purchase and sale of goods and services cook islands...

Purchase and Sale of Goods and Services

Cook Islands Government Policy

This policy was approved on 2 December 2014

TABLE OF CONTENTS

1. AUTHORITY ............................................................................................................................... 6

2. APPLICATION ............................................................................................................................ 6

3. PURPOSE ..................................................................................................................................... 6

4. MANDATORY LIMITS FOR ALL SALES AND PURCHASES ................................................ 6

5. AUTHORITY LEVELS ................................................................................................................ 6

6. EXPRESSIONS OF INTEREST .................................................................................................. 7

7. VARIATIONS TO EXISTING CONTRACTS ........................................................................... 7

8. QUOTATIONS ............................................................................................................................ 8

PURCHASES .......................................................................................................................................... 9

9. FUNDING .................................................................................................................................... 9

10. CONFLICTS OF INTEREST ...................................................................................................... 9

11. DEVIATIONS FROM THIS POLICY ......................................................................................... 9

12. RECORDING ............................................................................................................................... 9

13. CONFIDENTIALITY ................................................................................................................... 9

14. DOCUMENTATION ................................................................................................................. 10

OPEN TENDERING ............................................................................................................................ 11

15. DOCUMENTATION ................................................................................................................. 11

16. TENDER STEPS ........................................................................................................................ 11

17. STEP ONE - APPROPRIATION DETAILS ............................................................................. 11

18. STEP TWO - DELEGATED AUTHORITY ............................................................................. 11

19. STEP THREE - TENDER TEAM AND EVALUATION TEAM .............................................. 12 Tender Team............................................................................................................................................................... 12 Evaluation Team ......................................................................................................................................................... 12

20. STEP FOUR - SPECIFICATIONS ............................................................................................ 12

21. STEP 5 – TENDER DOCUMENTATION ................................................................................ 13 Mandatory Requirements for Tenders ................................................................................................................. 13 Contract ....................................................................................................................................................................... 13 Prices ............................................................................................................................................................................. 13 Further Particulars ..................................................................................................................................................... 14 Evaluation Criteria ..................................................................................................................................................... 14

22. STEP 6 - TENDER COMMITTEE SIGN OFF PRIOR TO ADVERTISING ........................... 15

23. STEP 7 - ADVERTISING TENDER .......................................................................................... 15 Requirements .............................................................................................................................................................. 15

24. STEP 8 - OPENING OF TENDER PROPOSALS .................................................................... 16

25. STEP 9 - EVALUATION OF TENDERS .................................................................................. 17 Short Listing ................................................................................................................................................................. 17 Evaluation Process ..................................................................................................................................................... 17

26. STEP – 10 - TENDER COMMITTEE ........................................................................................ 18

27. STEP 11- AWARDING OF THE CONTRACT ....................................................................... 19

CLOSED TENDER ............................................................................................................................... 21

28. TENDER STEPS ........................................................................................................................ 21

29. TENDER COMMITTEE CONSENT ........................................................................................ 21

SALE OF ASSETS ................................................................................................................................ 23

30. RECORDING ............................................................................................................................. 23

31. CONFIDENTIALITY ................................................................................................................. 23

32. CONFLICTS OF INTEREST .................................................................................................... 23

33. SALE STEPS .............................................................................................................................. 23

34. STEP 1-DELEGATED AUTHORITY ....................................................................................... 23

35. STEP 2 - PREPARE ASSET FOR SALE ................................................................................... 24

36. STEP 3 –VALUATION .............................................................................................................. 24

37. STEP 4 – RESERVE PRICE ........................................................................................................ 24

38. STEP 5 - ADVERTISING ........................................................................................................... 24

39. STEP 6 - OPENING OF TENDER PROPOSALS .................................................................... 24

40. STEP 7 – AWARD OF SALE .................................................................................................... 25

PROCUREMENT COMPLAINTS PROCESS .................................................................................... 26

41. PURPOSE ................................................................................................................................... 26

42. MANDATORY REQUIREMENTS ............................................................................................ 26

43. COMPLAINTS PROCESS......................................................................................................... 26 Lodging your complaint with the Agency ............................................................................................................ 26 Lodging a complaint with the Tender Committee ............................................................................................ 27 Lodging a complaint with the Office of the Ombudsman ................................................................................ 27

APPENDIX 1: PUBLIC TENDERING COMPLAINTS FORM ......................................................... 28

APPENDIX 2: COMPLAINTS REGISTER ......................................................................................... 30

SCHEDULE ONE: MANDATORY TENDER REQUIREMENTS FOR PURCHASES ................... 31

SCHEDULE TWO: SECRETARIAT INTERNAL CHECKLIST FOR PURCHASES ..................... 33

SCHEDULE THREE: TEMPLATE AGREEMENTS AND GUIDES................................................. 37

ATTACHMENT ONE: TEMPLATE REQUEST FOR TENDERS ................................................... 38

ATTACHMENT TWO: TEMPLATE EVALUATION REPORT ..................................................... 56

ATTACHMENT THREE: CONTRACT FOR SUPPLY OF PRODUCTS AND SERVICES .......... 60

ATTACHMENT FOUR: CONTRACT FOR THE SUPPLY OF PRODUCT .................................. 65

ATTACHMENT FIVE: CONTRACT FOR THE ENGAGEMENT OF A CONSULTANT ........... 72


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1. AUTHORITY

1.1 The policy is made pursuant to section 63 of the Ministry of Finance and Economic

Management Act 1995-96 which empowers MFEM to issue instructions to ministries and line

agencies to ensure compliance with financial disciplines.

2. APPLICATION

2.1 This policy applies to all Ministries, Island Administrations, and Crown Funded Agencies. For

the avoidance of doubt this includes the Airport Authority, Ports Authority and Te Aponga

Uira o Tumu-Te-Varovaro. Throughout this policy, all are referred to as “agencies”.

3. PURPOSE

3.1 This policy is designed to ensure that the Crown conducts all sales and purchasing activity in

a uniform manner which is open, transparent and obtains value for money for the Crown.

4. MANDATORY LIMITS FOR ALL SALES AND PURCHASES

The following sets out the monetary limits with regards to all sales and purchases.

Transaction Type Estimate Cost / Sale

price

Specific Process

Purchases Over $30,000 Tender

$1,000 - $29,999 Quotations

Asset Sales All Vehicles

Other Assets over $500

Tender

Under $500 Advertise within entity

on a first-come first-

served basis.

5. AUTHORITY LEVELS

4.1 This table sets out who may authorise spending for a particular purspose.

Transaction Type Estimate Cost / Sale

price Specific Process

Purchases Up to $3,000 Head of Agency

Over $3,000 Cabinet

Purchase of allocated

Capital Below $30,000 Head of Agency

Over $30,000 Head of Agency and

Tender Committee


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Transfer of Agency’s

operating appropriations Appropriated

operating funding Head of Agency

Transfer of Agency’s

Capital appropriations All appropriated capital Financial Secretary with

Concurrence of Minister

Sale of Assets All Sales Head of Agency and

Tender Committee

5.2 Head of Agency’s that do wish to delegate authority for procurement activities are to clearly

document the such delegation in writing and must be attached to all payment vouchers.

6. EXPRESSIONS OF INTEREST

6.1 Expressions of interest (EOI) may be sought prior to completing a full tender process. The

purpose of an EOI is to explore market availability. The tender specifications documents may

have to be revisited to include any changes resulting from this. Any proposed tenderers who

submit an EOI must be provided the opportunity to tender.

7. VARIATIONS TO EXISTING CONTRACTS

7.1 Where a contract which was entered into as a result of a tender process requires variation

which would have the effect of increasing the agency spend by more than 15% of the total

spend under the contract or more than $30,000 (whichever is the lesser), the proposed

variation must be approved by the tender committee.

7.2 Where a contract entered into as a result of a quotation process requires variation and the

effect of that variation would be to exceed $30,000 in total payments made under the

contract, the proposed variation must be approved by the tender committee.


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8. QUOTATIONS

8.1 At least 3 quotes should be obtained, unless circumstances dictate that fewer quotes are

obtainable. Quotations should only be obtained from those genuinely interested in supplying

the goods or service. Where it is not possible to obtain 3 quotes, an indication of the

appropriate price for the product or service should be obtained from New Zealand (or other

relevant suppliers) in order to ensure that the quotation provided represents a fair price fro

the good or service.

8.2 Ensure the same instructions/specifications are supplied to all parties furnishing quotations.

Ensure that the detail of the quotes is sufficient to be able to make valid comparisons e.g. if

freight is included, make sure included as a separate line in all quotes.

8.3 The following is list of issues to consider when obtaining a quote. This list is indicative only

as each situation is different.

(a) Full description of the purchase/sale item including, where relevant, size, weight.

(b) Gross Amount.

(c) Tax Amount.

(d) Delivery date and availability.

(e) If second hand, condition.

(f) Warranty conditions.

(g) Maintenance.

(h) Levies.

(i) Freight.

(j) Payment requirements – discounts, payment terms and dates.

.


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PURCHASES

9. FUNDING

9.1 All purchasing must be made from the net total in the relevant Appropriation Act. It is not

permissible to top up a capital purchase with operating funds.

10. CONFLICTS OF INTEREST

10.1 Members of Parliament, Ministers and all employees must declare interests in any business

entity that is seeking public funds by way of tender bid or otherwise.

10.2 Where a conflict of interest arises, or could be seen to arise, the individual affected should

remove themselves from the tender situation and declare, in writing, to the Head of Agency

any actual or possible conflicts of interest. In the case of the Head of Agency, declaration

should be made to the Public Service Commissioner. Details of all conflicts must also be

reported to the tender committee.

10.3 Where a tender is issued by MFEM, the Solicitor-General (or a nominee of the Committee)

will chair the Committee whereby the Solicitor-General will provide his/her final

recommendation to the tender secretariat. At no time during the analysis process by the

tender committee will the Financial Secretary make any recommendations on MFEM tenders.

11. DEVIATIONS FROM THIS POLICY

11.1 If an agency intends to deviate from the requirements of this policy the agency must write to

the tender committee to obtain approval. A waiver of the requirements of this policy will

only be considered in the following circumstances:

(a) where there is an urgent need to proceed with a project in order to protect life or

property; or

(b) where there is an urgent need for the project to be carried out due to unforeseen

events; or

(c) where no tenders have been received for a particular project; or

(d) Market restriction on trademark goods for example local distributor is the only

supplier of a particular brand that is specifically required by the project and the

tender committee is satisfied of the case.

11.2 A lack of forward planning by agencies is not an acceptable reason for urgency nor will it be

considered an ‘exceptional circumstance’ for a particular tender project.

11.3 If no written approval is provided by the Tender Committee, funding will not be authorised

for release.

12. RECORDING

12.1 Details and all related documentation for the process of the tender must be labelled and filed

clearly, and made available for inspection, review and audit. All tender outcomes will be

published.

12.2 All related documentation for the process of the tender will be made available to the Office

of the Ombudsman for investigation purposes if requested. All tender processes are subject

to review by the Audit Office under the provisions of the Public Expenditure Review

Committee Act.

13. CONFIDENTIALITY


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13.1 Employees of agencies should not, except so far as may be necessary for the proper

performance of the employee's duties, as authorised by the Head of Agency or as may be

required by law:

(a) Disclose to any person any official information that has come to the knowledge of

the employee in the course of the tender process;

(b) Use or attempt to use any such official information for personal benefit, or the

benefit of any other person or organisation, or in any manner whatsoever other than

in accordance with the duties, and consistent with the obligation, of honesty

expected of a person holding a position with the Crown.

13.2 Any member of the tender team or evaluation team that is not a public servant, must agree

to the above conditions by signing an agreement with the agency.

13.3 The evaluation process and relative documents are confidential. It is at the discretion of the

Head of Agency whether to disclose the evaluation process to the tenderers. If it appears to

the Head of Agency that he/she may be asked to exercise that discretion the tender

secretariat should clearly state the evaluation process may be disclosed to tenderers.

13.4 The agency responsible for the tender should not disclosure any information pertaining to the

tender process to any person(s) or parties external to the tender process unless legally

required to.

14. DOCUMENTATION

14.1 In order to assist in the preparation of a tender template documentation has been prepared.

These documents are:

(a) Template Request for Tenders;

(b) Contract for Supply of Products and Services;

(c) Contract for the Supply of Products;

(d) Contract for the Engagement of a Consultant;

(e) Template Evaluation Report;

(f) Statement of Confidentiality and Conflict of Interest;

(g) Tender Management Plan;

(h) Complaints register;

(i) Annual Procurement Plan Templates (Microsoft Project).


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OPEN TENDERING

A tender is an invitation to the market to provide offers for the provisions of goods and or services. These

offers will be assessed and where appropriate, the Crown will enter into a contract with the sucessful tenderer.

15. DOCUMENTATION

15.1 As noted in the introduction, template documentation is available for the preparation of

tenders and must be used. If there is a compelling reason why this documentation is not

appropriate for the tender you are preparing please speak with Crown Law to obtain suitable

documentation.

16. TENDER STEPS

16.1 The following are the step which should be undertaken when conducting a tender. Each of

these steps is discussed in detail below.

Step 1: Ensure you have an appropriation.

Step 2: Ensure you have delegated authority to conduct the tender.

Step 3: Establish a tender team to manage the tender process and an evaluation team to

evaluate tenders.

Step 4: Prepare design and specifications.

Step 5: Prepare tender documentation and contract.

Step 6: Forward proposed documentation to the tender secretariat for sign off.

Step 7: Advertise tender.

Step 8: Open tender box and ensure tenders comply with the mandatory requirements.

Step 9: Evaluate tenders.

Step 10: Forward proposed award decision to tender committee for sign off.

Step 11: Proceed to award.

17. STEP ONE - APPROPRIATION DETAILS

17.1 Prior to any tendering process taking place, the Head of Agency must ensure funding is

available to carry out the completion of the contract.

