Request for Tender - Goods and Services

Request for tender

(“Rft”)

BY

[Insert name of department]

FOR

Tender Description: [Insert description of RFT]

RFT Number: [Insert RFT No.]

Enquiries about this RFT should be directed to the Contact Officer:

Name:[Insert name of contact officer]

Telephone:(03) [Insert telephone number]

Email:[Insert email address]

Facsimile:(03) [Insert facsimile number]

Address:[Insert street address]

Place to lodge Tender:

Tender Box

[Insert Department Name]

[Insert Street Address]

or

Electronic Tender Box

[Insert details of website]

Closing Time:

[Insert tender closing time and date] (Tasmanian time)

Issue Date:

[Insert date RFT starts]

Pre-Tender Briefing [Note to Drafters: Delete if not relevant]:

A pre-tender briefing session will be held at:

[Insert details of time, date and place]

16

GOODS & SERVICES VERSION

Cover PageStandard Request for Tender for Goods and Services

4851-17 | Version No. 15 – July 2019

Contents

Cover Page

Contents Page

Part One-Important Information for Tenderers

Part Two-Conditions of Tender

Part Three-Specification and Required Additional Information

Part Four-Conditions of Contract

Part Five-Tender Form

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Version 11.1

16

ContentsStandard Request for Tender for Goods and Services

Tender No. [Insert Tender number]4851-17 | Version No. 15 – July 2019

Part OneImportant information for tenderersExplanation of the RFT documentationConditions of Tender

The Conditions of Tender are the conditions on which the Department will receive and evaluate Tenders. The Department may reject a Tender that does not comply with all the terms of the RFT.

The Conditions of Tender also specify the evaluation criteria against which Tenders will be evaluated.

Specification

The Specification provides a comprehensive description of the Department’s Requirements.

Conditions of Contract

The Conditions of Contract contain the terms of the contract which the successful Tenderer must sign. It may be varied only by agreement between the Tenderer and the Department during the Tender evaluation and negotiation process.

A contract to supply the Department’s Requirements is not formed until counterparts of the Conditions of Contract have been signed and exchanged between the Department and the Tenderer.

Tender Form

The Tender Form is a required form which must be returned as part of the Tender. A Tender is likely to be rejected if this Form is not used. A Tender must contain all the information and details required by this RFT.

Pre-Tender briefing

If a pre-tender briefing is to be provided, details are set out on the Cover Page of this RFT. It is strongly recommended that Tenderers attend.

Contact Officer for RFT enquiries

During the tender period, prospective Tenderers may seek clarification of the general or technical areas of this RFT from the Contact Officer. Contact details are provided on the Cover Page of this RFT. Unauthorised communication with other staff may lead to disqualification of the Tender.

Lodging a Tender

Details for lodgement of Tenders are on the Cover Page of this RFT and in clauses 13, 14 and 15 of the Conditions of Tender.

Prospective Tenderers should note that one permitted method of lodgement is electronic lodgement into the specified Electronic Tender Box. Details for electronic lodgement are in clauses 14 and 15 of the Conditions of Tender.

By lodging a Tender, a Tenderer may become bound by the Conditions of Tender and in particular, clauses 3, 4, 5, 11, 12, 13, 14, 18 and 19.

Assistance to prepare a Tender

Information on preparing a Tender is available on the Tasmanian Government’s Purchasing website at <> under Winning Government Business.

Conditions about the Professional Standards Act 2005 (Tas)Conditions of Appointment

The Department will only appoint, as successful Tenderer, a Tenderer who agrees to the following conditions, when relevant.

No scheme in force

If no scheme in force under the Professional Standards Act 2005 (Tas) applies to the Tenderer, the Tenderer must waive all present and future rights, against the Crown, to claim any limitation of liability provided by a future scheme under that Act, in relation to future legal liability, claims or proceedings arising from, or attributable to, the Tenderer delivering the Department’s Requirements including a wrongful (including negligent) act or omission.

Scheme in force

If a scheme applies to the Tenderer, the Tenderer’s liability under the Contract will be limited in accordance with and subject to the scheme.

Increase to maximum liability under scheme

To the extent that the scheme allows the Tenderer to apply for a higher maximum amount of liability than would otherwise apply to the Tenderer under the scheme, the Tenderer must ensure that the limit of the Tenderer’s liability under the scheme is not less than the level described in the Specification.

Crown policy on confidentiality of information in Government contracts

The Crown is committed to ensuring that Government contracting is conducted in an open and transparent manner. The Crown policy in relation to confidentiality in Government contracts is set out in clause 20.6 of the Conditions of Tender.

