correspondence relating to it shall be in English language.

B. Formal conditions, commitments, undertakings

Part 2B of the GCT is applicable with the following amendment(s):

- 5 : “Validity Period of the Tender” :For this particular tender, the validity period of the tender shall be of 6 months for all antennas.

- 12 :“Responsiveness of the Tender” :replaced by the relevant conditions contained in section 1 of Part 3 of the GCT (see hereunder in this document).

- 13 :“Use of Test Facilities“:does not apply.

C. Conditions relating to intellectual property rights (IPR)


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Treated in the frame of Part 2 C of the GCT (see the also Sections 3 and 4 of Part 3 G of the present SCT)

D. Conditions relating to Export/Import licences/authorisations and related documentation

Treated in the frame of Part 2 D of the GCT (see the also Section 5 of Part 3 G of the present SCT).

E. Conditions relating to subcontracts

Part 2E of the GCT is applicable with the following amendment(s):

For the purpose of this ITT, it is not required to place subcontracts on a competitive basis. The Agency does not intend to participate in subcontractor evaluation.

F. Amendments to documents and communications

Part 2F of the GCT is applicable.

G. Dispatch and receipt conditions

Part 2G of the GCT is applicable with the following amendments:

- The original of the signed cover letter shall be contained in a separate envelope marked “COVER LETTER - TO BE OPENED BY THE TENDER OPENING BOARD ONLY” and bearing the number and title of the Invitation to Tender. This envelope shall be opened by the Tender Opening Board in order to verify that the applicable “Key Acceptance Factors” (Annex 2 hereto) have been complied with. In case of negative assessment the tender will not be accepted for evaluation and the other packages constituting the tender shall remain unopened and be returned to Tenderer.

- In addition, a copy of the cover letter (including its Annexes 1 and 2 as defined in the present SCT) shall be included in each of the individual copies of the tender.

H. Non benefits requirements

Part 2H of the GCT is applicable.

I. Conditions relating to security screening of Tenderers personnel


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Part 2I of the GCT is not applicable to this tender as its purpose is not the provision of on-site personnel on ESA establishments, sites or stations.


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Part 3 : GENERAL CONDITIONS FOR THE CONTENTS OF A TENDER

Part 3 of the GCT is fully replaced by the sections below (subject to some very limited cases of explicit cross references). While the Tenderer is invited to consult the said Part 3 and the Annexes to the GCT for background information, the present section is meant to provide Tenderers, to the maximum possible extent, with a complete set of tender requirements to be addressed in each part of its proposal.

A. Cover letter

The tender cover letter should not go into detail but should be a brief introduction to the contents of the proposal as a whole. The cover letter of your bid must contain the information stipulated in the checklist here below.

The absence of the said information in the Cover letter and/or its Annexes may result in the tender not being accepted for evaluation by the Agency’s Tender Opening Board.

Any compliance statement made in the Cover Letter and its Annexes which would contradict the content of the tender may result in the subsequent elimination of the tender by the Agency’s Tender Evaluation Board.

Bidders’ attention is drawn to the fact that:

Failure to provide as Annex 2 to the cover letter of your tender a signed Form A “Declarations on Key Acceptance Factors” (Annex 2 of the Special Conditions of Tender) confirming compliance with all Key Acceptance Factors shall result in the non-admissibility of the tender for evaluation.Failure to provide as Annex 2 to the cover letter of your tender a signed Form B “Declarations on Compliances” (Annex 2 of the Special Conditions of Tender) giving all the requested compliances or justifications of deviations, may result in the subsequent elimination of the tender from the evaluation process.

Checklist for Cover Letter contents

Very brief summary of the key points of the bid, explaining the contents and the layout of the proposal with traceability of the proposal versus the Agency’s ITT/RFQ and identification of the major critical areas of the activity.

Completed Tables “Bidder’s Information and Statements” to be contained in an Annex 1 to the Bidder’s cover letter (the reference tables are found in Annex 1 to the present SCT):

o Table i) – Bidding Team and Price Breakdown Information


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o Table ii) – Geographical Distribution within bidding consortiumo Table iii) –Contact Details, Representatives

Completed and signed Forms to be contained in an Annex 2 to the Bidder’s cover letter (the reference Forms are found in Annex 2 to the present SCT):

o Form A – Declarations on Key Acceptance Factors o Form B – Declarations on Compliances

B. Executive summary

Part 3B of the GCT is applicable.

