Annex (normative)


Standard Conditions of Tender

F.1         General

F.1.1      Actions

F.1.1.1 The employer and each tenderer submitting a tender offer shall comply with these conditions of tender. In their dealings with each other, they shall discharge their duties and obligations as set out in F.2 and F.3, timeously and with integrity, and behave equitably, honestly and transparently, comply with all legal obligations and not engage in anticompetitive practices.

F.1.1.2 The employer and the tenderer and all their agents and employees involved in the tender process shall avoid conflicts of interest and where a conflict of interest is perceived or known, declare any such conflict of interest, indicating the nature of such conflict. Tenderers shall declare any potential conflict of interest in their tender submissions. Employees, agents and advisors of the employer shall declare any conflict of interest to whoever is responsible for overseeing the procurement process at the start of any deliberations relating to the procurement process or as soon as they become aware of such conflict, and abstain  from  any  decisions  where  such  conflict  exists  or  recuse  themselves  from  the  procurement process, as appropriate.

Note:       1)      A conflict of interest may arise due to a conflict of roles which might provide an incentive for improper acts in some  circumstances.  A  conflict  of  interest  can  create  an  appearance  of  impropriety  that  can  undermine confidence in the ability of that person to act properly in his or her position even if no improper acts result.

2)    Conflicts of  interest  in  respect  of  those  engaged  in  the  procurement  process  include  direct,  indirect  or  family interests  in  the  tender  or  outcome  of  the  procurement  process  and  any  personal  bias,  inclination,  obligation, allegiance or loyalty which would in any way affect any decisions taken.

F.1.1.3  The employer shall not seek and a tenderer shall not submit a tender without having a firm intention and the capacity to proceed with the contract.

F.1.2    Tender Documents

The documents issued by the employer for the purpose of a tender offer are listed in the tender data.

F.1.3    Interpretation

F.1.3.1 The tender data and additional requirements contained in the tender schedules that are included in the returnable documents are deemed to be part of these conditions of tender.

F.1.3.2 These conditions of tender, the  tender  data  and  tender  schedules  which  are  only required  for  tender  evaluation  purposes,  shall  not  form  part  of  any  contract  arising  from  the invitation to tender.

 F.1.3.3 For the purposes of these conditions of tender, the following definitions apply:

a)         conflict of interest means any situation in which:
i)    someone  in  a  position  of  trust  has  competing  professional  or  personal  interests which make it difficult to fulfill his or her duties impartially;
ii)    an  individual  or  organisation  is  in  a  position  to  exploit  a  professional  or  official
capacity in some way for their personal or corporate benefit; or
iii)    incompatibility   or   contradictory   interests   exist   between   an   employee   and   the organisation which employs that employee.
b)        comparative  offer  means  the  price  after  the  factors  of  a  non-firm  price  and  all
unconditional discounts it can be utilised to have been taken into consideration;
c)    corrupt practice means the offering, giving, receiving or soliciting of anything of value to influence the action of the employer or his staff or agents in the tender process;
d)         fraudulent practice means the misrepresentation of the facts in order to influence the
tender process or the award of a contract arising from a tender offer to the detriment of the employer, including collusive practices intended to establish prices at artificial levels;
e)         organization  means  a  company,  firm,  enterprise,  association  or  other  legal  entity,
whether incorporated or not, or a public body;
f)          functionality  means  the  measurement  according  to  the  predetermined  norms  of  a
service or commodity designed to be practical and useful, working  or operating, taking into account quality, reliability, viability and durability of a service and technical capacity and ability of  a tenderer.

F.1.4    Communication and employer’s agent

Each communication between the employer and a tenderer shall be to or from the employer, and in a form that can be readily read, copied and recorded. Communications shall be  in  the  English  language.  The  employer  shall  not  take  any responsibility  for  non-receipt  of communications from or by a tenderer. The name and contact details of the employer are stated in the tender data.