Important Information for Tenderers Page 3Standard Request for Tender for Goods and Services

Tender No. [Insert tender number]4851-17 | Version No. 15 – July 2019

Part TwoConditions of Tender1. Definitions

In this RFT, unless the context precludes it:

“Closing Time” means the closing time (Tasmanian time) and date for submitting Tenders shown on the cover page of this RFT or as extended under clause 3.2;

“Conditions of Contract” means the Conditions of Contract contained in Part “Four” of this RFT;

“Contact Officer” means the person identified as Contact Officer on the cover page of this RFT;

“Contractor” means the Person with whom the Crown enters into a contract to provide the Department’s Requirements;

“Crown” means the Crown in Right of Tasmania;

“Department” means the Tasmanian Department named on the cover page of this RFT;

“Department’s Requirements” means the goods and services described in the Specification;

“Electronic Tender Box” means the electronic website for lodging electronic Tenders, on the Tasmanian Government’s Integrated Purchasing Web Site at <>;

“Electronic Tender System” means the Tasmanian Government electronic tender system, on the Tasmanian Government’s Integrated Purchasing Web Site at <> for the downloading and submission of tender documentation electronically;

“GST” means any tax imposed under any GST law and includes GST within the meaning of the GST Act;

“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cwlth) as amended;

“GST Law” means the GST law as defined in the GST Act and includes any Act of the Parliament of Australia that imposes or deals with GST;

“Person” includes a natural person, a corporation, a partnership, a board, a joint venture, an incorporated association, a government, a local government authority and an agency;

“Request for Tender” or “RFT” means this document inviting Tenderers to offer to deliver the Department’s Requirements by submitting a Tender as provided in this document;

“RFT Number” means the RFT number shown on the cover page of this RFT;

“Scheme” means a scheme in force under the Professional Standards Act 2005 (Tas) for limiting the occupational liability of members of an occupational association;

“Specification” means the Specification in Part “Three” of this RFT;

“System Failure” in relation to Electronic Tender System means an outage, fault or delay occurring for any reason, including, without limitation:

technical difficulties with the performance or operation of the Electronic Tender System or another person’s software, equipment or systems; or any outages, faults or delays with the Internet or other infrastructure involved in the transmitting of any document associated with this tender process;

“Tender Box” means the locked box at the address on the cover page of this RFT exclusively to receive responses to the RFT;

“Tender” means the documents constituting a Tenderer’s offer to deliver the Department’s Requirements under this RFT;

“Tender Description” means the Tender description shown on the cover page of this RFT;

“Tenderer” means a Person who offers to deliver the Department’s Requirements under this RFT;

Rights and obligations

Because the Department is part of the Crown, rights and obligations of the Department under this RFT are to be read and construed as rights and obligations of the Crown.

ReservationsNo warranty as to accuracy

The Department does not warrant the accuracy of the content of the RFT and the Department is not liable for any omission from the RFT.

Right to vary0. The Department may from time to time, by issuing written addenda to the RFT, extend the Closing Time or otherwise add to or vary the RFT.Copies of all addenda to the RFT will be sent to each person who has been issued with, or downloaded, the RFT, to the person’s contact address provided to the Department.All addenda to the RFT become part of the RFT.Where an addendum has been issued, the Tenderer must include with their Tender an acknowledgement that the addendum has been received and accounted for in the Tender.Indicative quantities only

Quantities stated in the RFT are indicative and for tendering purposes only unless specifically stated otherwise. Where quantities are indicative, the Department will be liable to accept only the quantities ordered, subject to contract.

Rights to cease or suspend

The Department may discontinue or suspend the RFT process.

No obligation to enter into any binding contract

The RFT is not to be construed as making any express or implied representation, undertaking or commitment by the Department that it will enter into a binding contract with any Person to supply the Department’s Requirements.

Right to reject

The Department may reject a Tender which does not comply with the terms of the RFT.

Right to accept all or part of a Tender

The Department may accept all or part of a Tender at the price or prices tendered unless the Tender states specifically to the contrary.

No obligation to accept any Tender

The Department is not obliged to accept the lowest priced or any other Tender.

No representation is to be binding

No representation made by or on behalf of the Crown about the Tender or the RFT (or their subject matter) binds the Crown unless it is in writing and is incorporated into the Conditions of Contract or its annexures.