C. Technical proposal

Part C of the GCT is not applicable and replaced by the following:

1. New developments within the project are to be avoided: The Tenderer shall demonstrate that the design of the offered system exists by providing details about systems installed by the Tenderer, which are identical - or at least - use very similar key elements. In case new developments or major redevelopments are needed for certain key elements, these shall be clearly identifiable in the proposal.

2. The System Performance according to Section 5.1.4 shall be provided as part of the proposal, including initial draft results.

3. The Tenderer’s Tender shall be structured in accordance with the Work Packages as defined in Statement of Work (SoW).

4. The Tenderer shall provide an introduction showing his understanding of the requirements described in the SoW. The Tenderer shall, as part of his Tender, address all points raised in the SoW and Applicable Documents and shall outline the main problems and his proposed solutions to solve them. Comments on the work activities, which could assist the objectives of this work, shall be provided.

5. The Tenderer shall submit a description of the proposed technical approach explaining how the tenderer intends to perform the work, and a detailed first elaboration, as far as practicable, of the activities described in the Statement of Work, including if possible the selection of a preferred concept, together with the technical evidence of its validity in terms of feasibility and development risk. Mere repetition of the Agency’s requirements should be avoided.


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6. The Tenderer shall provide, as part of the Technical Proposal, the following documents (see Section 4.4.23.2 of the SoW for details):

Compliance Document (first issue) Site Infrastructure Interface Document (first issue)

7. The Tenderer shall provide in his proposal a list of Third Party Products, he proposes to use in the subject matter and shall provide all relevant information (explain the rationale for this choice in technical terms, the impact of this approach on the technical activities and resulting products - as well as their usage – shall be indicated (see also Part 3 – G – section 3)). Third Party Products is any software, (e.g. proprietary software or open source software, including also but not limited to software tools, libraries, code, designs, etc.) and associated items for which the Agency does not have the full usage, exploitation and distribution rights. For the avoidance of doubt, Third Party Product shall also include any existing software and associated items of the Tenderer or of his Sub-Contractor(s), if any, (see Part 2 - C), i.e. Background Intellectual Property Rights (1).

8. The Tenderer shall provide a list of all proposed Background Intellectual Property Rights, Third Party IPR and Open Source IPR, and the intended use within the deliverables. This list shall be maintained throughout the duration of the Contract. The Bidder’s attention is drawn in particular to the Agency’s requirements detailed in Part II of the Appendix II (draft Contract).

9. Regarding the approval procedure to use elements of a Third Party Product, reference is made to Section 4 of Part 3 G of the present SCT.

10.The Tenderer shall submit a statement and demonstration of compliance with the SoW, its requirements and Applicable Documents, clearly defining any proposed deviation with the relevant justification. The Statement of Compliance shall be presented in the form of a matrix, which shall refer to the corresponding sections of the SoW, to the Applicable Document and to the Tender.

The compliance matrix shall provide the following information:a. Original requirement ID b. Requirement text c. Statement of the Tenderer’s compliance with the requirements

using only the following terms:

1 Background Intellectual Property is defined in the General Clauses and Conditions for ESA Contracts as all Intellectual Property Rights not developed under contract with the Agency either prior to or during execution of the Contract, which are used by the Contractor and/or the Agency to complete the Contract or required for the use of any product, application or result of the Contract.


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a) Compliantb) Partially compliantc) Non-compliant

d. Section(s) of the proposal dealing with the requirement.e. For the requirements flagged as “non-compliant”, the Tenderer

shall explain the reason for not being compliant with the requirement. The Tenderer is also requested to evaluate and describe the effects of being non-compliant.

D. Management & Administrative proposal

Part D of the GCT is not applicable and replaced by the following:

1. Background experience of the Company(ies) The Tenderer shall present the company(ies) and their organisational structure including key company details such as number of employees, turnover and ownership.

The Tenderer shall also describe the background of the companies and the relevant experience that the bidding team has for the performance of the work which is subject of the present ITT.

In case any company of the bidding team has been involved in relevant ESA contracts, the Tenderer shall provide a summary description of the direct and indirect results achieved through such activities and lessons learned.

2. Company Organisation and Management of the activity

2.1The Tenderer shall present the project team, its composition, location and the structure of his company and of the industrial consortium or group (if applicable) and of the project organisation. The structure of the industrial consortium or group shall be shown schematically by means of organigrammes, which clearly show the tasks, position, authority, and name of the persons proposed for the work, and in particular the Study/Project Manager and the Contracts Officer. Lines of communication and reporting, and means for settling disagreements within the Prime Contractor’s company shall be described.