F.1.5    Cancellation and Re-Invitation of Tenders

F1.5.1 may, prior to the award of the tender, cancel a tender if-

(a) due to changed circumstances, there is no longer a need for the services, works or goods requested; or

(b) funds are no longer available to cover the total envisaged expenditure; or

(c) no acceptable tenders are received.

F.1.6     Procurement procedures
F.1.6.1   General

Unless otherwise stated in the tender data, a contract will, subject to F.3.13, be concluded with the tenderer who in terms of F.3.11 is the highest ranked or the tenderer scoring the highest number  of  tender  evaluation  points,  as  relevant,  based  on  the  tender  submissions  that  are received at the closing time for tenders.

F.1.6.2   Competitive negotiation procedure

F.   Where  the  tender  data  require  that  the  competitive  negotiation  procedure  is  to  be followed, tenderers shall submit tender offers in response to the proposed contract in the first round of submissions. Notwithstanding the requirements of F.3.4, the employer shall announce only the names of the tenderers who make a submission. The requirements of F.3.8 relating to the material deviations or qualifications which affect the competitive position of tenderers shall not apply.

F.  All responsive tenderers, or not less than three responsive tenderers that are highest ranked  in terms of the evaluation method and evaluation criteria stated in the tender data, shall be invited in each round to enter into competitive negotiations, based on the principle of equal treatment   and   keeping   confidential   the   proposed   solutions   and   associated   information. Notwithstanding  the provisions  of  F.2.17,  the  employer  may request  that  tenders be clarified, specified and fine-tuned in order to improve a tenderer’s competitive position provided that such clarification, specification, fine-tuning or additional information does not alter any fundamental aspects   of   the   offers   or   impose   substantial   new   requirements   which   restrict   or   distort competition or have a discriminatory effect.

F.   At  the  conclusion  of  each  round  of  negotiations,  tenderers  shall  be  invited  by  the employer to make a fresh tender offer, based on the same evaluation criteria, with or without adjusted weightings. Tenderers shall be advised when they are to submit their  best  and final offer.

F. The contract shall be awarded in accordance with the provisions of F.3.11 and F.3.13 after tenderers have been requested to submit their best and final offer.

F.1.6.3   Proposal procedure using the two stage-system

F.   Tenderers  shall  submit  in  the  first  stage  only  technical  proposals (credentials and case studies).  The  employer shall invite all responsive tenderers to submit tender offers in the second  stage, following the issuing of procurement documents.

F.   The employer shall evaluate tenders received during the second stage in terms of the method of  evaluation stated in the tender  data,  and award the contract  in terms of  these conditions of tender.

F.2       Tenderer’s obligations

F.2.1    Eligibility

F.2.1.1  Submit a tender offer only if the tenderer satisfies the criteria stated in the tender data and  the  tenderer,  or  any  of  his  principals,  is  not  under  any  restriction  to  do  business  with employer.

F.2.1.2  Notify the employer of any proposed material change in the capabilities or formation of the  tendering  entity  (or  both)  or  any  other  criteria  which  formed  part  of  the  qualifying requirements  used  by  the  employer  as  the  basis  in  a  prior  process  to  invite  the  tenderer  to submit a tender offer and obtain the employer’s written approval to do so prior to the closing time for tenders.

F.2.2    Cost of tendering

F2.2.1   Accept   that,   unless   otherwise   stated   in   the   tender   data,   the   employer   will   not compensate the tenderer for any costs incurred in the preparation and submission of a tender offer,  including  the  costs  of  any  testing  necessary  to  demonstrate  that  aspects  of  the  offer complies with requirements.

F2.2.2 The cost of the tender documents charged by the employer shall be limited to the actual cost  incurred  by  the  employer  for  printing  the  documents.  Employers  must  attempt  to  make available  the  tender  documents  on  its  website  so  as  not  to  incur  any  costs  pertaining  to  the printing of the tender documents.

F.2.3    Check documents

Check  the  tender  documents  on  receipt  for  completeness  and  notify  the  employer  of  any discrepancy or omission.