18. STEP TWO - DELEGATED AUTHORITY

18.1 Prior to issuing any tender process all staff should ensure that they have the appropriate

delegated authority in order to do so and also that they act within the limits of that authority.

18.2 The Head of Agency must delegate the appropriate authority in writing to Heads of

Department, Finance & Purchasing personnel and/or any other relevant personnel. When

delegating authority to purchase goods and services to people not employed by the

organisation concerned it must be subject to the procedures issued particularly as they relate

to obtaining quotations and tendering.

18.3 Members of Parliament or Island Councils may not be delegated authority to purchase goods

or services. This does not mean that they cannot be consulted or offer advice. It just means

that they cannot act as agents.


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18.4 Any payments to the Head of Agency must be countersigned by the Senior Finance Officer

and where possible another manager. A copy of this approved invoice must be kept on a

separate file and be made available to Audit.

18.5 Documentation of the level of authority delegated should include the following information:

(a) The type of transaction authorised, e.g. operating expenditure or capital expenditure;

(b) The level of expenditure authorised; and

(c) The area of the organisation, or the appropriation, to which the authority extends

e.g. Management Accounting Division of MFEM only.

19. STEP THREE - TENDER TEAM AND EVALUATION TEAM

Tender Team

19.1 A tender team must be established to develop, document and manage the tender process.

The team shall consist of 3-5 members with appropriate expertise, from within the agency or

externally, e.g. engineer, technical assistants, financial advisers and/or any other relevant

personnel.

19.2 The team members may change at times during the process but it is recommended that a

core membership be maintained throughout the whole process for continuity and

consistency. For any project of complexity or length it is important that a person with

experience in project management be included to advise on project logistics.

19.3 Each team member must declare any conflict of interests which may, or may be seen as

affecting his or her involvement with the tender.

19.4 One member of the team will be appointed as Chair and delegated the responsibility for

ensuring procedural integrity and compliance with all the required procedures throughout

the process. One member of the team will be delegated the responsibility of recording all

information and activity relating to the process.

Evaluation Team

19.5 The evaluation team should consist of members with the appropriate expertise to undertake

a fair and detailed scrutiny of the tender proposals and to ensure well informed and

professional decisions are made.

19.6 There must be a minimum of 3 members for any evaluation team. Additional members may

be asked to participate on the team purely for advisory purposes, but without the authority

to evaluate proposals.

19.7 One of the members must be delegated the responsibility to ensure procedural integrity i.e. a

chairperson who will control and document the evaluations and report the recommendations

to the tender team.

19.8 If any Member of Parliament, including Ministers, are involved in the tender bid or quote, this

must be noted by the evaluation team and brought to the attention of the tender committee

in their report. Extra care should be taken to ensure the process is transparent, without bias

and will withstand public scrutiny.

20. STEP FOUR - SPECIFICATIONS

20.1 The specifications are a clear statement identifying what the agency wishes to purchase and

consequently outlines what is required from the supplier. For instance:


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(a) Freight and transport.

(b) Installation or construction requirements.

(c) Time frame for expected completion.

(d) Detailed design/plan (for civil works construction projects), drawings or photographs

(for motor vehicles, machinery and equipment).

(e) Quantity listing materials, e.g. cubic metres of cement, number of nails or timber.

(f) Quality standards e.g. grade or mix of cement required, hurricane or standard nails,

type of timber etc.

20.2 The specifications should be prepared by an appropriately qualified person and should be

peer reviewed by another suitably qualified professional. In addition the grammar, formatting

and punctuation should be reviewed by a suitably qualified person.

21. STEP 5 – TENDER DOCUMENTATION

21.1 The tender documentation must clearly set out the process which will be followed in

conducting the tender. It is essential that this is clear and complies with the requirements of

this manual in order to avoid litigation risk for the Crown. The tender must contain the

mandatory terms discussed below, the proposed form of contract, the specifications of the

goods or services which the tenderer is to provide, pricing details and any further

information that may be relevant to the assessment, i.e. previous experience as well as how

tenders will be evaluated.

Mandatory Requirements for Tenders

21.2 Schedule One contains mandatory tender terms which must be contained in any tender

documentation. These mandatory elements are contained in the template documentation

which you should use to prepare a tender.

Contract

21.3 Template contracts which can be attached to tenders have been prepared and should be used

where appropriate. If you do not feel any of these agreements meet your requirements

please advise Crown Law who will assist. The tender assessment criteria should include

provision for the tenderer to accept the contract terms or to propose amendments to the

same.

Prices

21.4 A standard form should be drawn up to include columns for:

(a) Item description;

(b) Item cost (VAT Excl.), quantity;

(c) VAT component;

(d) Total (VAT Incl.); and

(e) Discount.

21.5 Other columns may be added to allow for a range of prices for a particular item but for a

different brand.


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21.6 All tenders must clearly show the VAT exclusive quotes in a separate column to that of VAT,

since the Crown appropriation is VAT exclusive. All values must be shown in New Zealand

Dollar (NZD) currency.

Further Particulars

21.7 These are proforma questions on aspects of technical and commercial performance.

Examples include: history/background of tenderer, similar projects or successful contracts

completed, quality of services or materials. The schedule should be as long as necessary to

gather all the relevant information on functionality/performance, commercial considerations,

and technical aspects of the tenderer’s proposal, in order to assist the agency in ensuring that

the right decision is made when choosing the successful tenderer.

Evaluation Criteria

21.8 Tenders must be evaluated using the weighted scoring method. This method requires the

assessment and grading of indentified factors resulting in a score, usually out of 100 or 1000.

21.9 Evaluation criteria should be determined when tender documents are being prepared and

included in the tender documentation. This will ensure that tenderers provide the correct

information. Value for money must be integrated into the evaluation criteria otherwise you

are free to set whatever criteria you believe will get the best result.

21.10 If a request for tender is able to be carried out by a locally established company or if the

request for tender has the ability to use local labour/resources, part of the evaluation criteria

should include a weighted scoring for locally established companies.

21.11 The format of the evaluation criteria should be set out in a way that will allow each evaluation

team member to allocate points to a tenderer for each category they are assessed upon.

21.12 An example of how the Weighted Scoring Method might operate in respect of the purchase

of a vehicle follows:

The following are criteria that are mandatory and desirable in the acquisition of a vehicle:

Mandatory Desirable

Model to be no older than year 1998

Diesel engine

Carry capacity 7 Tonne

Maintenance capability (have own mechanic and

parts availability)

New Vehicle

If second-hand, then low mileage

Suits the purpose intended – see cost benefit

analysis (justification)

Product offered from Domestic Suppliers (on the

island)

Repair Requirements

21.13 Mandatory criteria are not ‘weighted’ because if areas of the tender proposal do not comply,

then there is no further evaluation e.g. as above, if there was no mechanical assistance from

the supplier then the proposal would automatically be rejected.

21.14 Next prioritise the criteria in order of importance. Assign the relative weighting to each.

Criterion Weighting

Suitability to Purpose of Purchase 30%

Age of Vehicle 25%


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Mileage 20%

Repair Requirements 15%

Local Supplier 5%

Acceptance of Contract Terms 5%

Total Weighted Scores (WS) 100%

21.15 Where a contract has been provided with the tender documentation, the tenderer’s

acceptance of the terms of that contract must be an assessment criteria.

22. STEP 6 - TENDER COMMITTEE SIGN OFF PRIOR TO ADVERTISING

22.1 All tender documentation should be forwarded to the tender secretariat with sufficient time

to allow the same to complete a review of the documentation. If you have followed the

requirements in this manual and used the template documents this review will occur quickly,

however where these templates have not been used, the review time will be more lengthy.

Please note that you should have completed all internal checks prior to submission to the

tender secretariat. You should be happy to submit the document to the market at this point.

The tender secretariat is not a proof reader.

22.2 The tender secretariat will complete a review to ensure compliance with this tender policy.

As part of this review the tender secretariat will prepare, complete and endorse an internal

checklist (Schedule 2) to be returned to the agency upon the completion of the review.

23. STEP 7 - ADVERTISING TENDER

Requirements

23.1 The advertisement must include: the name of the agency requesting the tender, the contact

person and details (telephone/email) for enquiries, a brief description of the goods or service

required, details of where tender specification documents can be obtained and closing date

and time of the lodgement of tender proposals.

23.2 All tenders must be advertised for a minimum of 10 working days. This will provide a

reasonable period of time for potential tenderers both here, outer islands and overseas to

submit proposals.

23.3 The request for tender should be advertised in the local newspaper(s), appearing a minimum

of 5 times in total by way of at least 3 different sources of public media services e.g. local

newspapers, local television, Ministry notice boards, website or distribution of flyers etc.

Consideration for outer islands and overseas recipients should be taken into account and the

appropriate media service should be chosen to cater for their needs.

Sample Tender advertisement:

TENDER NOTICE

Ministry of [Name]

[Tender name]

Tenders are requested for the supply of


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[details]. Specifications can be uplifted from the

[Ministry office] or contact Name on ph 99999,

fax 88888 or to email: [email protected]

Send tender to Tender Name, PO Box #,

Rarotonga, Cook Islands. Tenders close on the

Date at time.

23.4 If at any time during the advertising of the tender, the tender team varies any aspect of the

tender specifications or the timeframe for submissions, this must be communicated to ALL

tenderers and those who have obtained tender documents but not yet lodged their proposal.

This can be done using their contact details obtained at the time the tender documents were

uplifted. If a tenderer has already submitted a tender, they must be allowed to resubmit the

tender for the variation to the specifications.

23.5 A tender log form for interested parties must be prepared to register all parties that collect

or request copies of the tender specifications documents. This form must note the date

taken, name of interested party, and contact details should there be a need to contact the

party in the event of any amendments to the tender process.

23.6 A tender log form for receiving tender proposals should be prepared to register all parties

that deliver or have sent in their tender proposal documents. This form should note the date

and time received, whether by post or in person, name of interested party, and contact

details should there be a need to contact the party in the event of any amendments to the

tender process.

23.7 Negotiations must not take place between the tender team and the prospective suppliers

during the advertising stage.

23.8 Any queries for clarification must be responded to in writing. The agency must make the

same information available to all tenderers or potential tenderers by circulating the written

response to those that have registered for information packages and attached to the

information packages for those that have not yet collected the information packages.

23.9 A tender box, clearly marked “Tenders” with a slot and locked casing should be prepared for

the purpose of the placement of tender proposals.

24. STEP 8 - OPENING OF TENDER PROPOSALS

24.1 The tender box should be opened as soon as possible after the closing date but in any event

no more than two (2) working days after the closing date.

24.2 The tender box should be opened in the presence of relevant members of the tender team

and any two members of the public that have no conflict of interest. You must include as

witnesses an Auditor and any of the following members of the public: Police Officer, member

of the clergy, Ministry of Finance & Economic Management finance officer, tender secretariat

or a Justice of the Peace.

24.3 If an auditor cannot be physically present to open tenders, they will need to appoint someone

on their behalf to witness the opening of tenders. This is in exceptional circumstances only.

24.4 The tender log form for receiving tenders should be used to verify what is declared from the

opening of the tender box. The two witness members should read out the names of the

tenderer, after opening the proposal envelope and the tender team member present should

signify on the log form that the tender proposal for that particular tenderer was indeed

received and registered as a potential tenderer.

24.5 The tender team will be required to immediately screen the proposals to ensure that

tenderers have conformed to the mandatory tender criteria. Any offer that does not meet

mailto:[email protected]


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the terms specified in the standard terms of tender is non-conforming. Regardless of how

attractive the proposal is it should be removed from the remaining evaluation process.

24.6 A letter must be sent out immediately to non-conforming tenderers, informing them of the

failure of their tender proposal to conform to the mandatory criteria. The letter will advise

the tenderer that their proposal will not be considered in the tender process. The letter

must be sent out before the evaluation process begins, to allow the tenderer the option to

argue your decision should they feel that they did conform to the applicable criteria.

24.7 If all tenders received are non-conforming a new process must be commended. It may be

wise to review the tender specifications to ensure it is possible for potential tenderers to

comply with your requirements.

25. STEP 9 - EVALUATION OF TENDERS

Short Listing

25.1 Short-listing may be required for more complex purchases or where a large number of

tender proposals are received. If the need to short-list eventuates, the process as outlined in

the tender documentation must be followed to ensure a fair and just selection of short-listed

tenderers has been conducted.

Evaluation Process

25.2 A date, time and venue should be decided upon for the evaluation team to meet and evaluate

the tender proposals. The evaluation of tenders must be conducted no less than 5 working

days after the opening of the tenders.

25.3 The tender documents must be made available to the evaluation team members not less than

24 hours prior to the evaluation process. This allows the members the opportunity to

familiarise themselves with the expected process. A set of these documents must also be

made available during the evaluation.

25.4 The evaluation process is a very sensitive procedure and must be conducted in strict

confidence with minimal interruptions in preferably a secluded location.

25.5 Limited access to any tender proposals must be applied at all times and therefore a member

of the tender team must witness any copies being made for the team members. The original

tender proposal must be made available during evaluation for cross-reference or verification

purposes.

25.6 Tender proposals (or copies) should only be handed out to the members of the evaluation

team at the time that the team sits for evaluating each tender and no earlier.

25.7 A member of the tender team should officially introduce the members to the process and

hand out the necessary documentation required for the purpose of evaluating the tenders.

The members must be reminded of their obligations and informed on how the evaluation will

commence.

25.8 The members of the evaluation team have the right to request further information or

clarification on any areas, whether relating to the tender proposals or relating to the

evaluation. The tender team should be available to provide clarifications sought.

25.9 The members of the evaluation team may discuss openly any aspects throughout the process.

25.10 At the completion of the evaluation for each tender, the chair of the evaluation team shall

collect all documents from each member and make note of any recommendations. For any

areas relating to any of the tender proposals or the tender specifications documents that

require further clarification, the tender team must ensure that the information is reported


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back to the chair of the evaluation team, no later than two (2) working days from the date of

the evaluation sitting. If the issues are more complex, then the tender team may recall the

members of the evaluation team to discuss these matters further.

