Request for Tender - Goods and Services
Request for tender
(“Rft”)
BY
[Insert name of department]
FOR
Tender Description: [Insert description of RFT]
RFT Number: [Insert RFT No.]
Enquiries about this RFT should be directed to the Contact
Officer:
Name:[Insert name of contact officer]
Telephone:(03) [Insert telephone number]
Email:[Insert email address]
Facsimile:(03) [Insert facsimile number]
Address:[Insert street address]
Place to lodge Tender:
Tender Box
[Insert Department Name]
[Insert Street Address]
or
Electronic Tender Box
[Insert details of website]
Closing Time:
[Insert tender closing time and date] (Tasmanian time)
Issue Date:
[Insert date RFT starts]
Pre-Tender Briefing [Note to Drafters: Delete if not
relevant]:
A pre-tender briefing session will be held at:
[Insert details of time, date and place]
16
GOODS & SERVICES VERSION
Cover PageStandard Request for Tender for Goods and Services
4851-17 | Version No. 15 – July 2019
Contents
Cover Page
Contents Page
Part One-Important Information for Tenderers
Part Two-Conditions of Tender
Part Three-Specification and Required Additional Information
Part Four-Conditions of Contract
Part Five-Tender Form
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Version 11.1
16
ContentsStandard Request for Tender for Goods and Services
Tender No. [Insert Tender number]4851-17 | Version No. 15 – July
2019
Part OneImportant information for tenderersExplanation of the
RFT documentationConditions of Tender
The Conditions of Tender are the conditions on which the
Department will receive and evaluate Tenders. The Department may
reject a Tender that does not comply with all the terms of the
RFT.
The Conditions of Tender also specify the evaluation criteria
against which Tenders will be evaluated.
Specification
The Specification provides a comprehensive description of the
Department’s Requirements.
Conditions of Contract
The Conditions of Contract contain the terms of the contract
which the successful Tenderer must sign. It may be varied only by
agreement between the Tenderer and the Department during the Tender
evaluation and negotiation process.
A contract to supply the Department’s Requirements is not formed
until counterparts of the Conditions of Contract have been signed
and exchanged between the Department and the Tenderer.
Tender Form
The Tender Form is a required form which must be returned as
part of the Tender. A Tender is likely to be rejected if this Form
is not used. A Tender must contain all the information and details
required by this RFT.
Pre-Tender briefing
If a pre-tender briefing is to be provided, details are set out
on the Cover Page of this RFT. It is strongly recommended that
Tenderers attend.
Contact Officer for RFT enquiries
During the tender period, prospective Tenderers may seek
clarification of the general or technical areas of this RFT from
the Contact Officer. Contact details are provided on the Cover Page
of this RFT. Unauthorised communication with other staff may lead
to disqualification of the Tender.
Lodging a Tender
Details for lodgement of Tenders are on the Cover Page of this
RFT and in clauses 13, 14 and 15 of the Conditions of
Tender.
Prospective Tenderers should note that one permitted method of
lodgement is electronic lodgement into the specified Electronic
Tender Box. Details for electronic lodgement are in clauses 14 and
15 of the Conditions of Tender.
By lodging a Tender, a Tenderer may become bound by the
Conditions of Tender and in particular, clauses 3, 4, 5, 11, 12,
13, 14, 18 and 19.
Assistance to prepare a Tender
Information on preparing a Tender is available on the Tasmanian
Government’s Purchasing website at <> under Winning
Government Business.
Conditions about the Professional Standards Act 2005
(Tas)Conditions of Appointment
The Department will only appoint, as successful Tenderer, a
Tenderer who agrees to the following conditions, when relevant.
No scheme in force
If no scheme in force under the Professional Standards Act 2005
(Tas) applies to the Tenderer, the Tenderer must waive all present
and future rights, against the Crown, to claim any limitation of
liability provided by a future scheme under that Act, in relation
to future legal liability, claims or proceedings arising from, or
attributable to, the Tenderer delivering the Department’s
Requirements including a wrongful (including negligent) act or
omission.
Scheme in force
If a scheme applies to the Tenderer, the Tenderer’s liability
under the Contract will be limited in accordance with and subject
to the scheme.
Increase to maximum liability under scheme
To the extent that the scheme allows the Tenderer to apply for a
higher maximum amount of liability than would otherwise apply to
the Tenderer under the scheme, the Tenderer must ensure that the
limit of the Tenderer’s liability under the scheme is not less than
the level described in the Specification.
Crown policy on confidentiality of information in Government
contracts
The Crown is committed to ensuring that Government contracting
is conducted in an open and transparent manner. The Crown policy in
relation to confidentiality in Government contracts is set out in
clause 20.6 of the Conditions of Tender.
Important Information for Tenderers Page 3Standard Request for
Tender for Goods and Services
Tender No. [Insert tender number]4851-17 | Version No. 15 – July
2019
Part TwoConditions of Tender1. Definitions
In this RFT, unless the context precludes it:
“Closing Time” means the closing time (Tasmanian time) and date
for submitting Tenders shown on the cover page of this RFT or as
extended under clause 3.2;
“Conditions of Contract” means the Conditions of Contract
contained in Part “Four” of this RFT;
“Contact Officer” means the person identified as Contact Officer
on the cover page of this RFT;
“Contractor” means the Person with whom the Crown enters into a
contract to provide the Department’s Requirements;
“Crown” means the Crown in Right of Tasmania;
“Department” means the Tasmanian Department named on the cover
page of this RFT;
“Department’s Requirements” means the goods and services
described in the Specification;
“Electronic Tender Box” means the electronic website for lodging
electronic Tenders, on the Tasmanian Government’s Integrated
Purchasing Web Site at <>;
“Electronic Tender System” means the Tasmanian Government
electronic tender system, on the Tasmanian Government’s Integrated
Purchasing Web Site at <> for the downloading and submission
of tender documentation electronically;
“GST” means any tax imposed under any GST law and includes GST
within the meaning of the GST Act;
“GST Act” means the A New Tax System (Goods and Services Tax)
Act 1999 (Cwlth) as amended;
“GST Law” means the GST law as defined in the GST Act and
includes any Act of the Parliament of Australia that imposes or
deals with GST;
“Person” includes a natural person, a corporation, a
partnership, a board, a joint venture, an incorporated association,
a government, a local government authority and an agency;
“Request for Tender” or “RFT” means this document inviting
Tenderers to offer to deliver the Department’s Requirements by
submitting a Tender as provided in this document;
“RFT Number” means the RFT number shown on the cover page of
this RFT;
“Scheme” means a scheme in force under the Professional
Standards Act 2005 (Tas) for limiting the occupational liability of
members of an occupational association;
“Specification” means the Specification in Part “Three” of this
RFT;
“System Failure” in relation to Electronic Tender System means
an outage, fault or delay occurring for any reason, including,
without limitation:
technical difficulties with the performance or operation of the
Electronic Tender System or another person’s software, equipment or
systems; or any outages, faults or delays with the Internet or
other infrastructure involved in the transmitting of any document
associated with this tender process;
“Tender Box” means the locked box at the address on the cover
page of this RFT exclusively to receive responses to the RFT;
“Tender” means the documents constituting a Tenderer’s offer to
deliver the Department’s Requirements under this RFT;
“Tender Description” means the Tender description shown on the
cover page of this RFT;
“Tenderer” means a Person who offers to deliver the Department’s
Requirements under this RFT;
Rights and obligations
Because the Department is part of the Crown, rights and
obligations of the Department under this RFT are to be read and
construed as rights and obligations of the Crown.
ReservationsNo warranty as to accuracy
The Department does not warrant the accuracy of the content of
the RFT and the Department is not liable for any omission from the
RFT.
Right to vary0. The Department may from time to time, by issuing
written addenda to the RFT, extend the Closing Time or otherwise
add to or vary the RFT.Copies of all addenda to the RFT will be
sent to each person who has been issued with, or downloaded, the
RFT, to the person’s contact address provided to the Department.All
addenda to the RFT become part of the RFT.Where an addendum has
been issued, the Tenderer must include with their Tender an
acknowledgement that the addendum has been received and accounted
for in the Tender.Indicative quantities only
Quantities stated in the RFT are indicative and for tendering
purposes only unless specifically stated otherwise. Where
quantities are indicative, the Department will be liable to accept
only the quantities ordered, subject to contract.
Rights to cease or suspend
The Department may discontinue or suspend the RFT process.
No obligation to enter into any binding contract
The RFT is not to be construed as making any express or implied
representation, undertaking or commitment by the Department that it
will enter into a binding contract with any Person to supply the
Department’s Requirements.
Right to reject
The Department may reject a Tender which does not comply with
the terms of the RFT.
Right to accept all or part of a Tender
The Department may accept all or part of a Tender at the price
or prices tendered unless the Tender states specifically to the
contrary.