F.2.4    Confidentiality and copyright of documents

Treat  as  confidential  all  matters  arising  in  connection  with  the  tender.  Use  and  copy  the documents issued by the employer only for the purpose of preparing and submitting a tender offer in response to the invitation.

F.2.5    Reference documents

Obtain, as necessary for submitting a tender offer, copies of the latest versions of  standards, specifications, conditions of contract and other publications, which are not attached but which are incorporated into the tender documents by reference.

F.2.6    Acknowledge addenda

Acknowledge receipt of addenda to the tender documents, which the employer may issue, and if necessary apply for an extension to the closing time stated in the tender data, in order to take the addenda into account.

F.2.7    Clarification meeting
Attend, where required, a clarification meeting  at  which tenderers may familiarize themselves with  aspects  of  the  proposed  work,  services  or  supply  and  raise  questions.     Details  of  the meeting(s) are stated in the tender data.

F.2.8    Seek clarification

Request clarification of the tender documents, if necessary, by notifying the employer at least five working days before the closing time stated in the tender data.

F.2.9    Insurance

Be aware that the extent of insurance to be provided by the employer (if any) might not be for the full cover required in terms of the conditions of contract identified in the contract data.  The tenderer is advised to seek qualified advice regarding insurance.

F.2.10  Pricing the tender offer

F.2.10.1 Include in the rates, prices, and the tendered total of the prices (if any) all duties, taxes (except  Value  Added  Tax  (VAT),  and  other  levies  payable  by  the  successful  tenderer,  such duties,  taxes and levies  being  those applicable 14 days before the  closing  time stated in the tender data.

F2.10.2  Show VAT payable by the employer separately as an addition to the tendered total of the prices.

F.2.10.3 Provide rates and prices that are fixed for the duration of the contract and not subject to adjustment except as provided for in the conditions of contract identified in the contract data.

F.2.10.4 State the rates and prices in Rand unless instructed otherwise in the tender data. The conditions  of  contract  identified  in  the  contract  data  may  provide  for  part  payment  in  other currencies.

F.2.11  Alterations to documents

Do  not  make  any  alterations  or  additions  to  the  tender  documents,  except  to  comply  with instructions issued by the employer, or necessary to correct errors made by the tenderer.   All signatories to the tender offer shall initial all such alterations.

F.2.12  Alternative tender offers

F.2.12.1 Unless otherwise stated in the tender data, submit alternative tender offers only if a main tender offer, strictly in accordance with all the requirements of the tender documents, is also submitted as well as a schedule that compares the requirements of the tender documents with the alternative requirements that are proposed.

F.2.12.2 Accept that an alternative tender offer may be based only on the criteria stated in the tender data or criteria otherwise acceptable to the employer.

F.2.12.3 An alternative tender offer may only be considered in the event that the main tender offer is the winning tender

F.2.13  Submitting a tender offer

F.2.13.1 Submit one tender offer only, either as a single tendering entity or as a member in a joint venture to provide the whole of the works, services or supply identified in the contract data and described in the scope of works, unless stated otherwise in the tender data.

F.2.13.2 Return all returnable documents to the employer after completing them in their entirety, either electronically (if they were issued in electronic format) or by writing legibly in non-erasable ink.

F.2.13.3 Submit  the  parts  of  the  tender  offer  communicated  on  paper  as  an  original  plus  the number of copies stated in the tender data, with an English translation of any documentation in a language other than English, and the parts communicated electronically in the same format as they were issued by the employer.

F.2.13.4 Sign the original and all copies of the tender offer where required in terms of the tender data.  The  employer  will  hold  all  authorized  signatories  liable  on  behalf  of  the  tenderer. Signatories  for  tenderers  proposing  to  contract  as  joint  ventures  shall  state  which  of  the signatories is the lead partner whom the employer shall hold liable for the purpose of the tender offer.

F.2.13.5 Seal the original and each copy of the tender offer as separate packages marking the packages as "ORIGINAL" and "COPY". Each package shall state on the outside the employer's address and identification details stated in the tender data, as well as the tenderer's name and contact address.