Incomplete or illegible Electronic Lodgement

If a Tender lodged using the Electronic Tender System cannot be read, or is corrupted, illegible, inadequate or incomplete because of encryption, transmission, storage or decryption, so that it is impossible to determine whether the essential requirements of the RFT have been met, the Department, in its sole and absolute discretion, may reject the Tender.

Unauthorised communication

The Tenderer must direct all communications through the Contact Officer unless he or she directs otherwise. Unauthorised communication with other Department staff may lead to disqualification of the Tender.

Confidentiality RFT remains property of the Department

The RFT remains the property of the Department and may be used only to prepare a Tender.

Use of RFT is restricted

Except for information available to the public generally (other than by breach of these Conditions), a person receiving the RFT must not publish, disclose or copy any of its content, except to prepare a Tender.

Tenderer must not disclose information

The Tenderer must keep confidential all information provided by the Crown, as part of, or in connection with, the RFT.

Tenders become property of the Department

All Tenders become the property of the Department, which may reproduce all or any part of a Tender for Tender evaluation.

Department’s right to use a Tender

Despite any confidentiality or intellectual property right of the Tenderer in the successful Tender that gives rise to a binding contract with the Crown:

the Department may reproduce all or any part of that Tender in a contract awarded to the Tenderer, without reference to the Tenderer; subject to paragraph (c) of this subclause, either party may publish all or any part of that Tender that is included in a contract, without reference to the other; andneither party may publish any part of that Tender that the Head of Agency has determined should be confidential, during the period determined by the Head of Agency.Confidentiality of Tender to be preserved

Subject to the previous subclause, the Crown and the Tenderer must hold the Tender in confidence, so far as the law allows, except if:

0. the information is available to the public generally, other than by breach of this obligation;0. a law requires a party to file, record or register something that includes information in the Tender;0. disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;it is necessary or advisable to make disclosure to a taxation or fiscal authority; it is necessary to provide the information in the Tender in answer to a question asked of a Minister in the Parliament, or otherwise to comply with a Minister’s obligations to Parliament; orit is disclosed confidentially to a party’s professional advisers:to get professional advice about this tender process; or otherwise to consult such professional advisers.Content and format of TenderContent of Tender

A Tender must include all the information requested in the Specification and in other parts of the RFT.

Mandatory requirements

All items, features and functions specified in the RFT are mandatory requirements unless expressly stated otherwise. If a Tender does not comply with a mandatory requirement, it may still be considered by the Department, but the Department, in its sole and absolute discretion, may reject it under clause 3.6.

Format of Tender

The Tenderer must submit the Tender under cover of the Tender Form provided in Part “Five” of this RFT. The Tender Form must be completely filled in, and be accompanied by any other supplemental documents necessary to make the Tender complete. A Tenderer may reproduce the Tender Form in an expanded format to provide additional space for response.

Unnecessary responses

Unnecessarily elaborate responses or other presentations beyond what is sufficient to present a complete and effective proposal are neither required nor desired. Elaborate artwork and bindings, expensive visual and other presentation aids are not necessary.

PriceCurrency

All Monetary amounts are to be expressed in Australian Dollars.

GST exclusive

The Tenderer must quote all prices excluding GST. The Conditions of Contract allows for the payment of GST (clause 33).

Australian Business Number (ABN)

The Tenderer must either provide its Australian Business Number (ABN)or state why the Tenderer does not have an ABN. If the Tenderer does not register or disclose an ABN, then PAYG Withholding Tax may apply and the Department is required by law to deduct the relevant amount from each contract payment and to remit that amount to the Australian Taxation Office.

ComplianceImplied compliance

The Tenderer will be taken to agree with all the Conditions of Tender, Specification and the Conditions of Contract, unless the Tender states otherwise.

Non-compliance

If a Tender does not fully comply with the Conditions of Tender, the Specification and Conditions of Contract, the Tenderer must include a statement in the Tender specifying each condition or requirement with which the Tenderer does not agree or comply and indicating, for each condition or requirement, whether the offer:

Partially Complies

(This means:

-If a clause imposes a contractual condition, that the condition can only be met subject to certain qualifications. Those qualifications must be stated in full; and

-If a clause specifies a characteristic or performance standard, that the condition can only be met subject to certain conditions. If this is the case, and the Tenderer is prepared to make good on the condition, characteristic or performance standard, the Tenderer must state or describe how the non-compliance is to be made good.)

Does Not Comply

(This means:

-That the offer does not meet the complete contractual condition, or characteristic or performance standard of the clause. Full details of the non-compliance must be stated.)