2.2Distribution of work between participating firms and Rationale for consortium:

If a Tender is made on behalf of a consortium or group of companies, the Agency must be informed of the distribution of work between the participating firms and the arrangements of the co-


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ordination of the work by the Prime Contractor. Lines of communication and reporting, and means for settling disagreements within the consortium or group of companies shall be described. The reason for building a consortium and in particular how the companies complement one another shall be explained.

2.3The managerial section shall demonstrate the measures to be taken to organise the Tenderers/consortium team to accomplish the tasks requested with the SoW.

2.4The Tenderer shall provide a statement of compliance with the management requirements of the ITT. The Tenderer shall present his management plans, policies and procedures for this activity including a description of the management control organisation, the procedures that will be used to exercise control over the project and the proposed subcontracting control (if any).

3. The Tenderer shall provide, as part of the Management & Administrative Proposal, the following documents (see Section 4.4.23.2 of the SoW for details):

Project Management Plan (draft version) Configuration Management Plan (draft version) Risk Management Plan (draft version)

4. Facilities

4.1The Tenderer shall submit a brief description of all facilities which are proposed to be used for the work offered, including those facilities which are still to be developed/built and/or purchased, with a statement whether the costs of developing/ building/purchasing the facility are to be directly or indirectly charged to the Contract.

4.2Modifications to existing facilities are also to be described. For this purpose facilities may include, as applicable, hardware, computer software, manufacturing, test equipment, production and integration lines, service centres and infrastructures hosting the user communities.

5. Key Personnel

5.1Key personnel are defined as persons who, because of their individual qualifications and positions are proposed for the work and indicated as such in the Tenderer's Organisation Breakdown Structure (“OBS” - for further information on OBS concept please see GCT Annex C item C). As a minimum, each person assigned as Work Package Manager shall be nominated as Key Personnel. Key personnel should be proposed to one level below the study/project


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manager, both for the main contractor and any sub-contractors. The provisions of Clause 9 of the GCC as amended in the Draft Contract shall apply to all key personnel.

5.2For each key person identified, the tenderer shall:

a) Provide a comprehensive curriculum vitae, giving in particular the work experience of the person concerned, a brief description of the person's present job and responsibilities and the precise assignment of the person to the present activity;

b) Indicate his position in the Tenderer's organisation and his role in the project;

c) Provide the average percentage of his/her total working time the key personnel will dedicate to the present activity (please provide clear justifications if any of the proposed staff is already allocated to another ESA project);

d) Provide the number of man-hours dedicated by each key personnel broken down per Work Package.

e) This overview of the proposed key personnel shall preferably be given in the form of the following matrix, which may be extended to contain additional information that the Tenderer considers relevant:

Name Tasks and Responsibilities

Company Involvement (WPs:…….)

Time dedication during involvement

CV provided

5.3The proposed team shall have solid experience in the areas defined in the SoW, which is to be shown by a skills matrix.

5.4For all proposed staff, a statement of their availability and employment status shall be given, which also states whether they are currently employees of the Tenderer.

The Tenderer shall propose a Project Manager, who has good experience in the management of FFP contracts, who is senior and able to work independently in the field for which he will be responsible.

E. Implementation proposal

Part E of the GCT is not applicable and replaced by the following:

1. Planning


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1.1 The Tenderer is encouraged to evaluate the requested schedule and justify any deviation.

The Tenderer shall submit his planning proposal in accordance with Annex D, paragraphs F points 1 and 2.a) of the GCT, in the form of a Gantt chart.

The Gantt chart shall duly reflect the relevant Work Package title and number as per Work Breakdown Structure and Work Packages Description.

In establishing his planning, the Tenderer shall take account of the need of the Agency to review and/or approve intermediate deliverables and shall include sufficient time for the Agency to do this.

The Tenderer shall identify the schedule planning constraints and assumptions on which the proposed schedule is based.

1.2Tenderers shall take note of the importance of the schedule for the delivery and installation of the EQUA-LEOP Antenna and shall confirm in their tenders their firm ability to comply with this schedule (see section 2.2 of the SoW) should they submit a tender for any of the three EQUA-LEOP Antennas.

1.3 The Contractor shall confirm compliance with the planning principles and tools to be used as described in the SoW.

2. List of Deliverable Items

The Tender shall contain a List of Deliverables items that are to be delivered under a resulting contract. The List of Deliverable items shall be grouped in Hardware, Software, and Documentation, indicating how many copies or units will be delivered of each item. For software, the Tender shall indicate in which format it will be delivered and if any licenses/third party licenses will be delivered to ESA.