F.2.13.6 Where a two-envelope system is required in terms of the tender data, place and seal the returnable documents listed in the tender data in an envelope marked “financial proposal” and  place  the  remaining  returnable  documents  in  an  envelope  marked  “technical  proposal”. Each envelope shall state on the outside the employer’s address and identification details stated in the tender data, as well as the tenderer's name and contact address.

F.2.13.7 Seal  the  original  tender  offer  and  copy  packages  together  in  an  outer  package  that states  on  the  outside  only  the  employer's  address  and  identification  details  as  stated  in  the tender data.

F.2.13.8 Accept  that  the  employer  will  not  assume  any  responsibility for  the  misplacement  or premature opening of the tender offer if the outer package is not sealed and marked as stated.

F.2.13.9    Accept  that  tender  offers  submitted  by  facsimile  or  e-mail  will  be  rejected  by  the employer, unless stated otherwise in the tender data.

F.2.14  Information and data to be completed in all respects

Accept that tender offers, which do not provide all the data or information requested completely and in the form required, may be regarded by the employer as non-responsive.

F.2.15  Closing time

F.2.15.1 Ensure  that  the  employer  receives  the  tender  offer  at  the  email address/address  specified  in  the tender data not later than the closing time stated in the tender data. Accept that proof of posting shall not be accepted as proof of delivery.

F.2.15.2 Accept that, if the employer extends the closing time stated in the tender data for any reason, the requirements of these conditions of tender apply equally to the extended deadline.

F.2.16  Tender offer validity

F.2.16.1 Hold the tender  offer(s) valid for  acceptance by the employer  at  any time during  the validity period stated in the tender data after the closing time stated in the tender data.

F.2.16.2 If requested by the employer, consider extending the validity period stated in the tender data for an agreed additional period with or without any conditions attached to such extension.

F.2.16.3 Accept that a tender submission that has been submitted to the employer may only be withdrawn or substituted by giving the employer’s agent written notice before the closing time for tenders that a tender is to be withdrawn or substituted.

F.2.16.4    Where  a  tender  submission  is  to  be  substituted,  submit  a  substitute  tender  in accordance   with   the   requirements   of   F.2.13   with   the   packages   clearly   marked   as “SUBSTITUTE”.

F.2.17  Clarification of tender offer after submission

Provide clarification of a tender offer in response to a request to do so from the employer during the evaluation of tender offers. This may include providing a breakdown of rates or prices and correction of arithmetical errors by the adjustment of certain rates or item prices (or both). No change  in  the  competitive  position  of  tenderers  or  substance  of  the  tender  offer  is  sought, offered, or permitted.

Note:       Sub-clause  F.2.17  does  not  preclude  the  negotiation  of  the  final  terms  of  the  contract  with  a  preferred  tenderer following a competitive selection process, should the Employer elect to do so.

F.2.18  Provide other material

F.2.18.1   Provide,  on  request  by the  employer,  any other  material  that  has  a  bearing  on  the tender offer, the tenderer’s commercial position (including notarized joint venture agreements), preferencing arrangements, or samples of materials, considered necessary by the employer for the purpose of a full and fair risk assessment. Should the tenderer not provide the material, or a satisfactory reason as to why it  cannot  be provided,  by the time for  submission stated in the employer’s request, the employer may regard the tender offer as non-responsive.

F.2.18.2    Dispose  of  samples  of  materials  provided  for  evaluation  by  the  employer,  where required.

F.2.19  Inspections, tests and analysis

Provide access during working hours to premises for inspections, tests and analysis as provided for in the tender data.
F.2.20  Submit securities, bonds and policies

If  requested,  submit  for  the  employer’s  acceptance  before  formation  of  the  contract,  all securities,  bonds,  guarantees,  policies  and  certificates  of  insurance  required  in  terms  of  the conditions of contract identified in the contract data.