No obligation to accept any Tender
The Department is not obliged to accept the lowest priced or any
other Tender.
No representation is to be binding
No representation made by or on behalf of the Crown about the
Tender or the RFT (or their subject matter) binds the Crown unless
it is in writing and is incorporated into the Conditions of
Contract or its annexures.
Incomplete or illegible Electronic Lodgement
If a Tender lodged using the Electronic Tender System cannot be
read, or is corrupted, illegible, inadequate or incomplete because
of encryption, transmission, storage or decryption, so that it is
impossible to determine whether the essential requirements of the
RFT have been met, the Department, in its sole and absolute
discretion, may reject the Tender.
Unauthorised communication
The Tenderer must direct all communications through the Contact
Officer unless he or she directs otherwise. Unauthorised
communication with other Department staff may lead to
disqualification of the Tender.
Confidentiality RFT remains property of the Department
The RFT remains the property of the Department and may be used
only to prepare a Tender.
Use of RFT is restricted
Except for information available to the public generally (other
than by breach of these Conditions), a person receiving the RFT
must not publish, disclose or copy any of its content, except to
prepare a Tender.
Tenderer must not disclose information
The Tenderer must keep confidential all information provided by
the Crown, as part of, or in connection with, the RFT.
Tenders become property of the Department
All Tenders become the property of the Department, which may
reproduce all or any part of a Tender for Tender evaluation.
Department’s right to use a Tender
Despite any confidentiality or intellectual property right of
the Tenderer in the successful Tender that gives rise to a binding
contract with the Crown:
the Department may reproduce all or any part of that Tender in a
contract awarded to the Tenderer, without reference to the
Tenderer; subject to paragraph (c) of this subclause, either party
may publish all or any part of that Tender that is included in a
contract, without reference to the other; andneither party may
publish any part of that Tender that the Head of Agency has
determined should be confidential, during the period determined by
the Head of Agency.Confidentiality of Tender to be preserved
Subject to the previous subclause, the Crown and the Tenderer
must hold the Tender in confidence, so far as the law allows,
except if:
0. the information is available to the public generally, other
than by breach of this obligation;0. a law requires a party to
file, record or register something that includes information in the
Tender;0. disclosure is necessary or advisable to get a consent,
authorisation, approval or licence from a governmental or public
body or authority;it is necessary or advisable to make disclosure
to a taxation or fiscal authority; it is necessary to provide the
information in the Tender in answer to a question asked of a
Minister in the Parliament, or otherwise to comply with a
Minister’s obligations to Parliament; orit is disclosed
confidentially to a party’s professional advisers:to get
professional advice about this tender process; or otherwise to
consult such professional advisers.Content and format of
TenderContent of Tender
A Tender must include all the information requested in the
Specification and in other parts of the RFT.
Mandatory requirements
All items, features and functions specified in the RFT are
mandatory requirements unless expressly stated otherwise. If a
Tender does not comply with a mandatory requirement, it may still
be considered by the Department, but the Department, in its sole
and absolute discretion, may reject it under clause 3.6.
Format of Tender
The Tenderer must submit the Tender under cover of the Tender
Form provided in Part “Five” of this RFT. The Tender Form must be
completely filled in, and be accompanied by any other supplemental
documents necessary to make the Tender complete. A Tenderer may
reproduce the Tender Form in an expanded format to provide
additional space for response.
Unnecessary responses
Unnecessarily elaborate responses or other presentations beyond
what is sufficient to present a complete and effective proposal are
neither required nor desired. Elaborate artwork and bindings,
expensive visual and other presentation aids are not necessary.
PriceCurrency
All Monetary amounts are to be expressed in Australian
Dollars.
GST exclusive
The Tenderer must quote all prices excluding GST. The Conditions
of Contract allows for the payment of GST (clause 33).
Australian Business Number (ABN)
The Tenderer must either provide its Australian Business Number
(ABN)or state why the Tenderer does not have an ABN. If the
Tenderer does not register or disclose an ABN, then PAYG
Withholding Tax may apply and the Department is required by law to
deduct the relevant amount from each contract payment and to remit
that amount to the Australian Taxation Office.
ComplianceImplied compliance
The Tenderer will be taken to agree with all the Conditions of
Tender, Specification and the Conditions of Contract, unless the
Tender states otherwise.
Non-compliance
If a Tender does not fully comply with the Conditions of Tender,
the Specification and Conditions of Contract, the Tenderer must
include a statement in the Tender specifying each condition or
requirement with which the Tenderer does not agree or comply and
indicating, for each condition or requirement, whether the
offer:
Partially Complies
(This means:
-If a clause imposes a contractual condition, that the condition
can only be met subject to certain qualifications. Those
qualifications must be stated in full; and
-If a clause specifies a characteristic or performance standard,
that the condition can only be met subject to certain conditions.
If this is the case, and the Tenderer is prepared to make good on
the condition, characteristic or performance standard, the Tenderer
must state or describe how the non-compliance is to be made
good.)
Does Not Comply
(This means:
-That the offer does not meet the complete contractual
condition, or characteristic or performance standard of the clause.
Full details of the non-compliance must be stated.)
OR IS
Alternative
(This means that the goods or services either:
0. do not require the feature; or 0. fully comply in a manner
different from that described.
In either case a full explanation must be provided.)
Prominence to statements of non-compliance is required
The Tenderer must give prominence to statements of
non-compliance (as described in clause 9.2) - it is not sufficient
if the statement appears only as part of an attachment to the
Tender, or is included in a general statement of the Tenderer's
usual operating conditions.
Alternative TenderIdentification
The Tenderer may submit an alternative proposal if it is clearly
identified as an “Alternative Tender” wherever it fails to comply
with the specified requirements.
Supplementary material to be included
A Tenderer who submits a Tender which meets the Department’s
Requirements in an alternative and practical manner, taking into
account the totality of the requirements, must include any
supplementary material and associated prices, which demonstrates,
in detail, that the alternative will fully achieve all the
requirements.
Novel and innovative offers are encouraged
Tenderers are encouraged to offer options or solutions that, in
a novel or innovative way, contribute to the Department’s ability
to carry out its business in a more cost-effective manner. These
may relate to the functional, performance and technical aspects of
the requirements or to opportunities for more advantageous
commercial arrangements.
No obligation to consider Alternative Proposal
The Department reserves the right either to consider Alternative
Tenders on their merits or not to consider them further.
Preparation of Tenders
The Department will neither be responsible for, nor pay for, any
expense or loss incurred by a Tenderer for:
0. preparing or lodging a Tender; or0. providing additional
information or clarification during the evaluation of a
Tender.Validity
A Tender constitutes an irrevocable, unalterable offer by the
Tenderer to the Crown which must remain valid and open to be
accepted for 90 days from the Closing Time of the RFT and may be
extended by written agreement.
Non-electronic lodgement of a TenderMethod of lodgement
A Tenderer who elects not to lodge a Tender using the Electronic
Tender System, must lodge the Tender as follows.
The original Tender, marked accordingly, [Note for Drafters:
Insert if required “plus x copies”], [Note for Drafters: Insert if
required “plus a copy on disk or CD”], must be placed in an
envelope clearly marked with the RFT Number, Closing Time and
Tenderer’s name, and be lodged at the address shown on the cover
page by either:
0. placing it in the Tender Box; or0. posting it so the
Department receives it,
before the Closing Time.
Facsimile
A Tender submitted by facsimile before the Closing Time will be
considered only if an identical tender, complying with this RFT, is
dispatched on the same day and is delivered to either the Tender
Box (by hand), or the Department (by mail), within two Business
Days after the Closing Time.
Implied agreement
By lodging a Tender in accordance with clauses 13.1 and 13.2 and
in consideration of the Department starting to evaluate the Tender,
the Tenderer agrees to be bound by these Conditions of Tender and
in particular, clauses 3, 4, 5, 11, 12, 13, 18 and 19.
Electronic lodgement of a TenderMethod of lodgement
A Tenderer who elects to lodge a Tender using the Electronic
Tender System must lodge the Tender in the Electronic Tender Box
using the Electronic Tender System before the Closing Time and
following the electronic lodgement procedures detailed in these
Conditions of Tender.
Format
A Tenderer lodging a Tender using the Electronic Tender System
must lodge the Tender using a format and the naming conventions in
clause 15. Failure to comply with the format or the naming
conventions may result in the Tender not uploading successfully or
being rejected.
File size
A single submission of combined file sizes for a Tender lodged
using the Electronic Tender System must not exceed 500 megabytes
(500Mb) with each individual file to be less than 100 megabytes
(100Mb). If a Tender exceeds the specified file size limit, the
Tenderer must either:
0. lodge the Tender in separate parts not exceeding the file
size limit, each part to be clearly identified as part of the
Tender; or0. lodge the Tender as a compressed (zip) file not
exceeding the file size limit; or0. lodge the Tender in accordance
with clause 13.Time for completion of lodgement
The relevant page for the Tender on the Electronic Tender System
will not be accessible after the Closing Time. Lodging a Tender
must, therefore, be completed by that time.