3. WBS

3.1A management section showing a suitable work breakdown structure (“WBS” - see Annex D of the GCT for background information) and explaining how the work will be managed with details of the previous relevant experience of the Tenderer and any of his Sub-Contractors and the Tenderer’s and any of his Sub-Contractors proposed staff and their position in this Contract shall be provided. The team build-up and structure shall be defined.


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3.2For each Work Package, the Tenderer shall provide the information requested in the SoW (see Section 3).

3.3Duly completed Work Package Descriptions (PSS A20) for each Work Package shall be provided. The following shall be shown for each Work Package: title, Work Package identification, company assignment, duration, start-event, end criteria, the responsible manager, objectives of the Work Package, input needed from the Agency, tasks to be performed, output to be produced and, in particular, planned effort for the Work Package in man-hours.

3.4The Tenderer may refine and expand the work breakdown structure (WBS) proposed in the SoW provided that all the work described in the SoW is clearly covered and identifiable.

4. Assessment of Major Areas of Risk The risk associated with the work described in the SoW shall be addressed in a risk register, allocating each risk with a risk ID, risk scenario, the impact assessment, likelihood and severity classification, and possible mitigating measures shall be proposed for each identified risk. The ownership of each risk shall be identified.

F. Financial proposal

Part F of the GCT is applicable with the following amendments and additions:

1. Point 1 “Estimating” is not applicable.

2. The use of the ESA costing Software ECOS is not required.


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3. The Agency foresees the following maximum budgets:

a) EURO 2,000,000 for the NNO-1AA Antenna, including the Technical Option #1 (Implementation of Wide Beam Uplink);

b) EURO 800,000 for the 2m COTS – EQUA-LEOP 1, including the Technical Option #4 (Extension of Warranty Period);

c) EURO 2,800,000 for the NNO-1AA Antenna and the 2m COTS – EQUA-LEOP 1, including the technical options (see a) and b) above).

Consequently, please note that only proposals quoting maximum Firm Fixed Prices in EURO within these limits will be considered for evaluation.

Please note that the offered FFP(s) will be taken into consideration for the final selection of the Bidder(s), as according to ESA’s assessment the above maximum budgets contain margins.The Agency has earmarked for this activity:a budget of EURO 1,800,000 for the NNO-1AA Antenna, including the options.

a budget of EURO 600,000 for the 2m COTS - EQUA-LEOP 1 Antenna, including the option.

4. Price Type:

The price type applicable is set out in Article 3 of the Draft Contract.

5. Depending on the scope of the offer submitted, the tenderer shall quote one, several or all of the following Firm Fixed Prices:

A. the NNO-1AA;B. the 2m COTS - EQUA-LEOP 1;C. the NNO-1AA + the 2m COTS - EQUA-LEOP 1;D. the NNO-1AA + the Reproduction of NNO-1AA - EQUA-LEOP 2;E. the NNO-1AA + the Down-Scaled NNO-1AA - EQUA-LEOP 3.

Besides each of the above prices, Tenderers shall separately quote the FFPs for each of the respective technical options as described in the SoW.


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In the event tenderers submit a tender for more than 1 antenna, the Agency anticipates technical and economical synergies and benefits, which shall be described and quoted separately.

6. Cost Price Data:

The following PSS forms are available on EMITS (http://emits.esa.int/) under “Reference Documentation” “Administrative Documents” PSS Forms. They shall be completed and signed for the Prime Contractor and for each Subcontractor proposed - if any - and for the total study / development programme:

PSS A1 PSS A2 PSS A8 PSS A15.1

The Tenderer shall use the new PSS forms (Issue 5) and shall submit a complete set of PSS forms per antenna and per option covered.

7. Profit:

The fee (profit) shall not exceed eight (8) % of the “base amount”, indicated in item nine (9) of the Company Price Breakdown Form PSS A2 and shall not be applied to overheads or handling fees for any cost items which are inserted in rows referenced 3.1 / 3.10 / 5 / 7 of the PSS A2.

8. Furthermore, the Tenderer shall submit a summary table showing the price in EURO per company and for the total.

9. The Tenderer shall indicate whether licences of Intellectual Property Rights owned by any Third Party are to be purchased for the execution of the activity. The fees of these licences shall be included in the total price and itemised in Exhibit A to the PSS-A2 form.