25.11 An assessment report, endorsed by each member of the evaluation team must be completed

and submitted with recommendations, for the attention of the respective head of the agency

no later than five (5) working days from the date of the evaluation sitting. The report will

identify the recommended successful tenderer.

25.12 The tender that is the lowest (for purchases) may not always be the preferred tender but a

comprehensive justification for why they are not preferred must be documented in the

assessment report.

25.13 The head of the agency is responsible for completing the tender report for submission to the

tender committee. This report must also attach the endorsed assessment report submitted

by the evaluation team. A template report is available to assist you to complete this process.

25.14 The evaluation of tenders should be conducted by applying only the evaluation criteria

notified to the tenderers in the terms of tender. Under no circumstances should the

evaluation criteria be amended from those provided to the tenderers outlined in the terms of

tender.

25.15 The tender team must assign a score to each tender in respect of each of the elements in the

evaluation criteria for example:

Criterion Wgt Tender 1 Tender 2 Tender 3

Score W.S Score W.S Score W.S

Suitability to Purpose of Purchase 30% 3 90 1 30 5 150

Age of Vehicle 25% 2 50 2 50 4 100

Mileage 20% 3 60 4 80 2 40

Repair Requirements 15% 4 60 3 45 1 15

Local Supplier 10% 5 50 4 40 2 20

Total Weighted Scores 100% 310 245 325

25.16 Tender 3 scored the highest margin in comparison to the others. Although Tender 3 did not

score well in the last 3 categories, it gained higher scores from the criterion most important

to the agency for this tender.

26. STEP – 10 - TENDER COMMITTEE

26.1 The tender committee is responsible for ensuring that a contestable, transparent,

accountable, arms length and without favouritism (probity) process has been followed, not to

duplicate the work of the evaluation team. This ensures that the Crown and the taxpayer

receive the best possible value for money.

26.2 A tender is only to be awarded after the tender report and supporting documentation has

been reviewed and agreed to by the tender committee. The following documentation must

be submitted to the tender committee:

(a) Cover letter outlining tender with reference to Cabinet minute endorsing purchase

of good/service, if required;


19

(b) Tender Report;

(c) Tender Checklist;

(d) Secretariat Internal Checklist;

(e) Tender Team Members (Team Leader, Recorder, Other Members);

(f) Tender Specification Document;

(g) Copy of all tender advertisements to confirm compliance with Step 7;

(h) Copy of all Advertisements of Tender in all media used;

(i) Tender Log (Registered Interest Log and Received Tenders Log);

(j) Original copy of Tender proposals received;

(k) Evaluation Criteria and chosen Evaluation Method;

(l) Evaluation Team Assessment Report;

(m) Site visit report (only applicable if a tender is for works to be carried out in the

Outer Islands);

(n) Any additional information as deemed relevant by the Agency.

26.3 To ensure a timely and effective review of tenders, the following documentation should be

submitted to the tender committee:

(a) The completed tender report with justifications attached including the assessment

report from the evaluation team.

(b) The comprehensive justification if the lowest evaluated and responsive tender is not

the preferred tender.

26.4 The tender committee may request any information or other supporting documentation

pertaining to the purchase or sale that would assist the tender committee in delivering a

favourable review.

26.5 The tender committee consists of the Financial Secretary (or nominee), Solicitor-General (or

nominee) and other technical advisors as required, provided that these advisors are not

member of the tender committee but act in an advisory capacity only.

26.6 The information for the tender committee should be placed in an envelope marked

“Confidential”, “Tender Documents” and “Urgent” and delivered to the Financial Secretary’s

office.

26.7 The tender committee will report on its findings as soon as practicable but no later than five

(5) working days after receipt of all the required documentation.

27. STEP 11- AWARDING OF THE CONTRACT

27.1 Only when the tender committee has approved the request to award the tender to the

proposed successful tenderer, can the contract be awarded to the successful tenderer. All

tenderers who submitted a tender proposal shall be immediately notified in writing, by the

agency of their success or failure in being awarded the tender.


20

27.2 Contract and/or post-offer negotiations may take place from this point only if this condition

has been allowed in the tender documentation.

27.3 All awards of tenders must be published on the CIG Procurement portal. Publication must

include the successful tenderer’s name and the title of tender.


21

CLOSED TENDER

A closed tender is a tender which is only open to certain parties which the agency has selected to provide a

response.

28. TENDER STEPS

28.1 The following are the steps which should be undertaken when conducting a closed tender.

Each of these steps is (aside from step 3) the same as that required for a public tender.

Please review the discussion above in respect of these steps.

Step 1: Ensure you have an appropriation.

Step 2: Ensure you have delegated authority to conduct the closed tender.

Step 3: Obtain the consent of the tender committee to conduct a closed tender.

Step 4: Establish a tender team to manage the tender process and an evaluation team to

evaluate tenders.

Step 5: Prepare design and specifications.

Step 6: Prepare tender documentation and contract.

Step 7: Forward proposed documentation to the tender secretariat for sign off.

Step 8: Advertise tender to selected parties.

Step 9: Open tender box and ensure tenders comply with the mandatory requirements.

Step 10: Evaluate tenders.

Step 11: Forward proposed award decision to Tender Committee for sign off.


29. TENDER COMMITTEE CONSENT

29.1 A closed tender process cannot be undertaken without the prior approval of the tender

committee. In making the request to conduct a closed tender, information on the following

must be provided to the tender committee:

(a) Why an open tender cannot take place.

(b) Budget/funding allocation; and

(c) List of suppliers which will be invited to tender.

29.2 Acceptable circumstances for undertaking a closed tender must include either one or all of

the following:

(a) Emergency situations that may adversely and unduly affect life, health or property.

(b) Restricted supplier market locally or specialist or single service provider on island e.g.

Telecom Cook Islands – only one supplier for telephone systems when supplying

telecommunication services.

(c) Restricted number of organisations who provide support, engineering or

maintenance services.


22

(d) A list of reputable suppliers with established working relationship with government

exists (annually updated) and has been lodged with the tender committee by the start

of the current financial year.

29.3 The maximum number of suppliers to be approached during a closed tender depends on the

technical nature of the product/project.

29.4 The tender committee will report on their findings as soon as practicable after the receipt of

all the required documentation depending on the technical nature of the product or project.


23

SALE OF ASSETS

30. RECORDING

30.1 Details and all related documentation for all sales labelled and filed clearly, and made available

for inspection, review and audit.

30.2 All related documentation for the process will be made available to the Ombudsman office

for investigation purposes if requested. All documentation is also subject to review by the

Audit Office under the provisions of the Public Expenditure Review Committee Act.

31. CONFIDENTIALITY

31.1 Employees of agencies should not, except so far as may be necessary for the proper

performance of the employee's duties, as authorised by the Head of Agency or as may be

required by law:

(a) Disclose to any person any official information that has come to the knowledge of

the employee in the course of the sale process;

(b) Use or attempt to use any such official information for personal benefit, or the

benefit of any other person or organisation, or in any manner whatsoever other than

in accordance with the duties, and consistent with the obligation, of honesty

expected of a person holding a position with the Crown.

32. CONFLICTS OF INTEREST

32.1 Where a conflict of interest arises, or could be seen to arise, the individual affected should

remove themselves from the sale situation and declare, in writing, to the Head of Agency any

actual or possible conflicts of interest. In the case of the Head of Agency, declaration should

be made to the Public Service Commissioner.

33. SALE STEPS

33.1 The following are the steps which should be undertaken when conducting the sale of any

agency assets.

Step 1: Ensure you have delegated authority to conduct the sale tender.

Step 2: Prepare asset for sale

Step 3: Obtain a valuation of the asset.

Step 4: Decide a reserve price.

Step 5: Advertise.

Step 6: Open tender box and evaluate tenders.


34. STEP 1-DELEGATED AUTHORITY

34.1 Prior to issuing any tender process all staff should ensure that they have the appropriate

delegated authority in order to do so and also that they act within the limits of that authority.


24

35. STEP 2 - PREPARE ASSET FOR SALE

35.1 After the decision is made that the surplus or replaced asset be sold by tender, the physical

details of the asset and any residual book values should be confirmed. The asset should

generally be prepared to its best possible condition (i.e. a motor vehicle should be groomed

and have a current WOF)

36. STEP 3 –VALUATION

36.1 The asset should be valued by a competent authority to ascertain the current market value of

the asset. This valuation should be checked by obtaining more than one valuation

37. STEP 4 – RESERVE PRICE

37.1 After obtaining the valuation a decision on any reserve price (or any other conditions) should

be confirmed and recorded in writing

38. STEP 5 - ADVERTISING

38.1 If the market value of the asset is more than $500 it must be publicly advertised. If the

market value is less than $500 it is permissible to only advertise the sale on staff notice

board(s).

38.2 The advertisement must include: the name of the agency offering the tender, the contact

person and details (telephone,/facsimile/email) for enquiries, a brief description of the goods

for sale, and the closing date and time of the lodgement of tender.

38.3 A minimum of 14 days is required prior to the closure of tenders and must be advertised in

the local newspaper(s), appearing a minimum of 5 times in total.

38.4 The advertisement must include the wording “highest or any tender not necessarily

accepted” so that all tenders can be refused if none meet the reserve decided in step 4

above.

38.5 Sample Tender advertisement:

TENDER NOTICE

Ministry of Name

Sale Tender

Tenders are sought for the sale of details. On an as is where is basis. For viewing/

inspection contact Name on ph 99999 for appointment. Highest or any offer not

necessarily accepted. Send written tender in a sealed envelope marked “Name of

Tender”, Ministry of Name PO Box #, Rarotonga, Cook Islands. Tenders close on the

date at time.

38.6 A tender box, clearly marked “Tenders” with a slot and locked casing should be prepared for

the purpose of the placement of tender proposals.

39. STEP 6 - OPENING OF TENDER PROPOSALS

39.1 All tenders should be listed as opened with the tenderers name and the amount offered


25

39.2 The selection of the successful tenderer decided upon by agency will be able to withstand

scrutiny if the evaluation process is conducted effectively.

40. STEP 7 – AWARD OF SALE

40.1 When all tenders have been listed, the awarding of the tender is made to the highest tender,

provided that the tendered amount meets any pre-determined reserve (based on current

market value) and any other condition imposed (for example no time payment allowed).

40.2 All tenders should be notified in writing, by the agency of their success or failure in being

awarded the tender, immediately. Please note Part B of the Financial Polices and Procedures

Manual with regards to the treatment of sale proceeds applies.

40.3 Should the highest tender be less than 70% of the market value of the asset being disposed of,

the agency should re-advertise the asset and all efforts must be made to ensure a sale price of

not less than 70% of the market value of the asset.

26

PROCUREMENT COMPLAINTS PROCESS

41. PURPOSE

41.1 This policy is designed to ensure accountability and transparency all Governments purchases

and sales by providing guidance on how to manage complaints.

42. MANDATORY REQUIREMENTS

42.1 All complaints regarding tenders must be dealt with in the manner set out in this policy. The

process must be conducted in a manner that is honest, ethical and fair to all the stakeholders

involved.

42.2 The complaints form per Appendix 1 must be completed correctly before a complaint can be

acknowledged. All complaints should first be lodged with the agency (Ministry, Department or

Agency), and if a complainant is not satisfied with the process or handling of their complaint,

then they can refer the matter on to the tender committee and then to the Ombudsman if

required.

42.3 Where the complainant is also an unsuccessful bidder then the response should include a

summary report on issues and possible improvements that could be made to their respective

tender submission.

42.4 A complaints register should be maintained and published. The register should be in the form

of the template at appendix 2.

42.5 All documentation of the complaints process must be kept on file for inspection or review and

audit verification purposes.

43. COMPLAINTS PROCESS

43.1 The following are the steps which must be undertaken when lodging a complaint.

Lodging your complaint with the Agency

43.2 Complaints must be lodged using the complaints form (refer to appendix 1) and should be sent

to the agency who issued the tender.

43.3 Upon receiving a complaint the agency in charge must issue a confirmation of receipt to

contact details provided in the form.

43.4 Within two working days the agency must issue an acknowledgement on behalf of the agency

which will include a reference number and information on the proposed review action.

43.5 Should an extended period of time be required to address issues raised, the complainant will

be advised in writing about this requirement.

43.6 The agency’s final decisions and outcome will be provided to complainant in writing and will

incorporate details of: assessments undertaken; and conclusions reached. The agency must

advise the complainant that if they are not satisfied with the outcome or handling of the

complaint they can refer this matter to the tender committee.

43.7 The case will then be closed.

43.8 A complaints register should be kept by the agency (see appendix 2)

43.9 De-brief meetings with unsuccessful bidders are encouraged as to minimise and eliminate

complaints.

27

Lodging a complaint with the Tender Committee

43.10 Complaints must be lodged using the complaints form (refer to appendix 1) and should be sent

to the tender committee.

43.11 Complaints should include copies of correspondence to show compliance with the process in

clause 43.2 above as the tender committee will not consider complaints until they have been

first determined by the agency.

43.12 Upon receiving a complaint the tender committee secretariat is required to issue a

confirmation of receipt to contact details provided in the form.

43.13 Within three working days the tender committee secretariat is required to issue an

acknowledgement letter of response on behalf of the tender committee which will include a

Reference Number and information on the proposed review action.



43.15 The tender committee’s final decision will be provided to complainant in writing and will

incorporate details of assessments undertaken and conclusions reached. The tender

committee must advise the complainant if they are not satisfied with the outcome or handling

of the complaint they can refer it to the Ombudsman.


43.17 A complaints register should be kept by the tender committee (see appendix 2) and published

quarterly on the procurement website.