F.2.21  Check final draft

Check the final draft of the contract provided by the employer within the time available for the employer to issue the contract.

F.2.22  Return of other tender documents

If so instructed by the employer, return all retained tender documents within 28 days after the expiry of the validity period stated in the tender data.

F.2.23  Certificates

Include in the tender submission or provide the employer with any certificates as stated in the tender data.

F.3       The employer’s undertakings

F.3.1    Respond to requests from the tenderer

F.3.1.1    Unless  otherwise  stated  in  the  tender  Data,  respond  to  a  request  for  clarification received up to five working days before the tender closing time stated in the Tender Data and notify all tenderers who drew procurement documents.

F.3.1.2 Consider any request to make a material change in the capabilities or formation of the tendering entity (or both) or any other criteria which formed part of the qualifying requirements used  to  prequalify  a  tenderer  to  submit  a  tender  offer  in  terms  of  a  previous  procurement process and deny any such request if as a consequence:

a)    an individual firm, or a joint venture as a whole, or any individual member of the joint venture fails to meet any of the collective or individual qualifying requirements;
b)    the new partners to a joint venture were not prequalified in the first instance, either as individual firms or as another joint venture; or
c)    in the opinion of the Employer, acceptance of the material change would compromise the outcome of the prequalification process.

F.3.2    Issue Addenda

If necessary, issue addenda that may amend or amplify the tender documents to each tenderer during the period from the date that tender documents are available until three days before the tender closing time stated in the Tender Data.  If, as a result a tenderer applies for an extension to the closing time stated in the Tender Data, the Employer may grant such extension and, shall then notify all tenderers who drew documents.

F.3.3    Return late tender offer
Return  tender  offers  received  after  the  closing  time  stated  in  the  Tender  Data,  unopened, (unless  it  is  necessary  to  open  a  tender  submission  to  obtain  a  forwarding  address),  to  the tenderer concerned.

F.3.4    Non-disclosure

Not disclose to tenderers, or to any other person not officially concerned with such processes, information relating to the evaluation and comparison of tender offers, the final evaluation price and recommendations for the award of  a contract, until after the award of the contract to the successful tenderer.

F.3.5    Grounds for rejection and disqualification

Determine whether there has been any effort by a tenderer to influence the processing of tender offers  and  instantly  disqualify  a  tenderer  (and  his  tender  offer)  if  it  is  established  that  he engaged in corrupt or fraudulent practices.

F.3.6    Test for responsiveness

F.3.6.1  Determine,  after  opening  and  before  detailed  evaluation,  whether  each  tender  offer properly received:

a)   complies with the requirements of these Conditions of Tender, b)   has been properly and fully completed and signed, and
c)   is responsive to the other requirements of the tender documents.

F.3.6.2 A responsive tender is one that conforms to all the terms, conditions, and specifications of  the  tender  documents  without  material  deviation  or  qualification.  A  material  deviation  or qualification is one which, in the Employer's opinion, would:

a)    detrimentally  affect  the  scope,  quality,  or  performance  of  the  works,  services  or  supply identified in the Scope of Work,
b)    significantly  change  the  Employer's  or  the  tenderer's  risks  and  responsibilities  under  the contract, or
c)    affect the competitive position of other tenderers presenting responsive tenders, if it were to
be rectified.

Reject a non-responsive tender offer, and not allow it to be subsequently made responsive by correction or withdrawal of the non-conforming deviation or reservation.

F.3.7    Arithmetical errors, omissions and discrepancies

F.3.7.1 Check the highest ranked tender or tenderer with the highest number of tender evaluation points after the evaluation of tender offers in accordance with F.3.11 for:

a)     the gross misplacement of the decimal point in any unit rate;
b)    omissions made in completing the pricing schedule or bills of quantities; or c)    arithmetic errors in:
i)    line  item  totals  resulting  from  the  product  of  a  unit  rate  and  a  quantity  in  bills  of quantities or schedules of prices; or
ii)   the summation of the prices.