User problems
If a Tenderer has problems using the Electronic Tender System,
the Tenderer must immediately notify the Contact Officer of this
before the Closing Time. If the Tender is not successfully lodged
using the Electronic Tender System by the Closing Time then the
Tender will be a Late Tender and will be accepted, if at all, only
under clause 16.
Meaning of Closing Time
A Tenderer using the Electronic Tender System agrees that, to
ascertain the Closing Time, the date and time appearing on the
Electronic Tender System website is the conclusive date and time
for the lodgement. If that date and time is inconsistent with the
date and time of the Tenderer’s system, then the former
prevails.
No warranty by Department of unauthorised Internet access
A Tenderer using the Electronic Tender System acknowledges
that:
0. the Department does not warrant that unauthorised access to
information and data transmitted via the Internet will not occur. A
Tenderer releases the Department and its staff from, and
indemnifies them against all claims that arise because unauthorised
access occurs during the transmission of information via the
Internet; and0. if the Electronic Tender System suffers System
Failure, the Department does not warrant that it will be possible
to successfully upload (i.e. lodge) a Tender into the Electronic
Tender Box.Waiver of liability for loss or damage
Lodgement of a Tender, using the Electronic Tender System, is at
the Tenderer’s sole risk.
Viruses, worms and disabling features
A Tenderer lodging a Tender using the Electronic Tender System
acknowledges that it has taken reasonable steps to ensure that the
Tender is free of viruses, worms or other disabling features which
may affect Electronic Tender System. The Department at its sole and
absolute discretion may reject a Tender found to contain a virus,
worm or other disabling feature.
Implied agreement
By lodging a Tender using the Electronic Tender System and in
consideration of the Department starting to evaluate the Tender,
the Tenderer agrees to be bound by the Conditions of Tender and in
particular, clauses 3, 4, 5, 11, 12, 14, 18 and 19.
Format and naming conventions for electronic
lodgementsFormat
A Tender lodged electronically must be submitted in one of the
following formats:
· Rich Text Format (RTF);
· Adobe Acrobat - Portable Document Format (PDF);
· Microsoft Word (DOC);
· Microsoft Excel (XLS); or
· Image Files (JPG, GIFF, TIFF).
It is recommended that the Tender file/s be compressed into a
zip format.
Conventions
A Tender lodged electronically must comply with the following
naming conventions:
· File names must be in English;
· File names that contain a space, must have an underscore in
the space’s place (“ _ “)
· File names must contain the RFT Number, the name of the
document and the Tenderer’s name.
(For example: “A123_Tender_Submission_ABC_Company.doc” would be
a suitable file name.)
Late TendersDepartment may not accept
Late Tenders will not be accepted unless the Contact Officer is
satisfied that:
0. circumstances beyond the Tenderer’s control caused the
lateness; and0. accepting a late Tender will not compromise the
integrity of the tendering process or provide an unfair advantage
to the Tenderer lodging the late Tender.Return of late Tenders
A late Tender that is not accepted will be marked on the
envelope with the time and date of receipt, and be returned
unopened to the Tenderer, if sufficient address details are
available.
Evaluation of TendersEvaluation criteria
The evaluation process will be undertaken against the following
evaluation criteria and weightings:
[Note for drafters: Refer to Treasurer's Instructions and DTF
Procurement Better Practice Guidelines.]
·
Additional clarification
During the evaluation process, the Tenderer may be required to
provide clarification of its Tender.
Right to negotiateVariation of Tender
During the evaluation process, the Department may negotiate with
any Tenderer to vary their Tender.
Department may negotiate with several Tenderers
The Department reserves the right to negotiate with several
Tenderers to settle the commercial terms to form a contract.
Formation of contractFormal agreement required
The successful Tenderer must sign a formal agreement containing
the terms in the Conditions of Contract supplemented by relevant
information, requirements or variations:
0. contained in the Specification;0. contained in the successful
Tender;0. arising during the Tender evaluation; and0. arising out
of negotiations after the Tender evaluation.Exchange of signed
counterparts required
Subject to clause 13.3 and 14.11, no contractual relationship or
other obligation arises between the Department and a Tenderer, for
the supply of the Department’s Requirements, until the Department
and the successful Tenderer formally exchange signed counterparts
of the Conditions of Contract. This clause applies despite any oral
or written advice to a Tenderer that their Tender is successful or
has been, or will be, accepted.
Government procurement policies
The Tasmanian Government has purchasing policies that form part
of these Conditions of Tender.
Tasmanian and Australian industry development
The Tasmanian Government is committed to enhancing opportunities
for Tasmanian industry development.
Australia and New Zealand Government Procurement Agreement
The Tasmanian Government is a party to the Australia and New
Zealand Government Procurement Agreement (“ANZGPA”). It is
therefore committed to the application of the ANZGPA principles
which ensure that Australian and New Zealand suppliers are given
equal consideration and opportunities to supply goods and services
to Commonwealth, State and Territory Governments.
Australia-United States Free Trade Agreement
The Tasmanian Government is a participant in the Government
Procurement Chapter of the Australia-United States Free Trade
Agreement (AUSFTA). It is therefore committed to the application of
the AUSFTA principles which ensure that United States suppliers are
treated on a basis which is no less favourable than the most
favourable treatment provided to suppliers of goods and services
from Tasmania, Australia or New Zealand.
Intentionally not usedDumped Goods
Tenderers are alerted to the following compulsory Tasmanian
Government procurement policy which will be included in the formal
contract to deliver the Department’s Requirements.
“Dumped Goods, that is goods from overseas that are imported
into Australia at less than their normal value, causing or
threatening to cause material injury to an Australian industry
production like goods, or materially hindering the establishment of
such an industry, are not acceptable.
Where it is reasonably suspected that Dumped Goods are being
supplied, the Agreement will be suspended to enable the suspicion
to be confirmed or dismissed under the Commonwealth Customs
legislation. Any costs or losses incurred by the Crown as a result
of any suspension under this clause shall be borne and paid for by
the Contractor.
Where the goods are subsequently determined by the Commonwealth
Minister for Customs as Dumped Goods the Agreement will be
terminated. Any consequential costs or losses of the Contractor
shall be borne and paid for by the Contractor. In addition, any
extra costs incurred by the Crown will constitute a debt
recoverable from the Contractor.”
Crown policy on Confidentiality Provisions in Government
contracts0. In this clause:
accountable authority has the same meaning as in the Financial
Management Act 2016 (Tas).
Confidentiality Provision means a provision that, if included in
a contract, would restrict or prohibit the capacity of any party to
that contract to lawfully disclose any term of, or other
information in or concerning, the contents of, that contract.
TI C-1 means Treasurer's Instruction C-1 issued under the
Financial Management Act 2016 (Tas).
Except in accordance with TI-C1, contracts are not to include
any Confidentiality Provision. Where inclusion of a Confidentiality
Provision is approved in accordance with TI C-1, the terms of the
contract will be drafted to give effect to the decision of the
accountable authority, including any decision on any limit on the
period of confidentiality.The restriction on Confidentiality
Provisions does not apply to:(i) pre-contract information which
passes between the parties in order to enable the contract to be
performed; or(ii) the services or products that flow from the
performance of the contract, including information that is brought
into existence pursuant to the contract. Subject to any
Confidentiality Provision included in a contract, a party to a
contract may publish all or any part of the contract without
reference to another party.
.
DebriefingRequest for debriefing
Unsuccessful Tenderers are encouraged to request a debriefing
from the Department to discuss the reasons for their non-selection.
A Tenderer who would like a debriefing should contact the Contact
Officer.
Timing for debriefing
If requested to do so, the Department will provide a debriefing
for an unsuccessful Tenderer after either:
0. a contract has been exchanged for the supply of the
Department’s Requirements; or0. the Department decides not to award
a contract for the supply of the Department’s
Requirements.Complaints process
A Tenderer may lodge a complaint if the Tenderer believes the
Department’s tender process has not complied with the Tasmanian
Government’s procurement policies. Further information on the
formal complaints process is available from the Tasmanian
Government website at www.purchasing.tas.gov.au, or may be obtained
in hard copy from the Contact Officer.
