Addressing gender-based violence, Sexual Exploitation and Abuse (SEA), and Sexual Harassment (SH) more generally in the context of its development work is a priority for the World ¶¹ÄÌÊÓƵAPP. The ¶¹ÄÌÊÓƵAPP continues to take concerted measures to strengthen its approach to management and prevention of SEA-SH risks.
The strengthened requirements in works procurement are guiding borrowers in the assessment of bidders¡¯ responsiveness and competence to comply with specific SEA-SH-related obligations during the bid evaluation process. They also set clear expectations in contract conditions by stipulating obligations to manage GBV/SEA-SH risks that are within the contractors¡¯ control. Enhanced procurement documents provide clear, strong basis for borrowers to prevent, mitigate and manage SEA-SH risks and exercise appropriate remedies.
Building on these efforts, and following extensive engagement with a broad range of stakeholders including contractor and engineering associations, development partners, country counterparts, shareholders, and CSOs, the ¶¹ÄÌÊÓƵAPP is ready to implement the final recommendation of the GBV Task Force to hold contractors (and any non-compliant subcontractor) accountable for fulfilling their SEA-SH obligations during contract implementation through enhanced ¶¹ÄÌÊÓƵAPP remedy for non-compliance. The ¶¹ÄÌÊÓƵAPP is the first Multilateral Development ¶¹ÄÌÊÓƵAPP (MDB) to implement measures which ensure that contractors and subcontractors who don¡¯t comply with these critical requirements will not receive further ¶¹ÄÌÊÓƵAPP-financed contracts anywhere in the world for a period of two years.
Applying the Remedy
The remedy applies to procurement of works under Projects assessed as high-risk of SEA-SH, that apply Standard Procurement Documents (SPDs), based on FIDIC General Conditions (International Federation of Consulting Engineers). Currently, these SPDs are: Requests for Bids-Works; Requests for Proposals-Works: Design and Build, Design Build and Operate, and Engineering Procurement and Construction (EPC), and the Standard Bidding Documents-Works. The mechanism applies to all such procurement/contracts whose procurement process is initiated after January 1, 2021.
Disqualifications
The ¶¹ÄÌÊÓƵAPP¡¯s decision to disqualify a contractor/subcontractor will leverage tested contractual mechanisms, including application of Dispute Avoidance/Adjudication Board (DAAB/DAB), and will be made in an expedient manner, taking a maximum of four months, while ensuring fairness and strong due process for contractors.
The DAAB is a standard feature in ¶¹ÄÌÊÓƵAPP¡¯s SPDs for works that apply FIDIC General Conditions. The ¶¹ÄÌÊÓƵAPP requires that three members are appointed for works contracts with estimated costs higher than US$50 million. In the interest of proportionality, contracts with estimated costs between US$20M and US$50M the DAAB may comprise three members or a sole member, and for contracts with estimated costs less than US$20M, the ¶¹ÄÌÊÓƵAPP recommends a sole member. The DAAB has both an informal role in assisting parties to avoid disputes, and a binding adjudication role where it decides on non-compliance of either party.
While the DAAB reviews every aspect of contractual compliance, the new remedy leverages the role of the DAAB by specifically including review and decisions on contractor¡¯s non-compliance with SEA-SH prevention and response contractual obligations. This is applied using well-regulated contractual mechanisms. The DAAB does not get involved in determining the factual aspects or assessing the merits of any underlying allegation of SEA-SH.
The Borrower or the Contractor may appeal the DAAB decision if they are dissatisfied with the determination. Without extinguishing the right for a full arbitration, in the interest of expediency, the applicable arbitration rules also provide for emergency arbitration.
The Borrower notifies the ¶¹ÄÌÊÓƵAPP of the DAAB decision and outcome of any emergency arbitration. Where the DAAB has determined that the Contractor (and any subcontractor) is not in compliance with its SEA-SH contractual obligations, the ¶¹ÄÌÊÓƵAPP conducts a procedural review of the DAAB decision and may disqualify the Contractor (and any non-compliant subcontractor), unless the emergency arbitrator grants an order in favor of the Contractor. The disqualification period from being awarded a ¶¹ÄÌÊÓƵAPP-financed contract is for two years unless the contractor receives an arbitration award in its favor within the two year period.
This is separate from the ¶¹ÄÌÊÓƵAPP¡¯s Sanctions regime and . This mechanism focuses purely on whether the contractor complied with its contract obligations to prevent SEA-SH and respond accordingly.
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Background:
¶¹ÄÌÊÓƵAPP was one of the first multilateral institutions to confront heads on GBV-SEA-SH risks drawing on lessons learned from two Inspection Panel cases (in Uganda and DRC) and its extensive experience with mitigating social risks and protecting disadvantaged communities. Starting in 2017, the ¶¹ÄÌÊÓƵAPP took quick, concerted measures to further strengthen its approach to prevention and mitigation of SEA-SH risks in ¶¹ÄÌÊÓƵAPP-financed operations.
A comprehensive informed by the recommendations of an independent panel of experts (the July 2017 ), set out a multi-pronged approach to ensure that all involved and affected parties collaborate as accountable partners in addressing SEA-SH risks. The Action Plan set out robust measures to identify and mitigate SEA-SH risks as integral elements of the ¶¹ÄÌÊÓƵAPP¡¯s Environmental and Social Framework (ESF) as well as specific enhancements in operational processes and guidance such as a .
The ¶¹ÄÌÊÓƵAPP is the first MDB to introduce the disqualification remedy which relies on the enhanced standards for GBV/SEA-SH prevention and mitigation introduced by the ¶¹ÄÌÊÓƵAPP into its procurement requirements and social and environmental aspects of its work over the past three years. In designing the remedy, the ¶¹ÄÌÊÓƵAPP has engaged extensively with a broad range of stakeholders including contractor and engineering associations, development partners, country counterparts, shareholders, and CSOs. The initiatives are expected to enhance the ¶¹ÄÌÊÓƵAPP¡¯s efforts in working with all stakeholders, including contractors, as responsible partners to prevent and minimize the risks of GBV/SEA-SH in the context of development work.
Please visit this page on our Procurement website to view the Works Standard Procurement Documents (SPDs) to be used starting January 1, 2021.
Last Updated: Aug 10, 2022