Lodging a complaint with the Office of the Ombudsman

43.18 Upon receiving a complaint the Office of the Ombudsman must issue a confirmation of receipt.

43.19 Within two working days the Office of the Ombudsman must issue a formal response to the

complainant which will include a reference number and information on the proposed review

action.



43.21 The Ombudsman’s final decisions and outcome will be provided to complainant in writing and

will incorporate details of assessments undertaken and conclusions reached.

43.22 A complaints register should be kept by the office of the Office of the Ombudsman (see

appendix 2) and published via the procurement website.


28

Appendix 1: Public Tendering Complaints Form

Project Title:

Tender ID:

Procuring entity:

Tender Closing

Date:

Addressee of complaint (Tick one box only):

Name of

complainant:

Occupation:

Company:

Phone:

Fax:

Email:

P.O Box:

Address:

Brief description/summary of complaint:

Procuring Entity

Tender Committee

Office of the Ombudsman

29

Supporting documentation:

Desired relief, action or ruling:

30

Appendix 2: Complaints Register

(Insert Ministry Letter Head/Department Header)

Complaints Register (Insert Financial Year)

Date

(Case

opened)

Project Title Tender

ID

Summary Complaint Resolution/Outcome Date

(Case closed)

31

SCHEDULE ONE: Mandatory Tender Requirements for Purchases

There are terms and conditions that must be contained in all tender documents. These terms are all contained

in the template documentation which you should use when preparing a tender.

1. The name of the agency responsible for the tender.

2. The venue for lodgement, date and time for closure of acceptance of Tenders.

3. That it is the tenderer’s responsibility to ensure that their proposal reaches the designated venue by

the specified date and time.

4. The format or forms required for completion in order for a proposal to be accepted. The following

clause should be included to emphasise this requirement: ‘Tenders must be completed in the format

contained in “Attachment #”. If offers do not comply with the format contained in Attachment #, they

will not be accepted.’

5. That all tender proposals and related documentation be presented in the English language.

6. It is the tenderer’s responsibility to visit the location of the project in order to assess the true costs to

complete the project where necessary.

7. Whether tender proposals will be accepted for all or part of the specifications listed for tender. The

specifications may include statements such as: ‘The Tenderer must tender to provide services or

supply materials for the whole contract works…’ or ‘Tenderers may tender to supply services or

materials for sections of the entire specifications but must tender for the whole requirements of that

section.’

8. In order for foreign companies to carry on business in the Cook Islands, an application for approval

must be sought from the Business Trade and Investment Board. Any fees associated with the

registration are to be covered by the tenderer.

9. A template for costing and other details should be prepared and tenderers are required to submit

using the template to ensure that the tenderer submits the required information and that all tender

proposals are consistent for the purposes of evaluating the tenders.

10. What forms of tender are permitted, i.e. electronic versions or hard copy only.

11. That negotiations will not take place between the tender team/evaluation team and the prospective

suppliers during the advertising stage.

12. Information on how the tenders will be assessed and how the successful tenderer will be chosen.

13. Request for details of financial or contractual requirements that the tenderer will apply if awarded the

tender.

14. If there is likely to be a short listing of tenderers, then terms and conditions for this process must be

clearly stated.

15. The process for informing the successful tenderer must be clearly stated (timeframe from opening of

tender box, timeframe after evaluation process, and the manner of doing so).

16. The process for informing unsuccessful tenderers and a statement that they have the right to appeal

the decision.

17. There must be a statement of the agency’s intentions to contact referees, competitors or customers

to enquire on the performance of the tenderer.

32

18. There must be a statement about the ability (or inability) of any tenderer to request evaluation

documents. Note: This decision is at the discretion of the Head of Agency.

19. That no gifts or entertainment of any nature will be permitted between any parties involved

throughout the tender process, including: tenderers or potential tenderers, tender team members,

evaluation team members, the Head of Agency, or any other member or organisation that may have an

involvement with any aspect of the tender process.

20. Tenders must be inclusive of freight landed in Rarotonga (or the relevant island) for ease of comparing

local and overseas tenders.

33

SCHEDULE TWO: SECRETARIAT INTERNAL CHECKLIST FOR PURCHASES

Utilise this checklist to assist with checking whether tender documents are in line with public tendering requirements. It must be submitted

back to the Head of Agency after being endorsed by the tender secretariat prior to the advertising stage of that tender no less than 2 working

days upon receiving overall draft documentation. This should be provided to the tender committee along with tender secretariat covering

analysis report. If at any point you answer NO, stop the tender process, take steps to remedy the situation and when the answer becomes

YES, continue.

REFERENCE

TO MANUAL

DETAILS INCLUDED IN

TENDER

SPECS?

YES NO

NOTES

Cover sheet – this provides basic information about the

proposal offer and should be typewritten on the

Agency’s letterhead.

YES NO

Schedule 1, clause

1

The name of the agency responsible for the tender. This

must be clearly stated.

YES NO

Schedule 1, clause

2

Venue for lodgement, date and time for closure of

acceptance of tenders.

YES NO

Schedule 1, clause

3

It is the tenderer’s responsibility to ensure the proposal

reaches the designated venue by the specified time and

date.

YES NO

Schedule 1, clause

4

The format or forms required for completion in order

for a proposal to be accepted. The following clause

should be included to emphasize this requirement:

‘Tenders must be completed in the format contained in

“Attachment #.” If offers do not comply with the format

YES NO

34

contained in Attachment #, they will not be accepted.’

Schedule 1, clause

5

It must be clearly stated that all tender proposals and

related documentation be presented in the English

language.

YES NO

Schedule 1, clause

6

It is the tenderer’s responsibility to carry out any site

visits necessary.

YES NO

Schedule 1, clause

7

It must be clearly stated whether tender proposals will

be accepted for all or part of the specifications listed for

tender.

YES NO

Schedule 1, clause

8

Notes the need for compliance with BTIB requirements. YES NO

Schedule 1, clause

9

A template for costing and other details should be

prepared and tenderers required to submit.

YES NO

Schedule 1, clause

10

What forms of tender are permitted, i.e. electronic or

hard copy only.

YES NO

Schedule 1, clause

11

That negotiations will not take place between the

tender/evaluation team and the prospective suppliers

during the advertising stage.

YES NO

Schedule 1, clause

12

Information on how the tender will be assessed and how

the successful tenderer will be chosen.

YES NO

Schedule 1, clause Request for details of financial or contractual

requirements that the tenderer will apply if awarded the

YES NO

35

13 tender.

Schedule 1, clause

14

If there is likely to be a short-listing of tenderers, then

terms and conditions for this process must be clearly

stated.

YES NO

Schedule 1, clause

15

The process for informing the successful tenderer must

be clearly stated (timeframe from opening of tender box,

timeframe after evaluation process, and the manner in

which tenderers will be advised).

YES NO

Schedule 1, clause

16

The process for informing unsuccessful tenderers. YES NO

Schedule 1, clause

17

There must be a statement about the agency’s intentions

of contacting referees, competitors or customers to

enquire on the performance of the tenderer.

YES NO

Schedule 1, clause

18

There must be a statement advising whether the

tenderers may request disclosure of evaluation

documents. Note: This decision is at the discretion of

the HoA.

YES NO

Schedule 1, clause

19

That no gifts or entertainment of any nature will be

permitted between any parties involved throughout the

tender process.

YES NO

Schedule 1, clause

20

Quotes must be inclusive of freight landed in Rarotonga

(or other relevant island).

YES NO

Clause 20 Specifications completed. YES NO

36

Clause 21.3 Contract completed. YES NO

Clause 21.4 Price schedules completed. YES NO

Clause 21.8 Evaluation criteria completed. YES NO

Section for only the Agency to complete

Clause 19.1 A tender team has been established. YES NO

Clause 19.5 An evaluation team has been established. YES NO

37

SCHEDULE THREE: TEMPLATE AGREEMENTS AND GUIDES

The following are documents which can be used to assist you in completing various stages of the procurement

process:

1. Template Request for Tenders;

2. Template Evaluation Report;

3. Contract for Supply of Product and Services;

4. Contract for the Supply of Product;

5. Contract for the Engagement of a Consultant; and

6. Contract for Low Value Constriction Projects.

Each of these documents is attached. If you have any questions about how to use these documents, please

contact either the procurement secretariat or Crown Law.

38

ATTACHMENT ONE: TEMPLATE REQUEST FOR TENDERS

Request for Tender

Name of Project Reference No. ________________

Date of Release: ________________

[Title of Ministry]

Version No. 1 [Remove before public release]

Remove this page before formal release of the document.

- Revision History

- Document Acceptance

Action Name Signed Date

Revision No. Prepared By Description Date

-

-

-

-

-

-

-

-

- Glossary and Definitions

Term Explanation

RFT Request for Tender

Tender Management Team The team that is responsible for the management of this Tender, including the evaluation and administrative functions

Evaluation Committee The group of people within the Tender Management Team that will evaluate this Tender

Manual The Cook Islands Government Financial Policies and Procedures manual

All Ministries, Island Administrations and Crown Funded Agencies follow appropriate

procedures for all purchases and sales.

Cook Islands Government Financial Policies & Procedures Part D Section 2 2.3

It is the purpose of this template to assist officials in complying with this requirement by identifying the appropriate procedures in a logical sequence. Guidance is provided in the form of these text boxes that should be deleted upon the completion of the relevant section.

The template can be tailored to meet the complexity of the procurement being undertaken, but some elements are mandatory regardless of complexity. Therefore, elements within the template are identified as Optional or Mandatory.

Table of Contents

GLOSSARY AND DEFINITIONS .............................................................................................................................................. 2

INTRODUCTION (MANDATORY WITH EACH OF ITS COMPONENTS) ..................................................................................... 4

SUMMARY OF REQUIREMENT ......................................................................................................................................................... 4

SUBMISSION OF TENDER/OFFER ..................................................................................................................................................... 4

TENDER/OFFER CLOSING TIME ....................................................................................................................................................... 4

CONTACT OFFICER........................................................................................................................................................................ 5

SELECTION PROCESS ............................................................................................................................................................ 5

NOTIFICATION OF ACCEPTANCE (MANDATORY, FOR SIMPLE PROCUREMENTS THE PROCESS MAY BE CONDENSED AND

MUCH OF THIS SECTION OMITTED.) .................................................................................................................................... 5

PROBITY (MANDATORY) ..................................................................................................................................................... 5

CONFIDENTIALITY (OPTIONAL) ............................................................................................................................................ 6

STATEMENT OF REQUIREMENT(S) (MANDATORY) .............................................................................................................. 6

CONDITIONS OF TENDERING (MANDATORY) ...................................................................................................................... 6

STANDARD CONDITIONS (MANDATORY) ............................................................................................................................ 6

SPECIAL CONDITIONS (MANDATORY FOR MAJOR/COMPLEX WORKS. FOR SIMPLE PROCUREMENTS THERE MAY BE NO

SPECIAL CONDITIONS, SO DELETE THIS SECTION IN THIS INSTANCE.) ................................................................................... 7

APPENDIX A ........................................................................................................................................................................ 9

FORM OF TENDER ........................................................................................................................................................................ 9

Schedule of Prices ............................................................................................................................................................. 11

Proposed Subcontractors .................................................................................................................................................. 11

Preliminary Delivery Programme ...................................................................................................................................... 12

Referees who may be Contacted ...................................................................................................................................... 12

APPENDIX B ....................................................................................................................................................................... 13

TENDER SPECIFICATIONS .............................................................................................................................................................. 13

Specifications .................................................................................................................................................................... 13

Schedule of Prices ............................................................................................................................................................. 13

Schedule of Particulars...................................................................................................................................................... 13

APPENDIX C ....................................................................................................................................................................... 14

DRAFT CONTRACT ...................................................................................................................................................................... 14

APPENDIX D ...................................................................................................................................................................... 15

EVALUATION CRITERIA ................................................................................................................................................................ 15

- Introduction (Mandatory with each of its components)

- Summary of Requirement

Through this RFT, the [insert name of Ministry] wishes to implement [insert name of parent programme, if

relevant]. This RFT is for [briefly describe the goods and/or services to be supplied under the terms of the tender].

- Submission of Tender/Offer

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

- Tender/Offer Closing Time

Tenders close at __:__ pm on __ _________ 201_. The Tender Box is located at _______________ and tenders

should be addressed to:

Ministry

Name of Tender Official

Ministry’s postal address

The tenderer is responsible for ensuring that the tender is placed in the Tender Box by the closing time.

Late tenders will not be accepted.

Specify the location of the Tender Box and the form in which tenders are to be submitted. For

example,

Tenders shall be submitted in two complete hard copies, packaged and labelled “CONFIDENTIAL” and

have the following information clearly exhibited on the outside:

Name of the Crown agency responsible for the RFT.

Name of the Contact Officer and contact details (see below).

Name of tenderer, contact person and contact details.

Tender title and Reference No.

Tender closing time and date.

Tenders must be placed in the Tender Box and submitted in the form specified in Appendix ___ by the

due date. Failure to do so will result in the tender being disqualified.

NOTE: Telefax and electronic tenders will not be accepted.

- Contact Officer

Negotiations will not be permitted between the Tender Team and any prospective tenderers during the tender

advertising period. However, prospective tenderers may seek clarification of the tender documents prior to

submitting their tenders. Any enquiries in relation to this tender should be directed to the Contact Officer

identified below. Tenderers should note that to ensure no disadvantage to any tenderers, responses to

questions pertaining to this RFT will be [insert details of the process for sharing responses to tender questions.

This could take the form of a Question and Answer section on the procurement website or a specified section

within the newspaper or both].

Any enquiries in relation to this tender should be directed to the Contact Officer at the address given below.

Name of Person:

Title:

Address:

Phone:

E-mail:

- Selection Process All tenders deposited in the Tender Box by the Closing Time will be considered. Tenders submitted in the form

specified in Appendix __ to this RFT will then proceed to the evaluation stage.