Zero tolerance towards violence against women0. Violence against
women is defined by the United Nations as “any act of gender based
violence that results in or is likely to result in physical, sexual
or psychological harm or suffering to women”.The Crown upholds a
zero tolerance policy towards violence against any person in the
workplace. The Tenderer acknowledges and undertakes to uphold a
zero tolerance policy towards violence against any person in the
workplace in its interaction with employees, agents and
subcontractors of the Crown and in delivery of the Department’s
Requirements.The Tenderer must and will ensure that its employees,
agents and subcontractors will at all times in delivery of the
Department’s Requirements act in a manner that is non-threatening,
courteous and respectful.If the Crown reasonably believes that any
of the Tenderer’s employees, agents or subcontractors are failing
to comply with the behavioural standards specified in this clause
then the Crown may in its absolute discretion:prohibit access by
the relevant employees, agents or subcontractors to the Crown’s
premises; anddirect the Tenderer to withdraw the relevant
employees, agents or subcontractors from providing the Department’s
Requirements.Special conditionsProvisions about the Professional
Standards Act 2005 (Tas)0. Conditions of appointment
The Department will only appoint, as successful Tenderer, a
Tenderer who agrees to the following conditions, when relevant.
No Scheme in force
If no Scheme applies to the Tenderer, the Tenderer must waive
all present and future rights, against the Crown, to claim any
limitation of liability provided by a future Scheme in relation to
future legal liability, claims or proceedings arising from, or
attributable to, the Tenderer delivering the Department’s
Requirements including a wrongful (including negligent) act or
omission.
Scheme in force
If a Scheme applies to the Tenderer, the level of the Tenderer’s
liability under the Contract will be limited in accordance with and
subject to the Scheme.
Increase to maximum liability under Scheme
To the extent that the Scheme allows the Tenderer to apply for a
higher maximum amount of liability than would otherwise apply to
the Tenderer under the Scheme, the Tenderer must ensure that the
limit of the Tenderer’s liability under the Scheme is not less than
the level described in the Specification.
Other special conditions
Other special conditions applying to this RFT may be attached as
an Annexure to the Conditions of Tender or the Specification.
Conditions of Tender Page 15Standard Request for Tender for
Goods and Services
Tender No. [Insert tender number]4851-17 | Version No. 15 – July
2019
Part ThreeSpecification
[Insert Tender description]RFT Number: [Insert RFT No.]
[Note for Drafters: Drafters must complete this section.]
A list of headings and explanatory notes is included to assist
you to prepare the Specification. Whether you choose to use all or
any of the following headings, or whether you should use additional
headings, will depend on what will give the Tenderers a clear,
logical and complete description of the requirements.
Drafters:
must ensure that their Specification addresses the matters
described in section 4.2 of these explanatory notes; and
in completing this part of their Specification, should refer to
Special Condition 23.1 (refer Part Two of this RFT) and the
additional guide note attached to clause 42 of the Conditions of
Contract (refer Part Four of this RFT).
The Specification should only be as complex as the requirement
demands]
Table of Contents
A table of contents may be useful for long and/or complex
specifications.
1. Introduction
An introduction “sets the scene” by providing a brief
explanation of the requirement and its context, for example, the
application, purpose or function of the required product or
service.
Scope
If the detailed requirement is lengthy or complex, this section
may be used to summarise the extent and limitations of the
requirement. A full description of each element must be included in
the Statement of Requirements (described below).
The scope may include (but not be limited to):
· a brief description of the requirement;
· the application, purpose or function of the product
required;
· anticipated demand;
· the period of the contract;
· whether the Tenderer will be required to supply, install
and/or commission the requirement;
· whether the Tenderer will be required to provide training and
documentation;
· service or maintenance requirements;
· the place of delivery, installation and/or commissioning;
and
· anything that the Tenderer is not required to do or provide
(that might otherwise normally be assumed to be part of the
requirement) – for example the Department may supply certain
equipment, software etc.
Background
Potential Tenderers may gain a better understanding of the
requirement if they are provided with information on how and why
the requirement arose.
Background information may include:
· the origin of the requirement;
· a fuller explanation of the context of the requirement;
· a description of the current system or equipment that is being
replaced;
· how the requirement is related to earlier acquisitions or
future requirements; and
· what other potential solutions have been considered and why
they were rejected.
Statement of RequirementsGeneral
This section should describe the requirement in detail. Detailed
requirements are best defined by describing functional and
performance characteristics as these allow Tenderers to offer
alternative or innovative solutions. Technical characteristics may
also need to be defined where functional and performance
characteristics alone are insufficient to adequately define the
requirement.
Where applicable, detailed requirements may include:
· a list of outputs (products / services) to be delivered;
· information on the application or purpose of the product;
· an outline of the functional characteristics required to
ensure the desired outcome;
· required performance levels (quantity, quality, timing);
· quality assurance requirements – used to assess the Tenderer’s
compliance with specified quality requirements.
· performance measures and targets – used to assess the extent
that the requirement has been delivered and whether the specified
performance levels, including cost, have been met. These measures
and targets are linked to payments and continuation of the
contract;
· acceptance testing requirements - including the tests
required, what proof is required that the product has passed those
tests (eg. certificates), who is responsible for developing the
tests and who is responsible for conducting the tests. If tests are
complex, they may be undertaken externally;
· technical characteristics – physical aspects (eg. dimensions /
colour); material properties; detailed plans / designs / blueprints
etc.;
· environmental constraints and limitations - if the environment
in which the required product will operate places limits or
constraints on the design, performance or operation of the product,
this should be detailed. Environmental constraints include:
· the physical environment;
· storage conditions;
· the operating environment and the need for interchangeability
or compatibility with existing equipment and systems;
· ergonomic requirements;
· personnel safety aspects;
· access to locations or staff;
· availability of energy and other services; and
· environmental considerations, for example, recycling,
energyefficient and environmentallyfriendly constraints;
· security and confidentiality requirements – for example,
confidentiality of personal and commercial information or
safeguarding expensive equipment;
· whole-of-life costs (including servicing and maintenance
requirements and possible future modifications and upgrades) – if a
product will, or may, need to be maintained, modified or upgraded,
you need to address issues of reliability, availability and
maintainability in order to fully evaluate wholeoflife costs. You
will need to provide information on possible future upgrades, when
they may occur, and what additional or enhanced capability is, or
may be, required. These issues need to be addressed regardless of
whether maintenance, modifications and upgrades form part of the
specification, are to be sought separately, or are to be undertaken
by your Department;
· potential for trade-ins;
· training requirements - specify what training is required (for
example in the installation, operation and/or maintenance of the
product / or use of a service), the level of training required,
number of sessions and venue. Tenderers may be asked to provide
details of the experience and accreditation of the proposed
training providers;
· contract management requirements - for example, reporting
requirements (content, frequency, format);
· other documentation requirements, for example, manuals;
· installation and/or commissioning requirements;
· preservation and packaging requirements;
· a statement of responsibilities – clearly specifying the
responsibilities of both the contractor and the contracting agency;
and
· transition arrangements – both at the commencement and at the
end of the contract.
Professional Standards Act 2005 (Tas)
The Professional Standards Act 2005 (Tas) provides for the
limitation of liability of members of occupational associations in
certain circumstances. Under Section 27 of the Act, a discretion
may be conferred on a member to obtain an approval for a higher
maximum amount of liability than would otherwise apply.
Drafters should therefore consider that if such a discretion
exists whether an approval should be required. If it is to be
required, the relevant higher amount must be added to the
Specification prior to this Agreement being entered into.
For example: “To the extent that an applicable Scheme allows the
Tenderer to apply for a higher maximum amount of liability than
would otherwise apply to the Tenderer under the Scheme, the
Tenderer must ensure that the limit of the Tenderer’s liability
under the Scheme is not less than [$].
If the Department is unable to settle this requirement at the
time the RFT is issued, it should reserve the right, if permitted
by relevant Scheme, to require a higher level of liability once it
has had the opportunity to review the Tenders. If the Department
then determines that the Scheme allows an application for a higher
maximum level of liability and an increase to the maximum level of
liability would be appropriate, a letter of clarification,
detailing the requirement, should be issued to all Tenderers.
Documents
The Specification may refer to other documents. These documents
form part of the Specification. Each of these documents should be
listed and information provided on where they can be readily found
(for example, on a website) or copies attached. If only part of a
document is relevant, refer to that part only. Examples
include:
· Standards - for example, Australian or International
Standards, the Tasmanian Government Web Publishing Standards
etc.;
· Codes of Practice;
· Legislation; and
· other Government directives.
Implementation Timetable
The implementation timetable should include all major
milestones, for example, the contract commencement and completion
dates, dates when deliverables are due etc.
Information to be provided by the Tenderer
This section must be considered and where appropriate, completed
by Drafters. This section should provide a checklist of the
information to be provided by the Tenderer (specifying required
format and quantity), for example:
· Completed Tender Form (including Pricing Schedule)
· References
· Referee contact details
· Details of any limit of the Tenderer’s occupational liability
under any relevant Scheme in force under the Professional Standards
Act 2005 (Tas) together with a copy of the relevant Scheme
· Annual Reports
· Financial Statements
· Quality Assurance Certificates
· Drawings
· Manuals
Glossary
A glossary should be used to define terms that appear in the
specification and that may not be understood by Tenderers. This may
include symbols, abbreviations, technical terms and acronyms.