OR IS

Alternative

(This means that the goods or services either:

0. do not require the feature; or 0. fully comply in a manner different from that described.

In either case a full explanation must be provided.)

Prominence to statements of non-compliance is required

The Tenderer must give prominence to statements of non-compliance (as described in clause 9.2) - it is not sufficient if the statement appears only as part of an attachment to the Tender, or is included in a general statement of the Tenderer's usual operating conditions.

Alternative TenderIdentification

The Tenderer may submit an alternative proposal if it is clearly identified as an “Alternative Tender” wherever it fails to comply with the specified requirements.

Supplementary material to be included

A Tenderer who submits a Tender which meets the Department’s Requirements in an alternative and practical manner, taking into account the totality of the requirements, must include any supplementary material and associated prices, which demonstrates, in detail, that the alternative will fully achieve all the requirements.

Novel and innovative offers are encouraged

Tenderers are encouraged to offer options or solutions that, in a novel or innovative way, contribute to the Department’s ability to carry out its business in a more cost-effective manner. These may relate to the functional, performance and technical aspects of the requirements or to opportunities for more advantageous commercial arrangements.

No obligation to consider Alternative Proposal

The Department reserves the right either to consider Alternative Tenders on their merits or not to consider them further.

Preparation of Tenders

The Department will neither be responsible for, nor pay for, any expense or loss incurred by a Tenderer for:

0. preparing or lodging a Tender; or0. providing additional information or clarification during the evaluation of a Tender.Validity

A Tender constitutes an irrevocable, unalterable offer by the Tenderer to the Crown which must remain valid and open to be accepted for 90 days from the Closing Time of the RFT and may be extended by written agreement.

Non-electronic lodgement of a TenderMethod of lodgement

A Tenderer who elects not to lodge a Tender using the Electronic Tender System, must lodge the Tender as follows.

The original Tender, marked accordingly, [Note for Drafters: Insert if required “plus x copies”], [Note for Drafters: Insert if required “plus a copy on disk or CD”], must be placed in an envelope clearly marked with the RFT Number, Closing Time and Tenderer’s name, and be lodged at the address shown on the cover page by either:

0. placing it in the Tender Box; or0. posting it so the Department receives it,

before the Closing Time.

Facsimile

A Tender submitted by facsimile before the Closing Time will be considered only if an identical tender, complying with this RFT, is dispatched on the same day and is delivered to either the Tender Box (by hand), or the Department (by mail), within two Business Days after the Closing Time.

Implied agreement

By lodging a Tender in accordance with clauses 13.1 and 13.2 and in consideration of the Department starting to evaluate the Tender, the Tenderer agrees to be bound by these Conditions of Tender and in particular, clauses 3, 4, 5, 11, 12, 13, 18 and 19.

Electronic lodgement of a TenderMethod of lodgement

A Tenderer who elects to lodge a Tender using the Electronic Tender System must lodge the Tender in the Electronic Tender Box using the Electronic Tender System before the Closing Time and following the electronic lodgement procedures detailed in these Conditions of Tender.

Format

A Tenderer lodging a Tender using the Electronic Tender System must lodge the Tender using a format and the naming conventions in clause 15. Failure to comply with the format or the naming conventions may result in the Tender not uploading successfully or being rejected.

File size

A single submission of combined file sizes for a Tender lodged using the Electronic Tender System must not exceed 500 megabytes (500Mb) with each individual file to be less than 100 megabytes (100Mb). If a Tender exceeds the specified file size limit, the Tenderer must either:

0. lodge the Tender in separate parts not exceeding the file size limit, each part to be clearly identified as part of the Tender; or0. lodge the Tender as a compressed (zip) file not exceeding the file size limit; or0. lodge the Tender in accordance with clause 13.Time for completion of lodgement

The relevant page for the Tender on the Electronic Tender System will not be accessible after the Closing Time. Lodging a Tender must, therefore, be completed by that time.

User problems

If a Tenderer has problems using the Electronic Tender System, the Tenderer must immediately notify the Contact Officer of this before the Closing Time. If the Tender is not successfully lodged using the Electronic Tender System by the Closing Time then the Tender will be a Late Tender and will be accepted, if at all, only under clause 16.

Meaning of Closing Time

A Tenderer using the Electronic Tender System agrees that, to ascertain the Closing Time, the date and time appearing on the Electronic Tender System website is the conclusive date and time for the lodgement. If that date and time is inconsistent with the date and time of the Tenderer’s system, then the former prevails.

