Ukraine: Legal Services for the Ukraine Business Ombudsman Institution (BOI)

Location:

Ukraine

Project number:

46455

Funding source:

EBRD-Ukraine Stabilisation and Sustainable Growth Multi-Donor Account

Contract type:

Consultancy Services

Notice type:

Invitation for expressions of interest (CSU)

Issue date:

11 Dec 2014

Closing date:

02 Jan 2015   at  23:59   London

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Project Description

Having received grant funding from the EBRD-Ukraine Stabilisation and Sustainable Growth Multi-Donor Account Fund (the Donor) the European Bank for Reconstruction and Development (the EBRD or the Bank) agreed to provide financing and technical assistance for establishing the Ukrainian Business Ombudsman Institution (the Project or the BOI).

Assignment Description

The Bank (see, however, note 2 below) now intends to engage for the BOI a Ukrainian legal advisor (the Consultant) to provide legal services in connection with the development and operation of the BOI (the Assignment).

The selected Consultant is expected to provide the following services:

A. Start-up Phase

(1) Arrange for all necessary tax, social security, etc., documents, approvals, consents and licences needed for the BOI and its staff; where relevant (e.g., in the case of the Business Ombudsman who is likely to be a foreign national), assist with all necessary immigration arrangements, including visas, labour and other permits and consents required for a foreigner to live and work in Ukraine.

(2) Assist with the review and negotiation of all contractual arrangements relevant to the office lease and work closely with a real estate agent engaged by the EBRD for this purpose.

(3) Assist with the review and negotiation of the contractual arrangements for office fit-out, contracts for supply of equipment (furniture, IT, security, etc.,).

(4) Prepare templates of employment contracts for staff and other templates needed for the BOI in connection with the employment arrangements and, if so required, assist with preparation and negotiation of individual employment contracts.

(5) Assist with all legal and contractual issues relevant to the setting up of the BOI web-site and related IT matters, as well as the initial media campaign.

(6) Prepare the draft Rules and Procedures for the BOI and help with the explanation and adoption of this document by the BOI supervisory board. The Rules and Procedures will cover, among other things, the following:

(a) BOI governance (e.g., the role of the Supervisory Board, its powers, relationship between the Business Ombudsman/Deputies and the Supervisory Board; duties and responsibilities of the Ombudsman and Deputies, rules relevant to staff recruitment and employment, etc.,).
(b) Detailed rules for conducting investigations, including clear eligibility criteria for a claim to be investigated by the BOI (this task should include the development of a clear and reasonably form for complainants who wish to submit a complaint to the BOI); identification of the kinds of matters that are not handled by the BOI (such as review of court decisions); steps that are necessary to be taken by the complainants before they are able to launch their complaint to the BOI (e.g., they have to exhaust appropriate administrative and other similar remedies available under applicable law to complain, where relevant, to the entity whose wrongdoing it alleges, and/or to an entity who supervises the alleged wrongdoer); rules relevant to the processing of a claim; guidance on how to conduct investigations and procedures for requesting a further investigation by relevant state authorities in cases where the initial investigation by the BOI determines that there are reasonable grounds that a business malpractice may have occurred.
(c) Rules relevant to the periodic Reports to be issued by the BOI – to the Supervisory Board and to the public at large.
(d) Confidentiality issues.
(e) Files and archives of the BOI.

The Start-up Phase is expected to take between six to eight months.

B. The Post-BOI law Adoption Phase

Once the law on the BOI is approved by the Verkhovna Rada:

(1) Assist with the assignment/transfer of all existing contractual arrangements to the new BOI, and ensure the preservation of the continuity of the BOI function.

(2) If necessary, prepare such constituent and other documents of the BOI as required by applicable law.

(3) Assist with all necessary permits, licences, consents, registrations, approvals (including, if necessary, appropriate changes to the employment, social security, etc., arrangements that may be necessary for the BOI to put in place following the adoption of the BOI law).

This phase of work is likely to commence in the second quarter of 2015 and is likely to take three to six months.

C. Ongoing duties during the term of the Assignment

(1) Provide company secretarial services, including, without limitation, arranging regular quarterly meetings for the supervisory board of the BOI, make any legal filings and submissions and take other action as, from time to time, required by the BOI;

(2) Amend, from time to time, as required by the BOI, of the Rules of Procedure, as well as any existing contracts of the BOI.

(3) Provide assistance in respect of such other legal issues as may, from time to time, be requested by the BOI and/or the EBRD, including, without limitation, labour law, tax and company law matters.

The on-going support for the BOI will commence immediately upon appointment and terminate at the end of the two-year Assignment.

Selection Process: Interested firms are hereby invited to submit expressions of interest.

Assignment Start Date and Duration: The Assignment is expected to start in January 2015 and is expected to be completed on 31 December 2016.

Financial Proposals from Interested Firms: Interested firms are expected to provide a financial proposal which shall be denominated in US Dollars (USD).

The Financial Proposal shall include:

(1) Financial cap for the Start-up Phase;
(2) Financial cap for the Post-BOI Adoption Phase;
(3) Monthly cap for the Ongoing Services; and
(4) Discounted and/or blended fee for the key experts or another form of discount in connection with the proposed fee arrangements (this criterion is encouraged albeit not required).