Attachments
List all the attachments that are referred to elsewhere in the
specification.
Specification Page 6Standard Request for Tender for Goods and
Services
Tender No. [Insert tender number]4851-17 | Version No. 15 – July
2019
Part FourConditions of Contract
Details
Parties
Crown, Contractor
Crown
Name
The Crown in Right of Tasmania represented by the Department of
(“Crown”)
Address
Telephone
Fax
Attention
Contractor
Name
(“Contractor”)
Incorporated in
ACN/ABN
Address
Telephone
Fax
Attention
Recitals
AThe Crown has accepted a tender from the Contractor for the
supply of Goods and Services (defined in clause 1) for the
Department of [ ] ("Department").
BIt is a condition of the tender, made by the Contractor and
accepted by the Crown, that the parties will enter into this
Agreement.
Date of agreement
See Signing page
Conditions of ContractPage 1Standard Request for Tender for
Goods and Services
Tender No. [Insert tender number]4851-17 | Version No. 15 – July
2019
Conditions of Contract
Tender No. [Insert tender number]
Page 16
Standard Request for Tender for Goods and Services
Version No. 3 January 2005
General Terms
1. Definitions and interpretationDefinitions
In this Agreement unless the contrary intention is
expressed:
"Acceptance" means the notice issued by the Department to the
Contractor under clause 4.2 (Conformance with Specification or
sample) or which is taken to have occurred under that clause;
"Agreement" means this Agreement including all Schedules and
Annexures;
"Asbestos" means asbestos as defined by the Work Health and
Safety Regulations 2012 (Tas);
"Business Day" means any day on which authorised deposit-taking
institutions, as defined in the Banking Act 1959 (Cwlth), are open
for business in [Note to Drafters: Add Hobart, Launceston or
Burnie, whichever is the most appropriate];
"Contract Price" means the sum described in Schedule 2;
"Contract Material" means all material brought, or required to
be brought, into existence as part of, or for the purposes of
providing the Services including, but not limited to, documents,
information and data stored by any means;
"Contractor", where the context admits, includes the
Contractor’s employees, authorised sub-contractors and agents;
"Crown" includes the Crown’s employees, authorised
sub-contractors and agents;
"Crown Material" means any material provided by or on behalf of
the Crown to the Contractor for the purpose of this Agreement
including, but not limited to, documents, equipment, information
and data stored by any means;
"Date for Delivery" is the date fixed by reference to Schedule 1
by which the Contractor must make Delivery of the Goods and
Services;
"Defect" means a defect, error or malfunction in the Goods such
that the whole or part of the Goods does not comply with, and
cannot be used in accordance with, the Specification and the
warranty provided in clause 8 (Contractor’s warranties and
Intellectual Property);
"Delegate" means the person for the time being holding,
occupying or performing the duties of the office of [ ] of the
Department;
"Delivery" means the delivery of the Goods and Services as
described in clause 3.2 (Delivery to Delivery Point);
"Delivery Point" is the place for delivery of Goods and Services
set out in Schedule 1;
"Department" means the Tasmanian Government Department referred
to above;
"Fee Proposal" means a written proposal described in clause
22.3(b) (Change to scope of the Specification);
"Goods" means the goods described in Schedule 1;
"Insurance" means all policies of insurance required to be taken
out or entered into under clause 15 (Insurance);
"Intellectual Property" means all copyright, patents, registered
and unregistered trademarks, registered designs, trade secrets and
know-how and all other intellectual property rights resulting from
intellectual activity;
"Latent Defect" means a defect or deficiency in design,
materials or workmanship which could not have been discovered by
the Department:
0. using the acceptance tests specified in this Agreement; or0.
by reasonable inspection before the acceptance of the Goods,
and which has an adverse effect on the functionality,
performance or capability of the Goods, or any part of them, so as
to require rectification or modification;
“Legislative Requirements” means Acts, Ordinances, regulations,
by-laws, orders, awards and proclamations of the Commonwealth or
the State applicable to the supply of the Goods or Services;
“Moral Rights” means:
0. a right of attribution of authorship;0. a right not to have
authorship falsely attributed; or0. a right of integrity of
authorship;
granted to creators under the Copyright Act 1968 (Cwlth);
"Request for Tender" means the document inviting the Contractor
to offer to supply the Goods and Services to the Crown, a copy of
which, excluding only the Conditions of Contract, is annexed and
marked “Annexure A”;
"Scheme" means a scheme in force under the Professional
Standards Act 2005 (Tas) for limiting the occupational liability of
members of an occupational association;
"Services" means the services specified in Schedule 1 of this
Agreement;
"Specification" means the statement of the Department specifying
and describing the Goods and Services set out in Schedule 1;
"Specified Personnel" means the people described as “Specified
Personnel” in Schedule 2;
"Standards" means all international and Australian standards
applicable to the Goods and/or the Services;
"Tender" means:
0. the documents constituting an offer to supply the Goods and
Services to the Crown under the Request for Tender, a copy of which
is annexed and marked “Annexure B”; and 0. any supplemental
document of clarification or variation of the Tender agreed to in
writing by the parties;
"Term" means the term of this Agreement as fixed or extended
under clause 2;
"Variation Notice" means a notice referred to in clause 22.1
(Crown may give variation notice);
"Warranty Period" means the period stated in Schedule 1.
Interpretation
In this Agreement, unless the contrary intention is
expressed:
0. a reference to this Agreement includes its schedules,
appendices, annexures and attachments, and any variation or
replacement of any of it;(ah) a reference to a statute, ordinance,
code or other legislative instrument includes regulations and other
instruments under it and consolidations, amendments, re-enactments
or replacements of any of them;(ai) the singular includes the
plural and conversely;a reference to a gender includes reference to
each other gender;(aj) a reference to a person includes:(i) an
individual, a firm, a body corporate, an unincorporated association
or a statutory or responsible authority or other authority, as
constituted from time to time; and(ii) the person’s executors,
administrators, successors and permitted assigns; (ak) an
agreement, representation or warranty by, or for, two or more
persons binds, or is for their benefit, together and
separately;(al) a covenant forbidding a person from doing
something, also forbids that person from authorising or allowing
another person to do it;(am) a reference to anything (including an
amount) is a reference to all or any part of it, and a reference to
a group of persons is a reference to any one or more of them;(an) a
reference to a clause, paragraph, schedule, annexure or appendix,
is a reference to a clause, paragraph, schedule, annexure or
appendix in or to it;a reference to “writing” includes a reference
to printing, typing, lithography, photography and other methods of
representing or reproducing words, figures, diagrams and symbols in
a tangible and visible form;(ao) a reference to a day is to be
interpreted as the period of time starting at midnight and ending
twenty-four (24) hours later;(ap) a reference to a month or a year
means a calendar month or a calendar year respectively;(aq) words
or phrases derived from a defined word have a corresponding meaning
to the defined word;(ar) a term of inclusion is not to be
interpreted to be a term of limitation;(as) all references to
monetary sums are to Australian currency;(at) a reference to the
payment of money within a specified time, means the full crediting
and clearance of any cheque or electronic transfer into the payee’s
account within that time;(au) it operates under Tasmanian time;(av)
if the day on or by which an act, matter or thing is to be done
under it is not a Business Day, then that act, matter or thing must
be done no later than the next Business Day; (aw) an uncertainty or
ambiguity in the meaning of a provision is not to be interpreted
against a party only because that party prepared the provision;
and(ax) headings are included for convenience only, do not form
part of it, and are not to be used in its interpretation.Term of
AgreementTerm
The term of this Agreement is to commence (or has commenced ) on
the [ ] day of [ ] 20[ ] and will continue, unless
earlier terminated, until Delivery is complete and the Warranty
Period has expired.
Early commencement
If the supply of the Goods or Services has commenced before the
date of this Agreement, then the Term will be taken to have
commenced from the earlier date and all dealings between the
parties as from that earlier date relating to the supply of the
Goods or Services will be taken to have been carried out on the
terms of this Agreement.
Supply and delivery of the Goods and ServicesSupply of the Goods
and Services
The Contractor must:
0. supply only Goods which comply in all respects with:51. the
requirements of the Specification;(i) all Legislative Requirements;
and(ii) all Standards and0. complete the delivery of the
Services:52. with the due care and skill, and to a standard
reasonably to be expected of a person both competent and
experienced in providing services similar to the Services;52. in
accordance with all Legislative Requirements; and52. in accordance
with all Standards.
Delivery to Delivery Point
The Contractor must, at its own expense, deliver the Goods and
Services to the Delivery Point by the Date for Delivery, or such
other date as the Delegate agrees to in writing. Delivery is not
complete until it is acknowledged in writing by the Delegate.