10. Currency and conversion rates:

It is a binding requirement that tenders be presented in EURO.

The Agency will NOT enter into negotiations which are aimed at adjusting the prices proposed in order to account for fluctuations in exchange rates for companies in countries not participating in the EURO.

Should the countries to which the Tenderer or proposed Subcontractors belong adopt the EURO following submission of the tender, the


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applicable conversion rates shall be those adopted then by the appropriate European Authorities.

For any Tenderer or proposed Subcontractor located in non-EURO countries, the exchange rate shall be stated on the PSS forms and shall be clearly explained in the Exhibit to form PSS-A2 and any other factors (e.g. hedging costs, forward buying rates, etc.) used for the purpose of their calculation shall be indicated.

11. Quotations free of taxes and customs duties:

Prices shall be quoted free of taxes and customs duties. In cases where the Tenderer considers that he will remain subject to the payment of taxes or customs duties, he shall indicate separately the applicable rates, the corresponding estimated total tax or customs duty amount, and the reason why he believes exemption from tax or customs duties cannot be obtained. Attention is drawn to Clause 29 of the GCC.

The Tenderer is reminded that if a Prime is entitled to a VAT exemption form from ESA (or similar procedure) it is only the Prime which will have the benefit of the VAT exemption, and not the Subcontractors. All Subcontractors invoices should be addressed to the Prime and must include VAT or any other taxes or duties required by the relevant national rules for the companies involved.

Any VAT costs which are payable under such subcontracts shall not be included in the price charged to ESA.

12. Royalties and licence fees:

The Agency will only accept to pay licence fees or royalties on the condition that:

They are clearly identified in the tender with the financial basis for their calculation, method of application and total amount (see also point 9 above) and, They are demonstrated to be of direct and necessary benefit to the work to be performed, They are not merely the consequence of a general agreement or commitment to a third party, They are applied only to that part of the effort to be performed by a contractor or subcontractor that is directly related to the subject matter of the licence or royalty agreement.

A copy of the documents justifying the request for the payment of a licence fee or royalty, or the appropriate part thereof, may be requested at any time during the evaluation or negotiation phases.


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Any such licence fees on royalties shall be included in the FFP (i.e. shall not trigger any additional payment obligations for the Agency).

13. Payments:

The Tenderer may either accept the Payment Plan attached to the draft Contract as Appendix 1., or propose an alternative Milestone Payment Plan (MPP). In the latter case, the following shall apply:

The MPP shall be provided in the form shown in the relevant appendix of the Draft Contract, taking in consideration Article 3 of the draft Contract and Clause 28 of the GCC.

With the exception of any advance payment, all claims for payment shall be linked to the achievement of defined schedule milestones. These milestones are to be in the form of significant events in the programme to be selected on the basis of providing a check point for progress in the work performed. Examples of such milestones are the satisfactory completion of Design Reviews, satisfactory completion of tests, hardware deliveries, acceptance of produced documentation, closure of Contract, etc. It should be noted that the commencement of an activity is not deemed to be a suitable milestone. Please also note that a milestone payment plan, broken down by sub-contractor, is also requested (if applicable). In establishing the payment plan, the Tenderer shall comply with the conditions shown in the draft Contract payment plan and with the present conditions.

The proposed milestone(s) should reflect the “economic reality” of the project (i.e. the monetary value of the technical achievement).

The Tenderer shall not propose more than 2 payments per year unless it can provide satisfactory justification for it in its tender.

14. Travel and Subsistence Plan

Travel costs shall be included in the FFP.

The requirement to provide Exhibit B of PSS A2 (Annex E, Section C, PSS A2) is replaced by the following:

The Tenderer shall submit a brief description of the travels envisaged for the execution of the contract together with the related cost details, broken down to the travel and subsistence cost for each travel and the number of participants (including Prime Contractor and Subcontractor(s)). This shall preferably be given in the form of the following matrix:

WP ref

Purpose of trip

Point of departure

Destination

Means of transpor

# of trips

Travel cost /

# of persons

Duration of trip

Subsistence rate / day

Total cost

Total cost subsistence


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t person / trip

travel

15. Equatorial site for the EQUA-LEOP Antenna:

For evaluation purposes, Tenders that cover (one, several or all of) the EQUA-LEOP Antenna(s) shall assume as Equatorial site the ASI Broglio Space Center (BSC), Malindi, Kenya.