F3.7.2  The employer must correct the arithmetical errors in the following manner:

a)    Where there is a discrepancy between the amounts in words and amounts in figures, the amount in words shall govern.
b)    If  bills of quantities or pricing schedules apply and there is an error in the line item total resulting from the product of the unit rate and the quantity, the line item total shall govern and the rate shall be corrected.   Where there is an obviously gross misplacement of the decimal point in the unit rate, the line item total as quoted shall govern, and the unit rate shall be corrected.
c)    Where  there  is  an  error  in  the  total  of  the  prices  either  as  a  result  of  other  corrections required  by this  checking  process  or  in the  tenderer's  addition  of  prices,  the total  of  the prices shall govern and the tenderer will be asked to revise selected item prices (and their rates if bills of quantities apply) to achieve the tendered total of the prices. Consider the rejection of a tender offer if the tenderer does not correct or accept the correction of the arithmetical error in the manner described above.

F.3.8  Clarification of a tender offer

Obtain clarification from a tenderer on any matter that could give rise to ambiguity in a contract arising from the tender offer.

F.3.9  Insurance provided by the employer

If  requested  by  the  proposed  successful  tenderer,  submit  for  the  tenderer's  information  the policies  and  /  or  certificates  of  insurance  which  the  conditions  of  contract  identified  in  the contract data, require the employer to provide.

F.3.10  Acceptance of tender offer

Accept the tender offer, if in the opinion of the employer, it does not present any risk and only if the tenderer:

a)      is   not   under   restrictions,   or   has   principals   who   are   under   restrictions,   preventing
participating in the employer’s procurement,
b)    can, as necessary and in relation to the proposed contract, demonstrate that he or she possesses   the   professional   and   technical   qualifications,   professional   and   technical competence,  financial  resources,  equipment  and  other  physical  facilities,  managerial capability, reliability, experience and reputation, expertise and the personnel, to perform the contract,
c)      has the legal capacity to enter into the contract, d)    is not insolvent, in receivership, under Business Rescue as provided for in chapter 6 of the Companies Act, 2008, bankrupt or being wound up, has his affairs administered by a court or  a  judicial  officer,  has  suspended  his  business  activities,  or  is  subject  to  legal proceedings in respect of any of the foregoing,
e)      complies with the legal requirements, if any, stated in the tender data, and
f)       is able, in the opinion of the employer, to perform the contract free of conflicts of interest.

F.3.11  Prepare contract documents

F.3.11.1 If necessary, revise documents that shall form part of the contract and that were issued by the employer as part of the tender documents to take account of:

a)     addenda issued during the tender period,
b)     inclusion of some of the returnable documents, and
c)      other revisions agreed between the employer and the successful tenderer.

F.3.11.2 Complete the schedule of deviations attached to the form of offer and acceptance, if any.

F.3.12    Complete adjudicator's contract

Unless alternative arrangements have been agreed or  otherwise provided for  in the contract, arrange for  both  parties to  complete formalities for  appointing  the  selected  adjudicator  at  the same time as the main contract is signed.

F.3.13  Notice to unsuccessful tenderers

F.3.13.1   Notify  the  successful  tenderer  of  the  employer's  acceptance  of  his  tender  offer  by completing and returning one copy of the form of offer and acceptance before the expiry of the validity period stated in the tender data, or agreed additional period.

F.3.13.2   After the successful tenderer has been notified of the employer’s acceptance of the
tender, notify other tenderers that their tender offers have not been accepted.

F.3.14  Provide copies of the contracts

Provide to the successful tenderer the number of copies stated in the Tender Data of the signed copy of the contract as soon as possible after completion and signing of the form of offer and acceptance.

F.3.15  Provide written reasons for actions taken

Provide upon request written reasons to tenderers for any action that is taken in applying these conditions of tender, but withhold information which is not in the public interest to be divulged, which is  considered  to  prejudice  the  legitimate  commercial  interests  of  tenderers  or  might prejudice fair competition between tenderers.

Tel:  +27 (10) 035 1111

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