Unloading of Goods
Delivery includes the unloading of the Goods and is the
responsibility of the Contractor.
Time for Delivery
Time is essential in relation to Delivery.
Notice of Delivery
If requested by the Delegate, the Contractor must give
reasonable notice of Delivery.
Legislative Requirements
The Contractor must comply with all Legislative Requirements
concerning Delivery.
Personal performance
The Services must be personally provided either by the Specified
Personnel or by another person or persons approved of in writing by
the Delegate.
Acceptance or rejection of Goods and ServicesAssessment of Goods
and Services
The Department may assess the Goods and Services to determine
whether they comply with the Specification and this Agreement. This
assessment may be by the means specified in Schedule 1 or by other
appropriate means, including selection of samples for testing and
analysis. If the Goods have been sold by sample, then the Goods
must reasonably conform with the sample. The Department may make
reasonable further assessment, at its own cost, but where the Goods
or Services fail those further assessments, the Contractor must pay
the cost of the assessments as incurred by the Department.
Conformance with Specification or sample
If the Goods and Services conform with the Specification or
sample, then the Department must promptly accept the Goods and
Services by written notice to the Contractor. If the Goods and
Services do not fully conform with the Specification or the sample,
then the Department may reject all or part of the Goods and
Services:
0. within the time after Delivery specified in Schedule 1; or0.
within 20 Business Days if no time is specified,
by written notice to the Contractor giving reasons for the
rejection. If the Department does not accept or reject the Goods
and Services within 20 Business Days of Delivery, then the Goods
and Services are taken to be accepted at the expiration of that
period.
Removal of rejected Goods
The Contractor, at its cost, must collect and remove all
rejected Goods from wherever they are held, as soon as practicable
or the Department may either:
0. return the Goods to the Contractor; or 0. store them,
at the Contractor’s expense.
Refund of payments for rejected Goods
If any money has been paid by the Crown to the Contractor for
Goods or Services which are subsequently rejected under this
Agreement (including Goods which have been accepted but which are
later found to have a Latent Defect), then the Crown will be
entitled to claim, by written notice, the immediate refund of that
money, which will be a debt due to the Crown. The Crown may also
recover that money by set-off against any other money it owes to
the Contractor.
Discovery of Latent Defect
Despite anything to the contrary in this Agreement, if the
Department discovers a Latent Defect in the Goods, then within 20
Business Days of discovering that defect, the Department may reject
the Goods by written notice to the Contractor giving reasons for
the rejection.
Ownership and riskOwnership
Ownership and property in the Goods, free of all legal and
equitable adverse interests, passes to the Crown upon
Acceptance.
Risk
Risk in the Goods and Contract Materials passes to the Crown
when Delivery is complete under clause 3.2 (Delivery to Delivery
Point).
Warranty periodRepair and replacement of defective Goods
Without limiting any other warranty implied by statute or
generally at law:
0. if a Defect appears in the Goods within the Warranty Period,
then the Contractor is responsible for its repair or replacement to
ensure the Goods fully comply with the Specification and the
warranty provided in clause 8 (Contractor’s warranties and
Intellectual Property); and0. if the Specification so provides,
then the Contractor must obtain the benefit of any manufacturer’s
warranty for the Crown.Enforcement of manufacturer’s warranty
The Contractor, at its own cost, will act as the agent of the
Crown to enforce any manufacturer’s warranty referred to in clause
6.1. The Contractor will carry out its agency responsibilities in a
timely manner.
Contract PriceContract Price
The Department must pay the Contract Price to the Contractor for
Goods and Services delivered and accepted by the Department under
this Agreement.
Periodical payments
If Schedule 2 provides that the Contractor is to be paid by any
sort of periodical payments, then the Crown is entitled to defer
any of those payments until the supply of the Goods and Services to
which the payment relates has been completed by the Contractor, to
the satisfaction of the Crown.
Time for payment
Unless this Agreement otherwise permits, the Crown must make
payment within 20 Business Days of submission to the Delegate of a
duly rendered invoice for all or part of the Contract Price:
0. in a form approved of by the Delegate; and 0. containing the
information required by the Delegate.Fee Variation
[Note to Drafters: Clause 7.4 should only be included if the
Contractor’s tender has been accepted on the basis that the
contract fee is variable]
The Contractor may vary the contract fee in accordance with the
formula described in Schedule 2. The varied fee takes effect as the
new contract fee on the date the Delegate receives written notice
of the variation.
Contractor’s warranties and Intellectual PropertyWarranties
The Contractor warrants that:
0. the Contractor has the right to sell and transfer title to
the Goods to the Crown;0. the Goods:(except as otherwise provided
in the Specification) are new when delivered to the Department;are
fit for the purpose stated in the Specification or elsewhere in the
Agreement, or if no purpose is stated, the purpose for which the
Goods would ordinarily be used;conform to the description, model
number and the sample (if any) provided by the Contractor;conform
with the requirements of this Agreement (including the
Specification);are free from defects (including defects in
installation);are of good merchantable quality and conform to all
legally applicable standards;where relevant, have been
manufactured, constructed or assembled in the factory disclosed by
the Contractor as the place of manufacture, construction or
assembly of the Goods; anddo not contain Asbestos.all
representations made by the Contractor in, or in connection with,
the Tender were, and remain, accurate;it has in place the quality
assurance arrangements set out in Schedule 1;it is entitled to use
any Intellectual Property which it uses in connection with Goods
supplied under this Agreement; andthe Department’s use of the Goods
will not breach any third party’s Intellectual Property or other
rights.Licence to use Intellectual Property
The Contractor grants to the Crown, for no additional charge, a
non-exclusive perpetual licence to use all Intellectual Property
rights in relation to the Goods supplied under this Agreement.
Contract MaterialTitle to, and property in, Contract
Material
The title to, and property (including all Intellectual Property)
in, all Contract Material vests in the Crown upon its creation, but
that material will remain readily available to the Contractor to
the extent necessary to enable the Contractor to perform its duties
under this Agreement.
Contractor must return Contract Material
On the expiration or earlier termination of this Agreement the
Contractor must immediately deliver all Contract Material in its
possession or control to the Delegate and if necessary, transfer
any Intellectual Property forming part of that material to the
Crown.
Use of Contract Material restricted
The Contractor must ensure that the Contract Material is used,
copied, supplied or reproduced only for the purposes of this
Agreement.
Pre-existing Intellectual Property rights
The Crown agrees that any pre-existing Intellectual Property
rights owned by the Contractor in material used to produce Contract
Material is not affected by this Agreement.
No third party rights in Contract Material
The Contractor warrants that the Crown’s use of the Contract
Material will not infringe the Intellectual Property or other
rights of any third party.
Moral Rights consent from Consultant
The Contractor unconditionally consents to any infringement of
its Moral Rights resulting from any use, by or on behalf of the
Crown, of the Contract Material described in Schedule 1 for the
purposes of:
0. the project described in Schedule 1; or0. any other project
undertaken by the Crown.Moral Rights consent from third party
authors
To the extent that any third party has Moral Rights, the
Contractor warrants that:
0. for pre-existing materials that form part of the Contract
Material described in Schedule 1, it has obtained; and0. for new
materials coming into existence for the purpose of this Agreement
and that form part of the Contract Material described in Schedule
1, it will obtain before or immediately on creation,
the third party’s unconditional consent to any use of those
Contract Materials by or on behalf of the Crown for the purposes
of:
the project described in Schedule 1; orany other project
undertaken by the Crown.Supply of documentary evidence
If the Delegate so requests, the Contractor must promptly
provide to the Crown all Moral Rights consents required by clause
9.7.
Crown MaterialCrown Material remains property of the Crown
Crown Material remains the property of the Crown and on the
expiration or earlier termination of this Agreement the Contractor
must immediately return all the Crown Material to the Delegate. The
cost of delivery must be paid by the Contractor.
Third party rights in Crown Material
The Delegate must inform the Contractor of any Crown Material in
which third parties hold Intellectual Property and any conditions
or limitations attaching to the use of that Crown Material as a
result of that Intellectual Property. The Contractor must use Crown
Material only under the conditions and limitations to which it is
subject.
Contractor must keep Crown Material safe
The Contractor is responsible for the safe keeping and
maintenance of Crown Material.
Repair and replacement workRepair and replacement work
During the Warranty Period the Contractor will undertake all
necessary repair, replacement or other work in respect of the
Goods, in a timely and workmanlike manner, to ensure that the Goods
conform to the standard described in clause 8.1 (Warranties). All
repair or replacement work carried out, or supplied by, the
Contractor:
0. is warranted by the Contractor to the same extent as the
Goods, from completion of that repair work or replacement; and0.
must be carried out at the expense of the Contractor.Continuing
liability for Latent Defects
The Contractor’s liability to carry out repairs and replacement
work under clause 11.1 extends beyond the Warranty Period and is a
continuing liability for Latent Defects.