In principle the Financial Proposal shall be exclusive of VAT. However, the Financial Proposal shall set out (a) the applicable VAT separately as additional budget lines for each of the 3 phases/areas of services as above and (b) shall include an overall statement as follows:

Indirect taxes/VAT have been estimated at [add amount in words and figures]. If this determination is verified by the Bank, it is intended that the Bank is responsible for paying and recovering the indirect taxes/VAT associated with the services.

Funding Source: It is expected that the Assignment will be funded through the EBRD-Ukraine Stabilisation and Sustainable Growth Multi-Donor Account Fund. Please note selection and contracting will be subject to the availability of funding.

Eligibility: There are no eligibility restrictions but the firm and the key experts are expected to have substantial experience in providing Ukrainian law advice as specified below.

Consultant Profile: Legal services are required. The Consultant is expected to be a law firm with substantial previous experience related to:

1. Corporate and company secretarial services;
2. In-depth corporate governance expertise;
3. Commercial contract, immigration and labour law;
4. Administrative law and procedure;
5. Dealing with material legal issues with central governmental authorities, including in the context of anti-corruption and/or corporate governance legislation.

The Consultant’s expert team is expected to include key experts as follows:

(a) Key Expert No. 1 (Team Leader, preferably a Partner in the law firm in question) with preferably 15 years or more of practicing as a lawyer in Ukraine and previous professional experience with matters similar to those described in the Assignment. Ability to work, communicate and write clearly, including drafting of comprehensive legal documents and agreements in both Ukrainian and English is a must.
(b) Key Expert No. 2 (Partner or Senior Associate) with preferably more than 5 years of practicing as a lawyer in Ukraine previous professional experience with matters similar to those described in the Assignment. Ability to work, communicate and write clearly, including drafting of comprehensive legal documents and agreements in both Ukrainian and English is a must.
(c) Key Expert No. 3 (Associate) with preferably more than 3 years of practicing as a lawyer in Ukraine previous professional experience with matters similar to those described in the Assignment. Ability to work, communicate and write clearly, including drafting of comprehensive legal documents and agreements in both Ukrainian and English is a must.

Submission Requirements: In order to determine the capability and experience of Consultants seeking to be selected for this Assignment, the information submitted should include the following:

1. Firm’s profile, organisation and staffing (max. 2-4 pages);

2. Details of previous relevant experience or similar assignments particularly undertaken by the key experts proposed for the Assignment (and not the firm as a whole) in the previous five years, including information on contract value, contracting entity/client, project location/country, duration (mm/yy to mm/yy), expert months, days or hours provided (if different from duration) , main activities, objectives;

3. CVs of key experts who could be available to work on the Assignment with details of the experts’ professional experience,

4. Short technical proposal (max. 5 pages) summarising the approach, methodology, split of the key tasks among different team members and the approach to each individual phase of the Assignment.

5. Financial Proposal including the respective hourly rate for each key expert and any reimbursable expenses (if any) and the overall fee proposal as described in the section entitled “Financial Proposals from Interested Firms” above.

6. Completed Consultant Declaration Form and Contact Sheet, the template for which is available from the following web-link:

http://www.ebrd.com/pages/workingwithus/procurement/notices/csu/contact_sheet.doc.

The above information should not exceed 10 pages excluding CVs and Consultant Declaration and Contact Sheet.

The complete expression of interest (including CVs, Consultant Declaration and Contact Sheet) should be submitted, in English, electronically through e-Selection, to reach the Bank not later than the closing date. The expression of interest shall be one file (pdf). The EBRD reserves the right to reject applications of firms submitting more than one file. Only if the permissible file size is exceeded (4MB), the Consultant may split the expression of interest into further files.


Bank Contact Person:

Martin Ehrenberg
Technical Co-operation
European Bank for Reconstruction and Development
One Exchange Square
London EC2A 2JN
Tel: + 44 20 7338 7657
e-mail: ehrenbem@ebrd.com or yooj@ebrd.com (submissions should be sent through eSelection and NOT to this email address)

Important Notes:

1. The selection will normally be made from responses to this notification only. Consultants will not be asked to submit further proposals. The highest-ranked Consultant will be selected from a shortlist and be invited to negotiate the contract, subject to availability of funding.

2. Once the BOI is fully operational, the Bank’s contract with the selected firm will be assigned (or otherwise transferred) to the BOI, while the EBRD will continue financing the services under the assigned contract through the above-described grant funding. The selected law firm is expected to facilitate such transfer of the consultancy contract at no additional cost to the EBRD or the BOI. If, under applicable Ukrainian law, any indirect taxes/VAT are payable by the BOI under the consultancy contract, unless otherwise agreed, the Client will then have to pay the indirect taxes/VAT applicable to the services directly to the Consultant with the Bank providing the relevant funding.

3. The evaluation criteria are as follows:

(a) Technical Proposal - 30%
(b) Financial Proposal and value for money - 30%
(c) Quality as well as relevance of past experience of key experts – 40%