Evaluation of the responses to this RFT will be in accordance with the Evaluation Criteria described in

Appendix ___. Failure to comply with the Standard Conditions will result in immediate exclusion from the

Evaluation process.

- Notification of Acceptance (Mandatory, for simple procurements the process may be

condensed and much of this section omitted.) Tenders shall remain open for acceptance and shall not be withdrawn for a period of sixty (60) working days

from the Closing Date of the tender. Unsuccessful tenderers shall be notified in writing by the Principal or their

representative within 10 working days of acceptance of the successful tender.

If no tender is accepted by the Principal within twenty (20) working days after the Closing Date, each tenderer

will be notified in writing by the Principal or their representative whether their tender is still under

consideration or is no longer being considered.

The Tender Team reserves the right to contact referees and/or customers regarding the performance of the

tenderer as it may pertain to this RFT.

The Principal shall not be bound to accept the lowest priced tender or the highest scored tender or any tender.

When the preferred supplier has been identified by the Tender Team, the Principal will invite the supplier to

enter into negotiations based on the draft contract at Appendix ___ to this RFT. Only when the parties have

agreed to the terms of the contract and executed the contract will the Principal issue to the successful tenderer

a Letter of Acceptance.

- Probity (Mandatory) No gifts or entertainment of any nature will be permitted between any parties involved throughout the tender

process, including: tenderers or potential tenderers, tender team members, evaluation team members, the

Head of Ministry, or any other member or organisation that may have an involvement with any aspect of the

tender process.

- Confidentiality (Optional) Place a standard Confidentiality Statement into this Section. Suggestion:

Drawings, Specifications, Schedules and written technical information supplied to Tenderers shall not

be used for purposes other than the preparation of a Tender without the approval of the Principal.

Information submitted by a Tenderer shall be regarded as confidential and shall not be disclosed to a third party

except with the prior written agreement of the Tenderer.

- Statement of Requirement(s) (Mandatory)

-

- Conditions of Tendering (Mandatory)

-

-

-

-

- The Standard Conditions, or the Standard Terms of Tender as they are referred to in Clauses 4.5.1.2 and 4.7.5 of

the Manual are the Mandatory Criteria applying to this Tender. Any offer that does not meet the terms

specified in the Standard Conditions below is non-conforming and will not be evaluated.

- Standard Conditions (Mandatory)

1. Tenders must be completed in the format contained in Appendix ____ of this RFT. If offers do not comply

with this format, they will not be accepted.

2. Tenders must be deposited in the required form in the Tender Box by the closing time as specified in

Clause ___ of this RFT.

3. All proposals and related documentation in respect of this RFT must be in the English language.

4. Tenderers must tender to provide services or supply materials for the whole of the contract works as

specified in Appendix ___ “Specifications”. (This Clause may be omitted if there is discretion in the works

to be provided under this RFT.)

5. Tenders must be presented in hard copy format only and delivered in a sealed envelope to the location

specified in Clause ___ of this RFT. Telefax and electronic proposals will not be accepted.

6. All prices quoted must be inclusive of freight landed in Raratonga.

7. Any other item that is critical to the delivery of the requirement and cannot be compromised. For

example, there might be pre-qualification conditions attached to the RFT and tenderers not meeting such

requirements should be excluded.

In this section you should specify the conditions that attach to this tender. The conditions should

be divided into Mandatory and Desirable categories. The mandatory requirements derive from the

policies and procedures of Government that must be observed in every procurement. The

Desirable items are the discretionary elements that will differ between tenders and broadly

determine the difference between tenders submitted.

Insert a brief description of the Requirements for this RFT. The description should capture the

critical elements of the Specifications and any critical deadlines, such as commencement date,

location for delivery, time for completion. The Manual describes this in the context of

Specifications – see clause 4.5.1.4.

8. It must be clearly stated that in order for foreign companies to carry on business in the Cook Islands, an

application for approval must be sought from the Business Trade and Investment Board (BTIB). Any fees

associated with the registration are to be covered by the bidder.

- Special Conditions (Mandatory for Major/Complex Works. For simple procurements there

may be no Special Conditions, so delete this section in this instance.)

Where works are to be carried out in the Outer Islands for any tender project, it is the tenderer’s

responsibility to visit the location of the project in order to assess the true costs to complete the project.

(Clause 4.5.1.2.6 of the Manual refers).

In this Section describe the elements that are unique to this RFT. For example, tenderers might be required to

provide staff with specific professional qualifications or equipment that conforms to certain operational or safety

requirements.

It must be clearly stated whether tenderers must tender for all or part of the goods and/or services listed in the

tender. Statements such as “The Tenderer must tender to supply goods and/or provide services for the whole of the contract

works.........” or “Tenderers may tender to supply materials or services for sections of the entire specifications but must tender

for the whole requirements of that section.”

The Special Conditions are the desirable attributes of the RFT, so it is not essential for tenderers to meet all of

these conditions. However, failure to meet these conditions will diminish a tenderers chance of success.

APPENDICES -

-

-

-

APPENDIX A Form of Tender

[Insert the address to which

responses to this RFT must

be directed]

Having examined the Tender Documents in relation to Tender Reference No. ________ and dated __/__/201,

released by [insert the title of the Ministry or agency managing the Tender], we submit the following offer.

We offer to complete, handover to the Principal and remedy defects in the whole of the said Tender

Specifications in conformity with these Tender Documents for the sum of [insert the price offered in text with

the value in numbers thus (NZD$__________.__)] stated exclusive of Value Added Tax, together with such other

sums as may be ascertained in accordance with the Contract.

We undertake to complete and handover the whole of the Contract Works/Goods/Services within the period

stated in the Conditions of Tendering.

We agree to abide by this Tender for a period of sixty (60) days from the date fixed for receiving the same and it

shall remain binding upon us and may be accepted by you at any time before the expiry of that period.

Unless and until a Contract Agreement is prepared and executed, this Tender together with your written

acceptance thereof, shall constitute a binding contract between us.

We understand that you are not bound to accept the lowest or any Tender you may receive.

We understand that no contract shall come into existence, and no legal or other obligations shall arise between

us and you (or between us and any other agent of the Principal) in relation to the conduct, outcome or

otherwise of the Tender process, prior to and apart from your acceptance of our Tender.

We understand that you may contact the referees nominated by us in this offer and make whatever enquiries

you deem necessary regarding our financial health and ability to deliver the Contract Works/Goods/Services.

Further, during the assessment stage we understand and agree that you may request specific information from

all tenderers in order to assist your assessment. We acknowledge that a failure to provide such information

may result in disqualification from the process.

We provide the following information required to be submitted with this Tender:

This outline of the Form of Tender is based on the New Zealand Standard NZS 3910:2003 – Conditions of Contract

for Building and Civil Engineering Construction. It may not be appropriate for other Works/Goods/Services, but

provides a good example of the requirements to be included in the Form of Tender.

Completed Schedule of Prices

Proposed Subcontractors (if relevant)

Preliminary Delivery Programme

List of Referees you may contact in relation to this offer.

Signature: _______________________________________________________________________

Printed Name: _______________________________________________________________________

Position Held: _______________________________________________________________________

Tenderer: _______________________________________________________________________

Address: _______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________

Date: _______________________________________________________________________

E-mail Address: _______________________________________________________________________

Phone No.: _______________________________________________________________________

Facsimile No.: _______________________________________________________________________

Schedule of Prices

Proposed Subcontractors

Name: ________________________________________________________________

Company: ________________________________________________________________

Address: ________________________________________________________________

________________________________________________________________

________________________________________________________________

E-mail Address: ________________________________________________________________

Phone No.: ________________________________________________________________

Facsimile No.: ________________________________________________________________

Works/Skills to be performed.

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Educational/Technical Qualifications:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Work Experience:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Clause 4.5.1.5 of the Manual details the requirements of a Schedule of Prices. The requirements you specify in this

Section will vary according to the level of complexity of the RFT and the nature of the item(s) being procured. This

needs to be included in the Tender Specifications, so simply copy that information into this section.

There is no set form for the information you might seek in this Section. The table below may be used as an example

of the information you might wish to gather, and will largely be determined by the nature of the Due Diligence you

wish to undertake for this procurement.

Preliminary Delivery Programme

Referees who may be Contacted

Name: ________________________________________________________________

Company: ________________________________________________________________

Address: ________________________________________________________________

________________________________________________________________

________________________________________________________________

E-mail Address: ________________________________________________________________

Phone No.: ________________________________________________________________

Facsimile No.: ________________________________________________________________

Nature of Relationship with Tenderer:

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

This should include the Delivery Schedule as set out in the Statement of Requirements and the Specifications. It may

include a provision for the Tenderer to comment on the proposed schedule and suggest an alternative. This could be

driven by the availability of required supplies/services, prevailing weather conditions or other external factors that

might need to be taken into consideration during the evaluation process.

APPENDIX B Tender Specifications

Specifications

Schedule of Prices

Schedule of Particulars

Refer to Clauses 4.5.1.4 to 4.5.2 of the Manual for guidance on what should be included in this Appendix. Note that

the Manual requires these to be prepared by an engineer, specialised consultant or suitably qualified professional

(Clause 4.5.2).

This Appendix, as a minimum, should contain:

Specifications – essentially the Statement of Requirement in most cases

Schedule of prices

Schedule of Particulars

APPENDIX C Draft Contract

Please indicate whether any amendments are required to the contract terms attached to this tender. If no

amendments are suggested Tenderers will be expected to enter into the agreement without amendment. Any

proposed amendments will be form part of the assessment criteria.

Please select one of the standard contracts to include here. If you are unsure which contract to use or whether the

contracts are suitable for your project please contact Crown Law.

APPENDIX D Evaluation Criteria

The Evaluation Criteria has been drawn from the Statement of Requirements, Standard Conditions and

Special Conditions as articulated in the RFT. In accordance with clause 4.7.5 of the Manual, Tenders

that did not meet the Standard Conditions are deemed non-compliant.

- Standard Conditions

Criterion Complies Yes or No

1. Tender is completed in the format contained in Appendix ___ of the RFT.

2. Tenders must be deposited in the required form in the Tender Box by the closing time specified in the RFT

3. Proposal and related documentation must be in the English language.

4. Tenderers must tender to provide the whole of the works/goods/services specified in the RFT. (In some circumstances Tenderers may be able to tender for part of the requirement. This criterion should reflect the conditions of the RFT.)

5. Tenders must be presented in hard copy format only.

6. All prices must be in NZ dollars and inclusive of freight landed in Raratonga.

The Evaluation Criteria must be established at the outset and included in the Tender documents so potential

suppliers know how their proposal will be assessed. If for any reason the Evaluation Criteria is changed prior to

the Closing of Tenders, all prospective respondents should be advised accordingly. This may be done by directly

contacting those who have collected tender documents or reserved a set of documents for collection or by

advertising in the same media used to advertise the Tender.

The Evaluation Criteria should be divided into two sections, Standard Conditions and Special Conditions. Both

of these criteria must align with the Conditions of Tendering included in the RFT.

Standard Conditions are mandatory and failure to comply with any of these requirements will result in

automatic exclusion from the evaluation process.

The Evaluation Criteria shall use a ‘Weighted Scoring’ method to ensure that Value for Money (VfM) can be

assessed taking into account all factors weighted according to their importance in respect of the Statement of

Requirements. This is illustrated below.

- Special Conditions

A Weighted Criteria methodology will apply to the evaluation of the Special Conditions of this

RFT. The assignment of weightings is based on the following principles:

The Special Conditions that reflect the critical elements of the project will be assigned a

weight

Weightings will reflect the relative importance of each criterion

Scores will be based on the information provided in the submitted Tender

Non-price criteria will not have a value exceeding 40%.

Criteria Weight

%

Non-Price Criteria

1. Locally established company Locally supplied resources (labour and/or materials)

5

2. Compliance with contract terms 5

3. Relevant skills 10

4. Past Performance 5

5. Technical Skills 10

6. Resources 5

7. Management Skills 5

Total Non-Price Elements 40

Price 60

TOTAL WEIGHTING 100

The table below is indicative only. You should ensure that the criterion reflect the Statement of

Requirements and Special Conditions contained in the RFT. You must consider the relative

importance of each criterion and apply an appropriate weight.

Clauses 4.8.3 and its various sub-clauses of the Manual provide further guidance on how you should

weight these criteria.

- Risk

The Evaluation Committee will conduct a Risk Assessment for each Tender submitted. This will

identify the most significant risks presented by the Tender and consider the Likelihood of the

risk occurring; the consequence of that risk; and a risk mitigation strategy. In conclusion, the

mitigated risk will be determined to form an overall measure of the risk represented by each

Tender.

The Risk Mitigation Strategy may include the inclusion of specific clauses in the executed

contract. Therefore, a Tender considered to be High Risk might still be selected subject to the

Tenderer’s willingness to accept the proposed contract amendments.

ATTACHMENT TWO: TEMPLATE EVALUATION REPORT

Name of Project

Reference No. ________________

Date of Release: ________________

[Title of Ministry]

Evaluation Report

Version No. 1 [Remove before public release]

Remove this page before formal release of the document.

1. Revision History

2. Document Acceptance

Action Name Signed Date

Revision No. Prepared By Description Date

1 Doug Rankin Initial draft of template

25 Sept. 2013

3.

4.

5.

6.

7.

8.

9.

10.

11.

Glossary and Definitions

Term Explanation

RFT Request for Tender

Tender Management Team The team that is responsible for the management of this Tender, including the evaluation and administrative functions

Evaluation Committee The group of people within the Tender Management Team that will evaluate this Tender

Manual The Cook Islands Government Financial Policies and Procedures manual

All Ministries, Island Administrations and Crown Funded Agencies follow appropriate

procedures for all purchases and sales.