Failure to repair or replace
If the Contractor does not comply with clause 11.1 or 11.2
within a reasonable time after receipt of notice to do so, then the
Department may have that work or replacement done at the cost of
the Contractor, which cost will be a debt due and owing to the
Crown.
Liaison and reporting
The Contractor must liaise with, and report to, the Delegate as
reasonably required by the Delegate during the Term.
Waiver of rights of recovery from the Crown
The Contractor waives all present and future rights to claim
against the Crown for:
0. personal injury to, or death of, the Contractor; or0. either
or both loss of, or damage to, any of the Contractor's property;
and0. financial loss to the Contractor;
arising from, or attributable to, the supply of the Goods or
Services. This waiver does not operate to release the Crown from
liability arising from, or attributable to, a wrongful (including
negligent) act or omission of the Crown.
IndemnitiesContractor indemnifies Crown
The Contractor indemnifies the Crown against all present and
future legal liability, claims or proceedings for:
0. personal injury to, or death of, a third party; or 0. either
or both loss of, or damage to, property of a third party;
andfinancial loss of a third party;
arising from, or attributable to, the supply or use of the Goods
or Services to the extent that the injury, death, damage or loss is
not caused by a wrongful (including negligent) act or omission of
the Crown.
Nature of indemnities
The indemnities in clause 14.1:
0. are continuing obligations of the Contractor, separate and
independent from any other obligations; and 0. survive the
termination of this Agreement.InsuranceContractor to insure
The Contractor must hold, and keep current throughout the Term
contracts of insurance with a reputable insurer lawfully carrying
on insurance business in Australia, indemnifying:
0. the Contractor’s liability for loss or damage to the Goods
which covers the Goods for their full value from time to time
against loss or damage, including loss or damage in transit and, if
the Agreement requires the Contractor to unload the Goods, also
unloading. The policy must be maintained to cover the Goods until
Delivery is complete;0. the Contractor’s liability for:personal
injury to, or death of, a third party; and either or both loss of,
or damage to, the property of a third party;
for at least $20,000,000 for each individual claim or series of
claims arising out of a single occurrence, or for such other sum as
the Delegate reasonably determines;
the Contractor’s liability for worker’s compensation; andthe
Crown’s liability for:personal injury to, or death of, a third
party; and either or both loss of, or damage to, the property of a
third party;
for a sum not less than that stated in Schedule 1, and arising
from the defective nature of the Goods and including loss or damage
suffered by third parties as a result of using the Goods; and
the Contractor’s liability for professional negligence, for at
least the sum stated in Schedule 1, for any one claim or series of
claims, arising out of a single occurrence, and for the term
described in clause 15.7 (Crown may insure).
The liability to be insured against under paragraphs (b) and (d)
is liability arising from, or attributable to, the Contractor
supplying the Goods and Services to the extent that the injury,
death, damage or loss is caused by a wrongful (including negligent)
act or omission of the Contractor or the Contractor’s employees or
agents.
Period of insurance
The Contractor must maintain the insurances for the following
periods:
0. the policy for loss or damage to Goods described in clause
15.1(a) must be maintained to cover the Goods until Delivery is
complete;the public risk cover described in clause 15.1(b) and
workers compensation insurance described in clause 15.1(c) must be
maintained for the Term;the product liability insurance described
in clause 15.1(d) must be maintained for at least six years from
the Crown’s Acceptance of the Goods.Crown to be noted as
principal
Insurance contracts required by clauses 15.1(b) and 15.1(d) must
name the Crown in the Right of Tasmania as a principal for the
purpose of indemnifying the Crown for any vicarious or other legal
liability (if any) it may have in respect of any injury, death,
damage or loss caused by a negligent act or omission of the
Contractor.
Contractor to notify Delegate
The Contractor must notify the Delegate in writing as soon as
practicable:
0. if an insurance contract referred to in clause 15.1 lapses,
is cancelled or is materially altered; orif the Contractor claims,
or becomes entitled to claim, under such an insurance contract for
something related to delivering the Contracted Services.Evidence of
insurance
The Contractor must give the Delegate evidence of:
0. the terms of; andpayment of the premium for;
each insurance contract taken out under clause 15.1,
before the Contractor starts to deliver the Goods and Services;
andbefore each due date for renewal of each such insurance
contract.Professional indemnity insurance
The Contractor must maintain the professional indemnity
insurance required under clause 15.1 for six years after this
Agreement expires or terminates, to provide indemnity against
claims:
0. based on anything done, omitted or that happened, while the
Goods and Services were being delivered; andmade during those six
years.
This clause 15.6 survives any termination of this Agreement.
Crown may insure
If the Contractor fails to hold or renew each insurance contract
required under clause 15.1, then without being obliged to do so,
the Crown may:
0. take out or renew an insurance contract that the Contractor
does not hold or has not renewed; and0. pay any unpaid premium.
The Contractor must pay to the Crown, on demand, all costs that
the Crown incurs to do that, and interest on those costs, at the
rate of ten per cent per year, from the date of outlay to the date
of payment.
Contractor not to prejudice insurances
The Contractor must not do anything that may result in insurance
under clause 15.1, or any part of it, becoming invalid or
unenforceable.
ConfidentialityParties may disclose contract provisions
Despite any confidentiality or Intellectual Property right
subsisting in this Agreement or a tender giving rise to it, either
party may publish, without reference to the other, all or any part
of this Agreement, except those parts identified in Schedule 3
(“Confidential Provisions”).
Limited confidentiality for Confidential Provisions0. The
accountable authority for the purposes of Treasurer's Instruction
TI C-1 issued under the Financial Management Act 2016 (Tas) (the
accountable authority) has determined that the Confidential
Provisions must remain confidential.The parties must maintain
confidentiality of the Confidential Provisions for the period
determined and approved by the accountable authority, so far as the
law allows, except to the extent that:(i) the Confidential
Provisions are available to the public generally, other than by
breach of this Agreement;(ii) a law requires a party to file,
record or register something that includes the Confidential
Provisions;(iii) disclosure is necessary or advisable to get a
consent, authorisation, approval or licence from a governmental or
public body or authority;(iv) it is necessary or advisable to
disclose the Confidential Provisions to a taxation or fiscal
authority; (v) it is necessary to disclose the Confidential
Provisions in answer to a question asked of a Minister in the
Parliament or otherwise to comply with a Minister’s obligations to
Parliament; (vi) the Confidential Provisions are disclosed
confidentially to a party’s professional advisers:(A) to get
professional advice about this Agreement; or(B) to enforce this
Agreement; or(vii) the parties agree otherwise in
writing.Contractor must not disclose other material
Subject to clause 16.1, the Contractor must not publicly
disclose, or use for a purpose other than this Agreement, any
information or material acquired or produced in connection with, or
by performing, this Agreement, including Crown Material or Contract
Material (“Confidential Material”), without the Delegate’s prior
written consent, except to the extent that:
0. the Confidential Material is available to the public
generally, other than by breach of this Agreement;a law requires
the Contractor to disclose, file, record or register something that
includes Confidential Material;disclosure is necessary or advisable
to get a consent, authorisation, approval or licence from a
governmental or public body or authority;it is necessary or
advisable to disclose the Confidential Material to a taxation or
fiscal authority; the Confidential Material is disclosed
confidentially to professional advisers:(i) to get professional
advice about this Agreement; or(ii) to enforce this Agreement;
orthe parties agree otherwise in writing.Employees to comply
The parties must ensure that their respective employees who have
access to the Confidential Provisions, Confidential Material, or
both, are aware of, and comply with, all confidentiality
obligations affecting it.
Privacy obligations preserved
Nothing in this clause derogates from a party’s obligations
under the Personal Information Protection Act 2004 (Tas) or the
Privacy Act 1988 (Cwlth).
Security and accessContractor to comply with security
regulations
When using any of the Crown’s premises or facilities, the
Contractor must comply with all security and office regulations in
effect at those premises or in regard to those facilities as
notified by the Crown or the Delegate.
Delegate may inspect
At all reasonable times, the Contractor must:
0. give to the Delegate, or to any persons authorised in writing
by the Crown, access to any premises where the manufacture of the
Goods is being undertaken, the Goods are being stored or the
performance of the Services is being carried out; andmust allow
those persons to inspect the manufacture, storage or performance of
the Goods and Services and any other material associated with the
Goods and Services.Right to inspect third party premises
If a third party is involved in the manufacture, storage or
conduct of the Goods and Services, then the Contractor must
reserve, in each relevant sub-contract entered into with the third
party, the right for the Crown to enter the premises of the third
party for the purposes of clause 17.2(a) and (b).