G. Contractual proposal

Part G of the GCT is applicable with the following amendments and additions:

1. Compliance with contract conditions :

The Tenderer shall explicitly state that the contract conditions have been read, are understood and accepted, and that any sales conditions of his own do not apply. In case, exceptionally, that he wishes to propose modifications or amendments, the full text of such modifications or amendments shall be given and the reasons for their being requested shall be clearly explained. Any proposed modifications or amendments to the contract conditions will be taken into account in the evaluation. Acceptance of a tender containing reservations, or proposed modifications or amendments is not construed as acceptance of these, unless and until such modifications or amendments are confirmed in a contract. Any proposed modifications or amendments to the contract conditions shall either be rejected by the Agency or shall be the subject to negotiation prior to award of the contract.

2. Insurance waiver

Tenderers are encouraged to discuss with their insurance company to obtain a waiver of subrogation rights from the insurers (foreseen in Clause 18.1.3 of the GCC). This waiver will be available on the side of ESA in case of reciprocity. Failure to present such a waiver at a potential contract signature will result in a hold harmless agreement between the parties in accordance with Clause 18.1.6 of the ESA GCC.

The Tenderer shall state whether such a waiver will be available at a potential contract signature.

3. Statement concerning the use of existing intellectual property rights of the Tenderer (Background IPR) and third party commitments

The Tenderer shall address in the contractual proposal any particular conditions related to Background Intellectual Property Rights (BIPR)


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and third party commitments in accordance with the requirements hereafter (and as further defined in Part 2 of the GCT section 2C).

If the Tenderer intends to use own background data corresponding to existing intellectual property rights owned by the Tenderer or by a proposed Subcontractor or by any other third party, he is expected to state this in his tender and to provide as part of his tender a dedicated table “List of items covered by Background Intellectual Property Rights (BIPR) which are proposed to be used for the present activity” as per model hereunder.

TABLE – LIST OF ITEMS COVERED BY BACKGROUND INTELLECTUAL PROPERTY RIGHTS (BIPR) WHICH ARE PROPOSED TO BE USED FOR THE PRESENT ACTIVITY

Exact name of BIPR

ItemOwner Description

Patent # or Ref. / Issue /

Revision / Version #

Contract / Funding Details

under which the IPR was created (*)

Date of creation of the

version of the BIPR

listed here

Affected deliverable

with comments

(*) If ESA Contract pleases mention it. The IPR will then not be qualified as BIPR and will follow the regime of the very contract.

The Agency will not enter into any discussion related to the use of BIPR that have not been presented in the tender and in the table mentioned above, and reserves the right to challenge, in due course up to contract closure, the BIPR claimed by the Tenderer in the offer and in the table mentioned above.

The Tenderer shall further specify if such background data is needed only for the development or whether it is also necessary subsequent to the delivery. In the latter case, the Tenderer shall along with the lines established in this section 5 here below confirm the conditions of access (any limitation/restriction, licensing and related costs) and confirm that the Agency can use them for the intended use/objective of the ITT detailed in the Statement of Work.


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In case the Tenderer wishes to make any restriction on the rights of distribution and use, as foreseen and defined in Part II of the GCC as amended by the draft contract, of any data, including documentation, related to the work under the contract, such proposed restriction must be clearly defined and justified in the tender. It will be taken into account in the evaluation and if contrary to the stated objectives of the ITT, may render the tender unacceptable.

The Agency will not accept reservations made subsequent to the closing date of the ITT.

4. Approval Procedure to use elements of a Third Party Product:

The use of any third party product(2) (hereinafter “Third Party Product”) for the development of the Deliverables under the resulting Contract needs the explicit prior written approval by the Agency. It shall be the obligation of the Tenderer to verify and confirm in writing to the Agency that the licence, under which a Third Party Product shall be licensed to the Agency, grants the Agency at least the same, but non-exclusive perpetual usage, distribution and exploitation rights as foreseen in the Contract resulting from this ITT.In case the Tenderer proposes the use of any Third Party Product, the Tenderer shall provide in its Tender the following information:

Exact name and, if applicable, version of the Third Party Product. Exact intended use of the Third Party Product, in particular, by stating whether it is needed in order to build the application to be delivered and/or in order to run the application to be delivered. Exact source of supply, e.g. in case of delivery the suppliers company name and address, in case of download also the exact internet address and date, from where and when the download was made. Full and complete copy of the licence agreement, under which the Third Party Product is licensed. Statement as to whether any dispute relating to the license agreement will be subject to arbitration procedures or to normal court procedures.