Cook Islands Government Financial Policies & Procedures Part D Section 2 2.3

It is the purpose of this template to assist officials in complying with this requirement by identifying the appropriate procedures in a logical sequence. Guidance is provided in the form of these text boxes that should be deleted upon the completion of the relevant section.

The template can be tailored to meet the complexity of the procurement being undertaken, but some elements are mandatory regardless of complexity. Therefore, elements within the template are identified as Optional or Mandatory.

1. Background (Provide a brief descript of the tender and project, funding source, purpose and how long the project

is intended to run and benefits to the Cook Islands Government)

2. Procurement Method (State procurement method and provide a brief background on how/why the procurement method

was used. State if an EOI was conducted or not, how as information disseminated to services providers

or to the market, etc)

(a) Date tender advertised…………………….Date tender closed….……………… (Minimum 10 working days

(b) Tender advertised in what media? (Minimum 3)

1.

2.

3.

3. Tender Management Summary Include details of the Tender Management Team and those members identified as forming the

Evaluation Committee and any Technical Advisors used. General Tender information

4. Evaluation Summary 1. (Confirm Funding appropriation; provide a summary table on bids received and confirmation

of persons present at the tender opening box. In the same table identify if the tender bids

received conformed with the requirements of the tender document)

2. Provide a Summary table of Evaluation Panel Weighted Average Scores (Be sure to include

original score sheets as an appendix.

3. Provide an analytical summary on bids received weighted against the total average score.

4. Highlight any relevant comments made by the Evaluation team

5. Risk Assessment of Tenderers

Highlight any potential risk if application in assessing the Bids

6. Recommendation Provide a summary of the Evaluations team’s recommendations highlighting the successful bidder and

contract price.

Include any other comment that is relevant to the final recommendation.

ATTACHMENT THREE: CONTRACT FOR SUPPLY OF PRODUCTS AND SERVICES

Purchase of Products and Services Contract: Guidance Note This contract template has been developed by Crown Law for the purchase of products and services.

If you only need to purchase products and do not require services, please use the template for the

Purchase of Products.

This contract is designed so that the Terms and Conditions of Supply contain all the terms and

conditions of the contract, and all the specific project details are in the front section. We recommend

that you do not change these terms and conditions of the contract; if you do need to alter them, you

must consult Crown Law for assistance.

When to use this contract

The following are guidelines for when you should use this contract; you may find that this contract is

suitable even though the work falls outside some of the guidelines. If you are in doubt, please contact

Crown Law.

Type of purchase Purchase of any goods and services. Can be a one off or for ongoing

(i.e. monthly) deliveries.

Value All purchases of goods and services.

Examples Purchase of a tank along with installation services.

Completing the Contract Details

It is important that you read over the whole contract to ensure you understand what you are

committing the agency to, and what you are entitled to expect from your supplier.

You should keep a record of this contract stored for reference during the term of contract, and for six

years afterwards in case any defects which may result in claims are discovered later. As there is a high

probability that key people in the agency will change over that time, it is important to make sure that

all contract documentation is kept together, and that the agency have clear records of where they are

stored and how to access them.

Who are the Parties?

Principal to the

Contract

The Government Loans and Contracts Act 1968 provides that all government

contracts must be entered into in the name of Her Majesty the Queen.

Government contracts are any contract for the supply of goods or services

or the execution of any works in consideration of any payment out of public

moneys.

Insert the name of the agency which will be supervising the contract and

works on behalf of the Crown on the cover page of the Contract.

Contractor

It is important to use the full legal name of the Supplier. Is it a company,

individual, or a company trading under a different name?

Insert the Supplier’s name next to ‘Supplier’ on the cover page of the

Contract.

What are the product details?

Product and Services Provide a description of the product and services to be provided; if you need to provide more details, these can be added as an Appendix to this contract.

Delivery Provide details of when and where the products and services are to be delivered.

Price Provide details of how payments are to be made. Specifically how much and whether it is paid in instalments or by way of lump sum.

Insurance Provide details of any insurance you will require from the Supplier. Include the type of cover required and also cover levels.

Contact Person Insert the name and contact details of the Government representative. Insert the name and contact details of the Supplier representative.

Additional Terms

Insert any special requirements that are not already covered in the contract. These may include details of inspection requirements, standards which need to be complied with, whether product can be used or must be new or any other terms that you may require. Please do not hesitate to contact Crown Law with assistance as to whether further terms are required and how they should be worded.

PURCHASE ORDER

Government: Her Majesty the Queen acting by and though [insert details of Ministry or Department]

Signed:_____________________________

Name:

Position:

Date:

Supplier: [Insert Supplier details]

Signed:_____________________________

Name:

Position:

Date:

___________________________________________________________________________________

Product and Services: [insert details of product and services to be supplied including the purpose for which

the product and service is being purchased]

Delivery: [insert details of where product and services should be delivered to and when]

Price: [insert details of the amount to be paid, including if it is as a lump sum or by instalments]

Insurance: [insert details of any insurance requirements, i.e. type of cover and cover levels]

Contact Person:

Government Contact: [insert details]

Supplier Contact: [insert details]

Additional Terms: [insert any special requirements that are not already covered in this Purchase Order or

the agreement terms. These may include details of inspection requirements, standards which need to be

complied with, whether product can be used or must be new or any other terms that you may require. Please

do not hesitate to contact Crown Law with assistance as to whether further terms are required and how they

should be worded.]

TERMS AND CONDITIONS FOR SUPPLY OF PRODUCT AND SERVICES The Supplier agrees to supply the Product and Services described and detailed in the Purchase Order issued by the Government of the Cook Islands (the “Government”) on the following terms and conditions:

1. APPLICATION These terms and conditions apply to all purchases of Product and Services except where the Government agrees in writing that they be varied or do not apply. These terms and conditions supersede any contrary provisions in the Supplier’s terms and conditions of supply including those terms that the Supplier normally uses. No right under these terms and conditions shall be deemed to be waived except by notice in writing by each party. In the event that any one or more of the provisions contained in these terms and conditions are declared invalid by an order, decree or judgment of any Court of competent jurisdiction, these terms and conditions will be read as if such provision had not been inserted.

2. PRICES 2.1. The prices stated on the Government’s Purchase Order are fixed, unless there is a written agreement stipulating the

price may be varied, when it may be varied and how the price is to be determined. 2.2. The price includes the Services, freight, insurance, packaging, crating, local cartage, customs duty and/or any other

services in the delivery of the Product. 2.3. The price shall be in New Zealand dollars unless otherwise specified in the Purchase Order. 2.4. The price is exclusive of VAT. 2.5. The Supplier is not entitled to claim expenses, surcharges or margins or disbursements except if otherwise agreed in

advance and in writing by the Government. 3. DELIVERY

3.1. The time of delivery and performance of the Product and Services is a fundamental element of these terms and conditions.

3.2. The Product and Services shall be delivered and rendered in a prompt and timely manner on or within the delivery dates specified in the Purchase Order. All Product and Services must be delivered and performed within the Government business hours (normal business hours are 8:00 am to 4:00 pm, Monday to Friday), unless otherwise specified in the Purchase Order.

3.3. The Supplier shall notify the Government in writing immediately when the Supplier becomes aware there may be a delay in the delivery of Product or rendering of Services to the Government.

3.4. The Government is entitled to cancel the Purchase Order or change its specification (without incurring additional charges) if the Product and/or Services are not rendered or supplied on the supply dates or times specified in the Purchase Order.

3.5. All Product and Services must be supplied to the address specified in the Purchase Order. The Supplier shall make itself aware of any special requirements when supplying the Product and Services to Government property.

3.6. When Product is delivered to the Government it shall be accompanied by a delivery docket that records the Purchase Order number, the description, quantity with the applicable units of measure, unit rates and dollar values of the Product and Services delivered. The delivery docket must be signed for and retained by a Government officer.

3.7. All Product shall be packaged in a manner to prevent damage or deterioration when being delivered to the Government.

3.8. The Government may use other suppliers for the supply of Product and Services, or product and services of the same nature as the Product and Services, at any time.

4. IDENTIFICATION 4.1. The Purchase Order number must be shown on all packages, invoices and correspondence relating to the Product

and Services. Product supplied against an invalid Purchase Order or without a Purchase Order, will be returned to the Supplier at the Supplier's expense including the cost of packaging, transportation, insurance and handling of the Product and Services.

4.2. Where applicable, the Supplier grants the Government access to the Supplier’s premises, facilities and staff concerning the delivery and identification of the Product. The Government shall have the right to audit and inspect the Supplier’s records concerning delivery of the Product and rendering of the Services. These rights are for both the Government and any other party that has the use or benefit of the Product and Services.

5. QUALITY, INSPECTION AND ACCEPTANCE It is a condition of these terms and conditions and the Supplier warrants that: 5.1. All Product and Services shall be in accordance with any requirements set out in these terms and conditions and/or in

the Purchase Order and shall be free from defects in workmanship, materials and design. These obligations survive acceptance of the Product and Services and payment.

5.2. The Supplier shall use the highest reasonable standard of skill, care and quality and employ techniques, methods, procedures and materials of a high quality and standard in accordance with best professional practice in providing the Product and rendering the Services.

5.3. The Supplier will comply with all relevant (a) Cook Island standards and international standards (if not in conflict) (both general and industry-specific); (b) statutes; (c) regulations; (d) by-laws; (e) ordinances; and (f) Government policies, applicable in respect of the supply of the Product and rendering the Services.

5.4. Where the Supplier has the benefit of any warranties or covenants from a third party in respect of the Product and Services, the Supplier shall disclose and assign the benefit of the warranties and/or covenants to the Government.

5.5. The Product and any result or product of the rendering of the Services, its material and workmanship, shall be subject to inspection and testing at all reasonable times and places by the Government (or those parties to whom the Government supplies the Product) before, during or after delivery.

5.6. If inspection and testing is to be conducted on the premises of the Supplier or the Supplier’s sub-contractors, the Supplier shall provide (without additional charge) all reasonable facilities and assistance for the safe and convenient inspection and testing required by the Government's inspectors in the performance of their duty.

5.7. The Supplier acknowledges that the signing of a delivery note or similar on behalf of the Government does not constitute acceptance of any Product and/or Services. The Government may reject any Product and/or Services (as applicable), even after they have been accepted, that: (a) are not of merchantable quality; (b) are not fit for purpose as stipulated in the Purchase Order; (c) are in an unsatisfactory condition or not functioning in the way they are designed to function; or (d) do not otherwise meet the requirements (including requirements relating to delivery) of these terms and conditions, or in circumstances where the Services do not meet the requirements of clause 5.1("Rejected Product"/"Rejected Services").

5.8. For any Rejected Product or Rejected Services the Supplier will, within ten (10) business days of receiving notice of Government's rejection of the Rejected Product or Rejected Services, at the Government's sole and absolute discretion and at the Supplier's sole risk and expense: (a) repair the Rejected Product; (b) replace the Rejected Product; (c) request the re-performance of the Services (d) remove the Rejected Product for full credit or reimbursement; or (e) suspend or cancel the Services.

5.9. Title to the Rejected Product will pass back to the Supplier on the earlier of the replacement of the Rejected Product, or refund or credit of any amounts paid by the Government as specified in clause 5.8(c).

5.10. Clauses 5.7 and 5.8 do not limit or negate any other rights or remedies that the Government may have under these terms and conditions or at law.

5.11. A lack of Government inspection does not relieve the Supplier of any responsibility to perform its obligations according to these terms and conditions.

6. OWNERSHIP AND RISK 6.1. Subject to clauses 5.7 and 5.8:

a. title in the Product passes to the Government when the Product is delivered to the Government or when the Government completes payment for the Product, whichever is the earlier date;

b. the Product remains at the Supplier’s risk until the Product is delivered to the Government and is declared by the Government as not being Rejected Product or Rejected Services.

6.2. Where the Product is delivered to the Government subject to the Services, the Product remains at the Supplier’s risk until the Government is satisfied with the complete rendering of the Services.

7. PAYMENT 7.1. The Supplier shall provide to the Government’s Contact Person, within five (5) business days of the end of the month

following delivery of the Product or rendering of the Services, a VAT tax invoice for each delivery of the Product and rendering of the Services, stating Purchase Order number, date of delivery and full description of the Product and Services and quantity delivered. Invoices received without all of these details will be returned to the Supplier, unpaid.

7.2. If monthly charges are applicable, the Supplier shall supply to the Contact Person specified in the Purchase Order a monthly statement of that month’s deliveries not later than the tenth business day of the month following delivery.

7.3. Invoices and statements are to be addressed to the address specified in the Purchase Order. 7.4. Subject to clause 5, payment for Product delivered, once accepted, will be effected on the first Wednesday on or after

the 20th of the month following the date of the Supplier’s VAT tax invoice or receipt of the delivery of the Product, whichever is the later.

7.5. Any invoices provided by the Supplier which have not met the requirements of this Payment clause will not be effected.

7.6. Payment will be effected by Electronic Funds Transfer (EFT) (direct credit). 8. CONFLICT

8.1. The Supplier confirms it has no knowledge of any conflict of interest in providing the Product and rendering the Services.

8.2. If any conflict arises or has the potential to arise during the supply of the Product and Services, the Supplier shall immediately inform the Government in writing and the Government will decide on the appropriate steps to be followed in such event, which may include the right of the Government to terminate the Purchase Order with immediate effect.

9. INTELLECTUAL PROPERTY 9.1. “Intellectual Property” includes copyright, designs, drawings, specifications, reports, data and documentation. All

Intellectual Property arising from the provision of the Services (“New IP”) is owned by the Government and the Supplier shall co-operate with the Government (including by signing documents) to help the Government protect its rights in the New IP.

9.2. To the extent that New IP incorporates or requires Intellectual Property arising outside of the provision of the Services (“Pre-existing IP”), the Supplier licences, or shall procure the licence to the Pre-existing IP for the Government on a perpetual, royalty-free basis.