No warranty by Department of unauthorised Internet access

A Tenderer using the Electronic Tender System acknowledges that:

0. the Department does not warrant that unauthorised access to information and data transmitted via the Internet will not occur. A Tenderer releases the Department and its staff from, and indemnifies them against all claims that arise because unauthorised access occurs during the transmission of information via the Internet; and0. if the Electronic Tender System suffers System Failure, the Department does not warrant that it will be possible to successfully upload (i.e. lodge) a Tender into the Electronic Tender Box.Waiver of liability for loss or damage

Lodgement of a Tender, using the Electronic Tender System, is at the Tenderer’s sole risk.

Viruses, worms and disabling features

A Tenderer lodging a Tender using the Electronic Tender System acknowledges that it has taken reasonable steps to ensure that the Tender is free of viruses, worms or other disabling features which may affect Electronic Tender System. The Department at its sole and absolute discretion may reject a Tender found to contain a virus, worm or other disabling feature.

Implied agreement

By lodging a Tender using the Electronic Tender System and in consideration of the Department starting to evaluate the Tender, the Tenderer agrees to be bound by the Conditions of Tender and in particular, clauses 3, 4, 5, 11, 12, 14, 18 and 19.

Format and naming conventions for electronic lodgementsFormat

A Tender lodged electronically must be submitted in one of the following formats:

· Rich Text Format (RTF);

· Adobe Acrobat - Portable Document Format (PDF);

· Microsoft Word (DOC);

· Microsoft Excel (XLS); or

· Image Files (JPG, GIFF, TIFF).

It is recommended that the Tender file/s be compressed into a zip format.

Conventions

A Tender lodged electronically must comply with the following naming conventions:

· File names must be in English;

· File names that contain a space, must have an underscore in the space’s place (“ _ “)

· File names must contain the RFT Number, the name of the document and the Tenderer’s name.

(For example: “A123_Tender_Submission_ABC_Company.doc” would be a suitable file name.)

Late TendersDepartment may not accept

Late Tenders will not be accepted unless the Contact Officer is satisfied that:

0. circumstances beyond the Tenderer’s control caused the lateness; and0. accepting a late Tender will not compromise the integrity of the tendering process or provide an unfair advantage to the Tenderer lodging the late Tender.Return of late Tenders

A late Tender that is not accepted will be marked on the envelope with the time and date of receipt, and be returned unopened to the Tenderer, if sufficient address details are available.

Evaluation of TendersEvaluation criteria

The evaluation process will be undertaken against the following evaluation criteria and weightings:

[Note for drafters: Refer to Treasurer's Instructions and DTF Procurement Better Practice Guidelines.]

·

Additional clarification

During the evaluation process, the Tenderer may be required to provide clarification of its Tender.

Right to negotiateVariation of Tender

During the evaluation process, the Department may negotiate with any Tenderer to vary their Tender.

Department may negotiate with several Tenderers

The Department reserves the right to negotiate with several Tenderers to settle the commercial terms to form a contract.

Formation of contractFormal agreement required

The successful Tenderer must sign a formal agreement containing the terms in the Conditions of Contract supplemented by relevant information, requirements or variations:

0. contained in the Specification;0. contained in the successful Tender;0. arising during the Tender evaluation; and0. arising out of negotiations after the Tender evaluation.Exchange of signed counterparts required

Subject to clause 13.3 and 14.11, no contractual relationship or other obligation arises between the Department and a Tenderer, for the supply of the Department’s Requirements, until the Department and the successful Tenderer formally exchange signed counterparts of the Conditions of Contract. This clause applies despite any oral or written advice to a Tenderer that their Tender is successful or has been, or will be, accepted.

Government procurement policies

The Tasmanian Government has purchasing policies that form part of these Conditions of Tender.

Tasmanian and Australian industry development

The Tasmanian Government is committed to enhancing opportunities for Tasmanian industry development.

Australia and New Zealand Government Procurement Agreement

The Tasmanian Government is a party to the Australia and New Zealand Government Procurement Agreement (“ANZGPA”). It is therefore committed to the application of the ANZGPA principles which ensure that Australian and New Zealand suppliers are given equal consideration and opportunities to supply goods and services to Commonwealth, State and Territory Governments.

Australia-United States Free Trade Agreement

The Tasmanian Government is a participant in the Government Procurement Chapter of the Australia-United States Free Trade Agreement (AUSFTA). It is therefore committed to the application of the AUSFTA principles which ensure that United States suppliers are treated on a basis which is no less favourable than the most favourable treatment provided to suppliers of goods and services from Tasmania, Australia or New Zealand.