If the Tenderer is allowed to do so, the Tenderer shall provide and license, based on a separate licence agreement with the Agency, to the Agency a complete copy on a physical media of the original Third Party Product.

2 “Third Party Product” shall be defined as any item, including also but not limited to software (e.g. proprietary software or open source software, including also but not limited to software tools, libraries, code, designs, etc.) and associated items, which is subject to Intellectual Property Rights (as defined in the Agency’s General Contract Conditions – herein also referred to “IPR”) for which the Agency does not have the full usage, exploitation and distribution rights. For the avoidance of doubt, the term “Third Party Product” shall include also any existing software and associated items of the Tenderer or of his Sub-Contractors.


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In case the verification of a licence for a Third Party Product by the Tenderer results that the licence deviates in one or more points from the rights to be granted to the Agency according to the Contract resulting from this ITT, the Tenderer shall also provide an exhaustive list where the licence for this Third Party Product deviates from the rights to be granted to the Agency in accordance with the Contract.In case the proposed Third Party Product is the Background IPR of the Tenderer or any of its Subcontractors the following additional information shall be provided:

Whether or not the respective software has been developed under a contract with the Agency, and if so: Number(s) of the Contract under which the software has been developed and/or altered, The rights granted to the Agency under this contract(s), The rights granted by the Tenderer/Subcontractor to any Third Party as part of other contractual agreements.

5. Statement relating to Export/Import licences/authorisations and related documentation

The Tenderer shall address in the contractual proposal any particular conditions related to Export/Import licences/authorisations and related documentation.

The Tenderer (and his Subcontractors, if any) shall indicate any export or import restrictions he is subject to in accordance with national legislation and state the necessary licences, authorisations or preliminary authorisations and related Documentation:

he (or his subcontractors) has obtained in order to submit a tender; and/or, he (or his subcontractors) has or will need to obtain prior to placing of the Contract; and/or, he (or his subcontractors) has or will need to obtain for the implementation of the Contract.


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List of Annexes to the present SCT

ANNEX 1: Tender cover letter - Tables to be provided as part of its Annex 1

Table i) : Bidding team and Price breakdown Information Table ii) : Geographical distribution within bidding consortium Table iii) : Contact details, Representatives

ANNEX 2: Tender cover letter - Forms / Letters to be provided as part of its Annex 2

Form A : Declarations on Key Acceptance Factors Form B : Declarations on Compliances

ANNEX 3 : Evaluation Criteria and Weighting Factors


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ANNEX 1: Tender cover letter - Tables to be provided as part of its Annex 1

TABLE i) - Bidding Team and Price Breakdown Information :

Prime Contractor

Sub-Contractor 1

Sub-Contractor 2

Economic Operator Complete Name and Legal Nature (3)

SME (indicate YES or NO)

Large Space Integrator (indicate YES or NO) (4)

EMITS Bidder Code

esa-p Bidder Code (60000xxxxx) (5)

esa-p Vendor Code (10000xxxxx) (6)

Country

Price Type

Currency

Total Price per Prime/Sub

Price for any Options

GRAND TOTAL

3 Specify here the type of business entity to which the company belongs (e.g Limited Company, Société Anonyme, AG etc)4 According to registration with ESA5 For the purpose of invoicing under a resulting Contract, the tenderer will be expected to use the ESA-P system of the Agency. For those tenderers who have already entered into contracts with the Agency this tool is known and the ESA-P tenderer and vendor numbers are in principle known. For tenderers who have not yet entered into a contract with the Agency, an ESA-P Vendor Number is not available and will only be provided at the time of finalisation of the resulting contract.6 idem


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TABLE ii) - Geographical Distribution within bidding consortium (for Prime and Subcontractors only, not for suppliers) :

Country(2-letter ISO code)

Percentage of total amount %

country 1 xx %

country 2 xx %

country 3 xx %

TABLE iii) - Contact Details, Representatives

For the Prime Contractor:

Contact person to whom all communication related to the bid should be addressed

Name:Telephone nr.:Fax nr.:Email address:Postal address:

Author(s) of bid Name:Job Title:

Person who will be responsible for the Technical management of any resulting contract, and who would be nominated as such in the contract


Person who will be responsible for the Contractual management of any resulting contract, and who would be nominated as such in the contract


Person that will sign any resulting contract

Name:Job Title:

For each Subcontractor:


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Name of Subcontractor Name:Address:

Contact person for the purposes of their bid to the prime contractor

Name:Telephone nr.:Fax nr.:Email address:


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ANNEX 2: Tender cover letter - Forms to be provided as part of its Annex 2

Form A: Declarations on Key Acceptance Factors

ITT Reference: ………………………………………………………………………….