9.3. The Supplier warrants and represents to the Government that the New IP and the Pre-existing IP will not infringe the Intellectual Property rights of any third party.

10. ASSIGNMENT The Supplier must not assign, transfer or sub-contract any rights or obligations applicable under these terms and conditions without the prior written consent of the Government, such consent to be given at the Government’s absolute discretion.

11. NOTICES 11.1. All correspondence shall include the Purchase Order number and addressed to the Government’s Contact Person

named on the Purchase Order form. 11.2. All correspondence shall be in writing sent by email, mail with postage prepaid or by hand delivery to the address for

notices as set out above or such other address as a party has notified in writing. 11.3. Subject to clause 11.4, notice given in person is deemed to be served upon delivery or by post three (3) business

days after the date of posting. Any notice served on a non-business day is deemed to have been served on the first business day after that day. Any notice by email shall be deemed to be received on the first business day after such email has reached the receiver’s designated information system for receiving emails or, in all other situations, when the email comes to the receiver’s attention.

11.4. The Government shall only be deemed to have received delivery of a notice upon the Government acknowledging in writing receipt of the notice.

12. INDEMNITY The Supplier indemnifies the Government in respect of all costs (including legal costs), claims, liabilities, losses, damage and expenses suffered or incurred by the Government and any other person claiming through the Government as a direct or indirect consequence of any unlawful, negligent, tortious, criminal, reckless or dishonest errors, acts or omission of the Supplier in the performance of its obligations under these terms and conditions. This indemnity survives the termination of these terms and conditions.

13. REMEDIES The Supplier shall not be entitled to anticipatory profits or to special (including multiple or punitive), incidental or consequential damages or losses.

14. INSURANCES 14.1. The Supplier shall take out and maintain at its own cost, at all times during the continuance of these terms and

conditions, such insurances as specified in the Purchase Order. All such insurance shall be on such terms and with such insurers as the Government may reasonably require.

14.2. The Supplier shall, if requested by the Government, provide the Government with written evidence that all insurances are in force and shall produce, whenever reasonably required by the Government, the relevant policies and evidence of payment of the current premiums. If the Supplier fails to provide such evidence the Government may, after notifying the Supplier in writing, arrange or keep in force that insurance and may, for the purpose of doing so, pay the relevant premiums and deduct a corresponding amount from any moneys payable by Government to the Supplier under these terms and conditions.

15. LAW These terms and conditions are governed by the laws of the Cook Islands. The parties agree to submit to the exclusive jurisdiction of the High Court of the Cook Islands.

16. TERMINATION FOR CONVENIENCE Notwithstanding anything to the contrary contained in these terms and conditions, the Government shall be entitled to cancel any applicable Purchase Order, at its convenience, on 10 days' written notice to the Supplier; provided the Government will pay for all Product and Services rendered delivered to the satisfaction of the Government in respect of any Purchase Order, prior to the date of notice of cancellation.

17. GENERAL WARRANTIES The Supplier represents, warrants and undertakes that: 17.1. it has full power, capacity and authority to execute, deliver and perform its obligations under these terms and

conditions or any Purchase Order; 17.2. it has and will continue to have, all necessary consents, permissions, licences and rights to enter into and perform its

obligations under these terms and conditions or any Purchase Order; 17.3. there are no existing agreements, undertakings or arrangements which prevent it from entering into these terms and

conditions or which would impede the performance of its obligations under these terms and conditions or any Purchase Order;

17.4. it has not offered any inducement in connection with the entering into or negotiation of these terms and conditions or any Purchase Order and;

17.5. it has not (nor is any of its representative directors or employees) a party to any litigation, proceedings or disputes which could adversely affect its ability to perform its obligations under these terms and conditions or any Purchase Order.

ATTACHMENT FOUR: CONTRACT FOR THE SUPPLY OF PRODUCT

Purchase of Product Contract: Guidance Note This contract template has been developed by Crown Law for the purchase of products. If you need to purchase

services as well as products, please use the template for the Purchase of Products and Services.

This contract is designed so that the Terms and Conditions of Supply contain all the terms and conditions of the

contract, and all the specific project details are in the front section. We recommend that you do not change these

terms and conditions of the contract; if you do need to alter them, you must consult Crown Law for assistance.


The following are guidelines for when you should use this contract; you may find that this contract is suitable even

though the work falls outside some of the guidelines. If you are in doubt, please contact Crown Law.

Type of purchase Purchase of any goods. Can be a one off or for ongoing (i.e. monthly)

deliveries.

Value All goods purchases.

Examples Purchase of stationary supplies, buildings materials.


It is important that you read over the whole contract to ensure you understand what you are committing the

agency to, and what you are entitled to expect from your supplier.

You should keep a record of this contract stored for reference during the term of contract, and for six years

afterwards in case any defects which may result in claims are discovered later. As there is a high probability that

key people in the agency will change over that time, it is important to make sure that all contract documentation

is kept together, and that the agency have clear records of where they are stored and how to access them.


Principal to the

Contract



Government contracts are any contract for the supply of goods or services

or the execution of any works in consideration of any payment out of public

moneys.

Insert the name of the agency which will be supervising the contract and

works on behalf of the Crown on the cover page of the Contract.

Contractor

It is important to use the full legal name of the Supplier. Is it a company,

individual, or a company trading under a different name?

Insert the Supplier’s name next to ‘Supplier’ on the cover page of the

Contract.


Product Provide a description of the product to be delivered; if you need to provide more details, these can be added as an Appendix to this contract.

Delivery Provide details of when and where the products are to be delivered to.

Price Provide details of how payments are to be made. Specifically how much and whether it is paid in instalments or by way of lump sum.

Insurance Provide details of any insurance you will require from the Supplier. Include the type of cover required and also cover levels.

Contact Person Insert the name and contact details of the Government representative. Insert the name and contact details of the Supplier representative.

Additional Terms

Insert any special requirements that are not already covered in the contract. These may include details of inspection requirements, standards which need to be complied with, whether product can be used or must be new or any other terms that you may require. Please do not hesitate to contact Crown Law with assistance as to whether further terms are required and how they should be worded.

PURCHASE ORDER


Signed:_____________________________

Name:

Position:

Date:

Supplier: [Insert Supplier details]

Signed:_____________________________

Name:

Position:

Date:

_____________________________________________________________________________________

Product: [insert details of product to be supplied including the purpose for which the product is being purchased]

Delivery: [insert details of where product should be delivered to and when]

Price: [insert details of the amount to be paid, including if it is as a lump sum or by instalments]

Insurance: [insert details of any insurance requirements, i.e. type of cover and cover levels]

Contact Person:



Additional Terms: [insert any special requirements that are not already covered in this Purchase Order or the agreement

terms. These may include details of inspection requirements, standards which need to be complied with, whether product

can be used or must be new or any other terms that you may require. Please do not hesitate to contact Crown Law with

assistance as to whether further terms are required and how they should be worded.]

TERMS AND CONDITIONS FOR SUPPLY OF PRODUCT

The Supplier agrees to supply the Product categorised above and more specifically described and detailed in the Purchase Order issued by the Government of the Cook Islands (the “Government”) on the following terms and conditions: 1. APPLICATION

These terms and conditions apply to all purchases of Product except where the Government agrees in writing that they be varied or do not apply. These terms and conditions supersede any contrary provisions in the Supplier’s terms and conditions of supply including those terms that the Supplier normally uses. No right under these terms and conditions shall be deemed to be waived except by notice in writing by each party. In the event that any one or more of the provisions contained in these terms and conditions are declared invalid by an order, decree or judgment of any Court of competent jurisdiction, these terms and conditions will be read as if such provision had not been inserted. 2. PRICES

2.1. The prices stated on the Government’s Purchase Order are fixed, unless there is a written agreement stipulating the price may

be varied, when it may be varied and how the price is to be determined.

2.2. The price includes freight, insurance, packaging, crating, local cartage, customs duty and/or any other services in the delivery

of the Product.

2.3. The price is exclusive of VAT.

2.4. The Supplier is not entitled to claim expenses, surcharges or margins or disbursements except if otherwise agreed in advance

and in writing by the Government.

3. DELIVERY

3.1. The time of delivery of the Product is a fundamental element of these terms and conditions.

3.2. The Product shall be delivered and rendered in a prompt and timely manner on or within the delivery dates specified in the

Purchase Order. All Product must be delivered within the Government business hours (normal business hours are 8:00 am to

4:00 pm, Monday to Friday), unless otherwise specified in the Purchase Order.

3.3. The Supplier shall notify the Government in writing immediately when the Supplier becomes aware there may be a delay in the

delivery of Product to the Government.

3.4. The Government is entitled to cancel the Purchase Order or change its specification (without incurring additional charges) if

the Product is not supplied on the supply dates or times specified in the Purchase Order.

3.5. All Product must be supplied to the address specified in the Purchase Order. The Supplier shall make itself aware of any

special requirements when supplying the Product to Government property.

3.6. When Product is delivered to the Government it shall be accompanied by a delivery docket that records the Purchase Order

number, the description, quantity with the applicable units of measure, unit rates and dollar values of the Product delivered.

The delivery docket must be signed for and retained by a Government officer.

3.7. All Product shall be packaged in a manner to prevent damage or deterioration when being delivered to the Government.

3.8. The Government may use other suppliers for the supply of Product, or product of the same nature as the Product, at any time.

4. IDENTIFICATION

4.1. The Purchase Order number must be shown on all packages, invoices and correspondence relating to the Product. Product

supplied against an invalid Purchase Order or without a Purchase Order, will be returned to the Supplier at the Supplier's

expense including the cost of packaging, transportation, insurance and handling of the Product.

4.2. Where applicable, the Supplier grants the Government access to the Supplier’s premises, facilities and staff concerning the

delivery and identification of the Product. The Government shall have the right to audit and inspect the Supplier’s records

concerning delivery of the Product. These rights are for both the Government and any other party that has the use or benefit of

the Product.

5. QUALITY, INSPECTION AND ACCEPTANCE

It is a condition of these terms and conditions and the Supplier warrants that: 5.1. All Product shall be in accordance with any requirements set out in these terms and conditions and/or in the Purchase Order

and shall be free from defects in workmanship, materials and design. These obligations survive acceptance of the Product and

payment.

5.2. The Supplier shall use the highest reasonable standard of skill, care and quality and employ techniques, methods, procedures

and materials of a high quality and standard in accordance with best professional practice in providing the Product.

5.3. The Supplier will comply with all relevant (a) Cook Island standards and international standards (if not in conflict) (both general

and industry-specific); (b) statutes; (c) regulations; (d) by-laws; (e) ordinances; and (f) Government policies, applicable in

respect of the supply of the Product.

5.4. Where the Supplier has the benefit of any warranties or covenants from a third party in respect of the Product, the Supplier

shall disclose and assign the benefit of the warranties and/or covenants to the Government.

5.5. The Product, its material and workmanship, shall be subject to inspection and testing at all reasonable times and places by the

Government (or those parties to whom the Government supplies the Product) before, during or after delivery.

5.6. If inspection and testing is to be conducted on the premises of the Supplier or the Supplier’s sub-contractors, the Supplier shall

provide (without additional charge) all reasonable facilities and assistance for the safe and convenient inspection and testing

required by the Government's inspectors in the performance of their duty.

5.7. The Supplier acknowledges that the signing of a delivery note or similar on behalf of the Government does not constitute

acceptance of any Product. The Government may reject any Product, even after they have been accepted, that: (a) are not of

merchantable quality; (b) are not fit for purpose as stipulated in the Purchase Order; (c) are in an unsatisfactory condition or

not functioning in the way they are designed to function; or (d) do not otherwise meet the requirements (including requirements

relating to delivery) of these terms and conditions, ("Rejected Product").

5.8. For any Rejected Product the Supplier will, within ten (10) business days of receiving notice of Government's rejection of the

Rejected Product, at the Government's sole and absolute discretion and at the Supplier's sole risk and expense: (a) repair the

Rejected Product; (b) replace the Rejected Product; (c) remove the Rejected Product for full credit or reimbursement; and in

the case of clause 5.8(c), reimburse/credit the Government in full for any amounts paid by the Government in respect of the

Rejected Product.

5.9. Title to the Rejected Product will pass back to the Supplier on the earlier of the replacement of the Rejected Product, repair of

the Rejected Product or, refund or credit of any amounts paid by the Government as specified in clause 5.8(c).

5.10. Clauses 5.7 and 5.8 do not limit or negate any other rights or remedies that the Government may have under these terms and

conditions or at law.

5.11. The Government’s failure to inspect does not relieve the Supplier of any responsibility to perform its obligations according to

these terms and conditions.

6. OWNERSHIP AND RISK

6.1. Subject to clauses 5.7 and 5.8:

a. title in the Product passes to the Government when the Product is delivered to the Government or when the

Government completes payment for the Product, whichever is the earlier date;

b. the Product remains at the Supplier’s risk until the Product is delivered to the Government.

6.2. Where the Product is delivered to the Government to be installed and/or commissioned, the Product remains at the Supplier’s

risk until the completion of installation and commissioning.

7. PAYMENT

7.1. The Supplier shall provide to the Government’s Contact Person, within five (5) business days of the end of the month following

delivery of the Product, a VAT tax invoice for each delivery of the Product, stating Purchase Order number, date of delivery

and full description of the Product and quantity delivered. Invoices received without all of these details will be returned to the

Supplier, unpaid.

7.2. If monthly charges are applicable, the Supplier shall supply to the Contact Person specified in the Purchase Order a monthly

statement of that month’s deliveries not later than the tenth business day of the month following delivery.

7.3. Invoices and statements are to be addressed to the address specified in the Purchase Order.

7.4. Subject to clause 5, payment for Product delivered, once approved, will be effected on the first Wednesday on or after the 20th

of the month following the date of the Supplier’s VAT tax invoice or receipt of the delivery of the Product, whichever is the

later.