Negation of employment and agencyNo representation by
Contractor, sub-contractors etc
The Contractor:
0. must not represent itself; and must ensure that its
sub-contractors, employees and agents do not represent
themselves;
as being sub-contractors, employees or agents of the Crown or
the Department.
Contractor remains independent Contractor0. Despite the degree
of direction, control or supervision which the Crown directly or
indirectly exercises over the Contractor, or the Contractor’s
employees, agents or sub-contractors in the discharge of duties,
obligations, and covenants under this Agreement, the Contractor is
taken to be and remain an independent contractor. 0. The
Contractor’s sub-contractors, employees and agents are taken to be
and always to have been, and remain sub-contractors, employees or
agents of the Contractor.TerminationCrown may terminate without
cause
The Crown may terminate this Agreement without showing cause, by
giving the Contractor 10 Business Days written notice.
Crown may terminate for default0. The Crown may terminate this
Agreement by giving the Contractor a written notice (“Termination
Notice”) if, 10 Business Days after receipt of a written notice
(“Default Notice”) requiring the Contractor to do so, the
Contractor:has not remedied each default in the performance of its
obligations; or continues to be in breach of any of the provisions
of this Agreement;
identified in the Default Notice.
The Termination Notice will be effective immediately the
Contractor receives it and the Crown may then recover from the
Contractor any loss or damage suffered by the Crown because of the
Contractor’s default. The recovery may be effected by way of
set-off against any moneys owed by, or which become due from, the
Crown to the Contractor under this Agreement.Crown may terminate
for insolvency
The Crown may terminate this Agreement immediately, by written
notice, if any one of the following occurs:
0. if the Contractor is a corporation:an order is made, or a
resolution is passed, winding up the Contractor;a receiver, or a
receiver and manager is appointed over all or any part of the
Contractor’s assets;a provisional liquidator or an administrator is
appointed for the Contractor;a scheme of arrangement is submitted
for approval;the Contractor convenes a meeting or enters, or
proposes to enter, into any arrangements or composition with its
creditors;the Contractor becomes insolvent;the Contractor ceases,
or threatens to cease, to carry on its operations or to dispose of
all, or a substantial part, of its undertaking;a mortgagee of the
Contractor’s property takes possession of any of that property.if
the Contractor is an individual or a partnership:the Contractor
commits an act of bankruptcy;the Contractor enters into an
arrangement or composition with creditors;a receiver is appointed
for the assets of the partnership.2.1 Crown's right to terminate
agreement for supply of cleaning services1. This clause 19.4
applies if this Agreement involves the supply of cleaning services
by the Contractor to the Crown.1. The Crown may terminate this
Agreement by immediate notice, in writing, to that effect to the
Contractor if:(i) the Contractor contravenes any of sections of
357(1), 358 or 359 of the Fair Work Act 2009 (Cwlth);(ii) the
contravention occurred in relation to an individual who performed
any work for the supply of the Services; and(iii) in respect of
that contravention, the Contractor is ordered to pay a pecuniary
penalty under the Fair Work Act 2009 (Cwlth).Termination without
cause
If the Crown terminates this Agreement under clause 19.1, then
the Crown must pay the Contractor within a reasonable time:
1. for Goods and Services supplied and accepted, in accordance
with clause 4.2 (Conformance with Specification or sample) before
the effective date of termination; and(cq) if the Contractor is not
then in breach of this Agreement, a fair and just proportion of
other liabilities or expenses that the Contractor:has reasonably
and properly incurred to provide the Goods and Services; andcannot
otherwise recover or avoid.
The Crown is not liable to make any other payment for
terminating under clause 19.1.
Termination otherwise than for without cause
If the Crown terminates this Agreement under clause 19.2, clause
19.3, or clause 19.4 then it may:
1. elect to accept any Goods and Services supplied before the
termination, in which case the Crown is liable to make payment for
those Goods and Services at a pro rata rate but subject to a
correctly rendered invoice being submitted to the Crown by the
Contractor and the Crown is not liable to make any other payments
in relation to those Goods and Services; orelect to return all or
part of the Goods and Services already supplied, in which case the
Crown is not liable to make any payment for those Goods and
Services and if payment has been made, then the Crown is entitled
to a full refund of that money, which will be payable immediately
on written demand being made and will be a debt due to the
Crown.
All payments and refunds referred to in this clause are payable
immediately upon written demand being made and may be recovered by
set-off against any other money owed.
Contractor to reserve a right of termination in
sub-contracts
The Contractor must in each sub-contract or order placed with
any subcontractor for the purposes of this Agreement, reserve a
right of termination to take account of the Crown’s right of
termination under clause 19.1.
Reduction
Upon receipt of notice to terminate this Agreement, the
Contractor must:
1. stop work as specified by that notice; and1. take all
reasonable steps to minimise its loss resulting from the
termination and to protect the Goods, Crown Material and Contract
Material.Delay and extension of time
If it becomes evident to a party that anything, including an act
or omission of the Crown, may delay the Delivery of the Goods or
Services, then that party must promptly notify the other party in
writing, with details of the possible delay and the cause. If the
cause of the delay is an act or omission of the Crown, then the
Crown must pay the Contractor the extra costs necessarily incurred
by the Contractor because of the delay. Nothing in this clause:
1. obliges the Crown to pay extra costs for delay or disruption
which have already been included in the value of a payment under
this Agreement; or1. limits the Crown’s liability for damages for
breach of contract.Variations changing the scope of the
SpecificationCrown may give variation notice
The Crown may direct a variation to the Specification by giving
a written notice to the Contractor (“Variation Notice”).
Contractor may refuse
The Contractor is not obliged to comply with a Variation Notice
if the Contractor gives a written notice to the Delegate, under
clause 22.3, within five Business Days of receipt of the Variation
Notice.
Change to scope of the Specification
If the Crown issues a Variation Notice which the Contractor
considers would change the general scope of the Specification, then
the Contractor may so advise the Delegate in writing within five
Business Days, stating:
1. whether or not the Contractor agrees to comply with the
Variation Notice; and 1. if the Contractor agrees to comply with
the Variation Notice, a fee proposal (“Fee Proposal”) for carrying
out the direction.
Each time the Crown accepts a Fee Proposal, the Contractor must
act upon the variation under the Fee Proposal.
If no agreement, parties in dispute
If the Crown either:
1. does not agree, within five Business Days of receipt of the
Contractor’s notice given under clause 22.3, that the Variation
Notice changes the general scope of the Specification; or 1. does
not accept the Fee Proposal;
then the parties will be taken to be in dispute and clause 26
(Resolution of disputes) applies, if the Crown directs the
Contractor to proceed with the variation.
Fee for variation
The Contract Price must be varied to cover the value of a
variation to the Specification. Unless otherwise agreed, the value
of a variation to the Specification must be determined using the
basis on which the Contract Price and fees described in clause 7
(Contract Price) are determined, or if that is not possible, then
reasonable rates and prices will apply.
Variation caused by Legislative Requirement
If a new Legislative Requirement or a change in a Legislative
Requirement after the date of this Agreement, necessitates:
1. a change to the Specification;1. has effect after the date of
this Agreement; and1. could not reasonably have been anticipated at
that date,
then the extent to which the Specification is changed by that
Legislative Requirement is taken to be a variation to the
Specification under this clause 22.
Frustration and circumstances beyond controlFrustration of
Agreement
If this Agreement is frustrated, then the Crown must pay the
Contractor for Goods and Services which have been accepted under
clause 4.2 (Conformance with Specification or sample) up to the
date of frustration - the amount not then paid, but which would
then have been payable if the Agreement had not been frustrated
Circumstances beyond control
A party is excused from performing its obligations to the extent
it is prevented by circumstances beyond its reasonable control
(except the lack of funds for any reason), such as acts of God,
natural disasters, acts of war, riots and strikes outside the
party’s organisation. If these circumstances arise, the affected
party will give notice of them to the other as soon as possible,
identifying the effect they will have on its performance, and must
make all reasonable efforts to minimise the effects. If
non-performance or diminished performance by the affected party
continues for a period which the other party regards as
commercially unreasonable, the other party may terminate this
Agreement. If this Agreement is terminated in these circumstances,
each party will bear its own costs and neither party will incur
further liability to the other.
Waiver and variation1. No failure by a party to exercise, nor
delay in exercising, a right, power or remedy operates as a waiver.
1. A single or partial exercise of a right, power or remedy does
not preclude any other, or further, exercise of that, or any other
right, power or remedy. 1. A waiver is neither valid nor binding on
the party granting it, unless made in writing signed by the party
to be bound by the waiver.Governing lawLaws of Tasmania
This Agreement is governed by the law of Tasmania and the
parties submit to the jurisdiction of the Courts of Tasmania.
Proceedings issued under or about this Agreement
Any proceeding issued against the Crown under, or about, this
Agreement, must be institut