Subject: …………………………………………………………………………………

By submitting this Form A as Annex to the cover letter of the tender reference [insert reference of your tender……], I/we the undersigned herewith officially declare that the tender fulfils the Key Acceptance Factors as listed hereunder:

Mandatory baseline KAF: Please tick all the boxes to confirm that you meet the requirements

The tenderer and any subcontractor(s) satisfy/ies the qualification requirements established under Part 1 A “ Eligibility requirements” paragraph s b) to i) of the Agency’s General Conditions of Tender (see Part 2B-1 of the GCT).

The tenderer confirms, on his behalf and on behalf of its subcontractors, to be compliant with the requirements listed in the “Certification of Free Competition” (see Part 2B-3 of the GCT).

The tenderer confirms, on his behalf and on behalf of its subcontractors, to be compliant with the requirements listed in the “Certification of non-benefit” (see Part 2H of the GCT)

The tenderer confirms, on his behalf and on behalf of its subcontractors, the acceptance of the conditions listed in the “Non commitment of the Agency” (see Part 2B-11 of the GCT)

The tender cover letter and the tender contain a binding price.


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The tender cover letter and the tender contain a price type compliant with the one requested in the ITTThe tender is compliant with the budgetary limits applicable to the tender (reference is made to Part F 3 of Appendix 3 to the ITT).The tender cover letter contains a confirmation that the validity period is 6 months from the date of tender submission with implicit extensions as per Article 37 points 3 &4 of the GCC .

The tender contains a technical description.The tender cover letter and its Annex 2 (Forms A and B) are signed by authorised representative(s) of the Tenderer.

It is understood that :

- failure to provide this Form A, as an Annex to the tender cover letter, fully completed and signed will result in the tender non admissibility for evaluation.

- if the analysis of the full tender reveals that the offer is not in line with any of the declarations given in the present Form, the tender will be excluded from further evaluation.

Name:

Current position in the Tenderer’s organisation :

Signature:

Date:


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Form B: Declarations on Compliances

ITT Reference: ………………………………………………………………………….

Subject: …………………………………………………………………………………

By submitting the present Form B as Annex to the cover letter of the tender reference [insert reference of your tender ………..]

I/we the undersigned herewith officially declare that the tender is compliant with the following requirements as listed hereunder:

Indicate : “Compliant” or “Partially Compliant“ or “Non-Compliant“(in the last 2 cases give reference of the cover letter specific section containing detailed information on the matter and relevant cross references to the applicable parts of the offer)

The information provided to ESA for registration as potential supplier (individually for all entities involved in the tender) has been updated in the last 12 months;

With regard to the technical requirements of the ITT, the tender is:

With regard to the managerial requirements of the ITT, the tender is:

With regard to the financial requirements of the ITT, the tender is:

With regard to the contract conditions of the ITT (Part 3 G section 1 of Special Conditions of Tender and of General Conditions for the contents of a tender; and draft contract), the tender is:

With regard to the IPR requirements (Part 3 G sections 3 and 4 of Special Conditions of Tender and Part 2 C of General Conditions for the contents of a


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tender), the tender is:

With regard to the Export/Import requirements (Part 3 G section 5 of Special Conditions of Tender and Part 2 D of General Conditions for the contents of a tender), the tender is:

With regard to the Agency’s Right of Audit (GCT Part 2 B7) the ITT, the tender is:

With regard to the schedule contained in section 2.2 of the Statement of Work, the ITT is:

It is understood that :

- The absence of a Form B, as an Annex to the tender cover letter, fully completed and signed or any compliance statement or justification for partial compliance referred to in the present Form that would be contradicted by the detailed content of the tender may result in the subsequent elimination of the tender from the evaluation process.

Name:

Current position in the Tenderer’s organisation :

Signature:

Date:


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ANNEX 3 : Evaluation Criteria and Weighting Factor

In evaluating the tender(s) ESA will use the following criteria:

No.

Evaluation Criterion Weighting Factor

1. Background and experience (general and related to the particular field concerned) of the company (ies) and staff (including adequacy of proposed facilities)

25%

2. Understanding of the requirements and objectives and discussion of problem areas

20%

3. Quality and suitability of proposed programme of work; adequacy of engineering approach

25%

4. Adequacy of management, costing and planning for the execution of the work

20%

5. Compliance with administrative tender conditions and acceptance of contract conditions

10%

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