7.5. Any invoices provided by the Supplier which have not met the requirements of this Payment clause will not be affected.

7.6. Payment will be effected by Electronic Funds Transfer (EFT) (direct credit).

8. CONFLICT

8.1. The Supplier confirms it has no knowledge of any conflict of interest in providing the Product.

8.2. If any conflict arises or has the potential to arise during the supply of the Product, the Supplier shall immediately inform the

Government in writing and the Government will decide on the appropriate steps to be followed in such event, which may

include the right of the Government to terminate the Purchase Order with immediate effect.

9. ASSIGNMENT

The Supplier shall not assign or sub-contract any rights or obligations applicable under these terms and conditions without the prior written consent of the Government given at its discretion. 10. NOTICES

10.1. All correspondence shall include the Purchase Order number and addressed to the Government’s Contact Person named on

the Purchase Order form.

10.2. All correspondence shall be in writing sent by email, mail with postage prepaid or by hand delivery to the address for notices

as set out above or such other address as a party has notified in writing.

10.3. Subject to clause 10.4, notice given in person is deemed to be served upon delivery or by post three (3) business days after

the date of posting. Any notice served on a non-business day is deemed to have been served on the first business day after

that day. Any notice by email shall be deemed to be received on the first business day after such email has reached the

receiver’s designated information system for receiving emails or, in all other situations, when the email comes to the receiver’s

attention.

10.4. The Government shall only be deemed to have received delivery of a notice upon the Government acknowledging in writing

receipt of the notice.

11. INDEMNITY

The Supplier indemnifies the Government in respect of all costs (including legal costs), claims, liabilities, losses, damage and expenses suffered or incurred by the Government and any other person claiming through the Government as a direct or indirect consequence of any unlawful, negligent, tortious, criminal, reckless or dishonest errors, acts or omission of the Supplier in the performance of its obligations under these terms and conditions. This indemnity survives the termination of these terms and conditions. 12. REMEDIES

The Supplier shall not be entitled to anticipatory profits or to special (including multiple or punitive), incidental or consequential damages or losses. 13. INSURANCES

13.1. The Supplier shall take out and maintain at its own cost, at all times during the continuance of these terms and conditions,

such insurances as specified in the Purchase Order. All such insurance shall be on such terms and with such insurers as the

Government may reasonably require.

13.2. The Supplier shall, if requested by the Government, provide the Government with written evidence that all insurances are in

force and shall produce, whenever reasonably required by the Government, the relevant policies and evidence of payment of

the current premiums. If the Supplier fails to provide such evidence the Government may, after notifying the Supplier in writing,

arrange or keep in force that insurance and may, for the purpose of doing so, pay the relevant premiums and deduct a

corresponding amount from any moneys payable by Government to the Supplier under these terms and conditions.

14. LAW

These terms and conditions are governed by the laws of the Cook Islands. The parties agree to submit to the non-exclusive jurisdiction of the High Court of the Cook Islands. 15. TERMINATION FOR CONVENIENCE

Notwithstanding anything to the contrary contained in these terms and conditions, the Government shall be entitled to cancel any applicable Purchase Order, at its convenience, on 10 business days' written notice to the Supplier; provided the Government will pay for all Product delivered to the satisfaction of the Government in respect of any Purchase Order, prior to the date of notice of cancellation. 16. GENERAL WARRANTIES

The Supplier represents, warrants and undertakes that: 16.1. it has full power, capacity and authority to execute, deliver and perform its obligations under these terms and conditions or any

Purchase Order;

16.2. it has and will continue to have, all necessary consents, permissions, licences and rights to enter into and perform its

obligations under these terms and conditions or any Purchase Order;

16.3. there are no existing agreements, undertakings or arrangements which prevent it from entering into these terms and

conditions or which would impede the performance of its obligations under these terms and conditions or any Purchase Order;

16.4. it has not offered any inducement in connection with the entering into or negotiation of these terms and conditions or any

Purchase Order and;

16.5. it has not (nor is any of its representative directors or employees) a party to any litigation, proceedings or disputes which could

adversely affect its ability to perform its obligations under these terms and conditions or any Purchase Order.

ATTACHMENT FIVE: CONTRACT FOR THE ENGAGEMENT OF A CONSULTANT

Consultancy Contract: Guidance Note

This contract template has been developed by Crown Law for the purchase of products and services. If you only need to

purchase products and do not require services, please use the template for the Purchase of Products.

This contract is designed so that the Terms and Conditions of Supply contain all the terms and conditions of the contract, and

all the specific project details are in the front section. We recommend that you do not change these terms and conditions of

the contract; if you do need to alter them, you must consult Crown Law for assistance.


The following are guidelines for when you should use this contract; you may find that this contract is suitable even though the

work falls outside some of the guidelines. If you are in doubt, please contact Crown Law.

Type of purchase Purchase of any goods and services. Can be a one off or for ongoing (i.e.

monthly) deliveries.

Value All purchases of services and goods and services.

Examples Purchase of.


It is important that you read over the whole contract to ensure you understand what you are committing the agency to, and

what you are entitled to expect from your supplier.

You should keep a record of this contract stored for reference during the term of contract, and for six years afterwards in

case any defects which may result in claims are discovered later. As there is a high probability that key people in the agency

will change over that time, it is important to make sure that all contract documentation is kept together, and that the agency

have clear records of where they are stored and how to access them.


Principal to the

Contract



Government contracts are any contract for the supply of goods or services or the

execution of any works in consideration of any payment out of public moneys.

Insert the name of the agency which will be supervising the contract and works on

behalf of the Crown on the cover page of the Contract.

Contractor

It is important to use the full legal name of the Supplier. Is it a company, individual,

or a company trading under a different name?

Insert the Supplier’s name next to ‘Supplier’ on the cover page of the Contract.


Project Insert the project name.

Location Provide details of where the work will be carried out.

Scope and Nature Provide a description of the services to be provided; if you need to provide more

details, these can be added as an Appendix to this contract.

of the Services

Programme for the

Services Provide a timeline and any key dates for completion of the project.

Fees and Timing of

Payments

Provide details of how payments are to be made. Specifically how much and

whether it is paid in instalments or by way of lump sum.

Key Personnel Provide a list of the key personnel to

Insurance Provide details of any insurance you will require from the Consultant. Include the

type of cover required and also cover levels.

Contact Person Insert the name and contact details of the Government representative.

Insert the name and contact details of the Consultant representative.

Schedule


Signed:_____________________________

Name:

Position:

Date:

Consultant: [Insert Consultant details]

Signed:_____________________________

Name:

Position:

Date:

_____________________________________________________________________________________

Project:

Location:

Scope and Nature of the Services:

Programme for the Services:

Fees and Timing of Payments:

Insurance:

Contact Person:



Key Personnel:

TERMS AND CONDITIONS FOR THE ENGAGEMENT OF A CONSULTANT

Her Majesty the Queen acting by and through the Government of the Cook Islands (the “Government”) agrees to engage the Consultant and the Consultant agrees to provide the Services described in the Schedule on the following conditions:

1. Application: These terms and conditions supersede any contrary provisions in any previous agreements between parties, written or

otherwise. No right under these terms shall be deemed to be waived except by notice in writing by each party. In the event that any

one or more of the provisions contained in these conditions are declared invalid by order, decree or judgment of any Court of

competent jurisdiction, these conditions are to be read as if such provision had not been inserted.

2. Services: The Consultant shall perform the Services as described in the attached Schedule in accordance with any requirements set

out in these terms and conditions and/or in the Schedule. The time of performance of the Services is a fundamental element of these

terms and conditions. The Consultant shall notify the Government in writing immediately when the Consultant becomes aware there

may be a delay in the delivery of the Services. The Government is entitled to cancel these terms and conditions or change its

specification (without incurring additional charges) if the Services are not supplied on the supply dates or times specified in the

Schedule. Where the Consultant has the benefit of any warranties or covenants from a third party in respect of the Services, the

Consultant shall disclose and assign the benefit of the warranties and/or covenants to the Government.

3. Skill: The Consultant shall use the highest reasonable standard of skill, care and quality and employ techniques, methods,

procedures and materials of a high quality and standard in accordance with best professional practice in rendering the Services. The

Consultant will comply with all relevant (a) Cook Island standards and international standards (if not in conflict) (both general and

industry-specific); (b) statutes; (c) regulations; (d) by-laws; (e) ordinances; and (f) Government policies, applicable in respect of the

supply of the Services.

4. Independent Judgment: Where the Services require the Consultant to certify, decide or use discretion under a contract between the

Government and a third party, the Consultant must act independently, and with professional skill and judgment, and according to the

terms of the contract between the Government and the third party.

5. Delay: If at any time the Consultant’s performance falls behind the programme set out in the Schedule then the Consultant shall

notify the Government and, where the delays are due to matters within the control of the Consultant, shall take all practicable steps to

remedy such delay.

6. Variations: The Government may order variations to the Services in writing or may request the Consultant to submit proposals for

variation to the Services. Where the Consultant considers a direction from the Government or any other circumstance is or may give

rise to a variation the Consultant shall notify the Government as soon as practicable.

7. Payment: The Government shall pay the Consultant for the Services the fees and expenses at the times and in the manner set out in

the Schedule. The prices stated in the Schedule are fixed unless there is a written agreement stipulating the price may be varied,

when it may be varied and how the price is to be determined. The price is exclusive of VAT. The Consultant is not entitled to claim

expenses, surcharges, margins or disbursements except if otherwise agreed in advance and in writing by the Government.

8. Liability: Where the Consultant breaches these terms and conditions, the Consultant is liable to the Government for reasonably

foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach. The Consultant shall not be entitled to

anticipatory profits or to special (including multiple or punitive), incidental or consequential damages or losses.

9. Contribution to Loss: If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or

a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own

contribution.

10. Indemnity: The Consultant indemnifies the Government in respect of all costs (including legal costs), claims, liabilities, losses,

damage and expenses suffered or incurred by the Government and any other person claiming through the Government as a direct or

indirect consequence of any unlawful, negligent, tortious, criminal, reckless or dishonest errors, acts or omission of the Consultant in

the performance of its obligations under these terms and conditions. This indemnity survives the termination of these terms and

conditions.

11. Insurance: The Consultant shall take out and maintain at its own cost, at all times during the continuance of these terms and

conditions, such insurances as specified in the Schedule. All such insurance shall be on such terms and with such insurers as the

Government may reasonably require. The Consultant shall, if requested by the Government, provide the Government with written

evidence that all insurances are in force and shall produce, whenever reasonably required by the Government, the relevant policies

and evidence of payment of the current premiums. If the Consultant fails to provide such evidence the Government may, after

notifying the Consultant in writing, arrange or keep in force that insurance and may, for the purpose of doing so, pay the relevant

premiums and deduct a corresponding amount from any moneys payable by Government to the Consultant under these terms and

conditions.

12. Intellectual Property: “Intellectual Property” includes copyright, designs, drawings, specifications, reports, data and documentation.

All Intellectual Property arising from the provision of the Services (“New IP”) is owned by the Government and the Consultant shall co-

operate with the Government (including by signing documents) to help the Government protect its rights in the New IP. To the extent

that New IP incorporates or requires Intellectual Property arising outside of the provision of the Services (“Pre-existing IP”), the

Consultant licences, or shall procure the licence to the Pre-existing IP for the Government on a perpetual, royalty-free basis. The

Consultant warrants and represents to the Government that the New IP and the Pre-existing IP will not infringe the Intellectual

Property rights of any third party.

13. Termination: The Government may, at its convenience, terminate all or part of the Services by 10 days’ written notice to the

Consultant who shall immediately make arrangements to stop the Services and minimise further expenditure. The Consultant may, in

the event the Government is in material default, terminate these terms and conditions by 10 days’ written notice to the Government.

Any suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the parties. Further, the

Government may terminate these terms and conditions immediately where, in the opinion of the Government, there has been serious

misconduct by the Consultant. Serious misconduct includes, but is not limited to: bringing the Government into disrepute, where the

Consultant, in the judgment of the Government, has engaged in corrupt or fraudulent practices in competing for or executing these

terms and conditions, thieft of property, offensive behaviour towards Government personnel, members of the public or contractors.

14. Confidentiality: The Consultant must keep confidential all information provided by the Government in relation to these terms and

conditions and the provisions of the Services and not disclose the same without the written consent of the Government.

15. Public Statements: The Consultant must not make any public statements about the Services or these terms and conditions without

the Government’s written approval.

16. General Warranties: The Consultant represents, warrants and undertakes that:

a. it has full power, capacity and authority to execute, deliver and perform its obligations under these terms and conditions;

b. it has and will continue to have, all necessary consents, permissions, licences and rights to enter into and perform its

obligations under these terms and conditions;

c. there are no existing agreements, undertakings or arrangements which prevent it from entering into these terms and

conditions or which would impede the performance of its obligations under these terms and conditions;

d. it has not offered any inducement in connection with the entering into or negotiation of these terms and conditions; and

e. it has not (nor is any of its representative directors or employees) a party to any litigation, proceedings or disputes which could

adversely affect its ability to perform its obligations under these terms and conditions.

17. Conflict: The Consultant confirms it has no knowledge of any conflict of interest in providing the Services. If any conflict arises or has

the potential to arise during the supply of the Services, the Consultant shall immediately inform the Government in writing and the

Government will decide on the appropriate steps to be followed in such event, which may include the right of the Government to

terminate these terms and conditions with immediate effect.

18. Key Personnel: The Key Personnel for the provision of the Services are as listed in the Schedule. Any change to the Key Personnel

requires the written consent of the Government.

19. Assignment: The Consultant must not assign, transfer or subcontract all or part of its rights or obligations under these terms and

conditions without the prior written consent of the Government’s, such consent to be provided at the Government’s absolute

discretion.

20. Law: These terms and conditions are governed by the laws of the Cook Islands. The parties agree to submit to the exclusive

jurisdiction of the High Court of the Cook Islands.