Intentionally not usedDumped Goods

Tenderers are alerted to the following compulsory Tasmanian Government procurement policy which will be included in the formal contract to deliver the Department’s Requirements.

“Dumped Goods, that is goods from overseas that are imported into Australia at less than their normal value, causing or threatening to cause material injury to an Australian industry production like goods, or materially hindering the establishment of such an industry, are not acceptable.

Where it is reasonably suspected that Dumped Goods are being supplied, the Agreement will be suspended to enable the suspicion to be confirmed or dismissed under the Commonwealth Customs legislation. Any costs or losses incurred by the Crown as a result of any suspension under this clause shall be borne and paid for by the Contractor.

Where the goods are subsequently determined by the Commonwealth Minister for Customs as Dumped Goods the Agreement will be terminated. Any consequential costs or losses of the Contractor shall be borne and paid for by the Contractor. In addition, any extra costs incurred by the Crown will constitute a debt recoverable from the Contractor.”

Crown policy on Confidentiality Provisions in Government contracts0. In this clause:

accountable authority has the same meaning as in the Financial Management Act 2016 (Tas).

Confidentiality Provision means a provision that, if included in a contract, would restrict or prohibit the capacity of any party to that contract to lawfully disclose any term of, or other information in or concerning, the contents of, that contract.

TI C-1 means Treasurer's Instruction C-1 issued under the Financial Management Act 2016 (Tas).

Except in accordance with TI-C1, contracts are not to include any Confidentiality Provision. Where inclusion of a Confidentiality Provision is approved in accordance with TI C-1, the terms of the contract will be drafted to give effect to the decision of the accountable authority, including any decision on any limit on the period of confidentiality.The restriction on Confidentiality Provisions does not apply to:(i) pre-contract information which passes between the parties in order to enable the contract to be performed; or(ii) the services or products that flow from the performance of the contract, including information that is brought into existence pursuant to the contract. Subject to any Confidentiality Provision included in a contract, a party to a contract may publish all or any part of the contract without reference to another party.

.

DebriefingRequest for debriefing

Unsuccessful Tenderers are encouraged to request a debriefing from the Department to discuss the reasons for their non-selection. A Tenderer who would like a debriefing should contact the Contact Officer.

Timing for debriefing

If requested to do so, the Department will provide a debriefing for an unsuccessful Tenderer after either:

0. a contract has been exchanged for the supply of the Department’s Requirements; or0. the Department decides not to award a contract for the supply of the Department’s Requirements.Complaints process

A Tenderer may lodge a complaint if the Tenderer believes the Department’s tender process has not complied with the Tasmanian Government’s procurement policies. Further information on the formal complaints process is available from the Tasmanian Government website at www.purchasing.tas.gov.au, or may be obtained in hard copy from the Contact Officer.

Zero tolerance towards violence against women0. Violence against women is defined by the United Nations as “any act of gender based violence that results in or is likely to result in physical, sexual or psychological harm or suffering to women”.The Crown upholds a zero tolerance policy towards violence against any person in the workplace. The Tenderer acknowledges and undertakes to uphold a zero tolerance policy towards violence against any person in the workplace in its interaction with employees, agents and subcontractors of the Crown and in delivery of the Department’s Requirements.The Tenderer must and will ensure that its employees, agents and subcontractors will at all times in delivery of the Department’s Requirements act in a manner that is non-threatening, courteous and respectful.If the Crown reasonably believes that any of the Tenderer’s employees, agents or subcontractors are failing to comply with the behavioural standards specified in this clause then the Crown may in its absolute discretion:prohibit access by the relevant employees, agents or subcontractors to the Crown’s premises; anddirect the Tenderer to withdraw the relevant employees, agents or subcontractors from providing the Department’s Requirements.Special conditionsProvisions about the Professional Standards Act 2005 (Tas)0. Conditions of appointment

The Department will only appoint, as successful Tenderer, a Tenderer who agrees to the following conditions, when relevant.

No Scheme in force

If no Scheme applies to the Tenderer, the Tenderer must waive all present and future rights, against the Crown, to claim any limitation of liability provided by a future Scheme in relation to future legal liability, claims or proceedings arising from, or attributable to, the Tenderer delivering the Department’s Requirements including a wrongful (including negligent) act or omission.

Scheme in force

If a Scheme applies to the Tenderer, the level of the Tenderer’s liability under the Contract will be limited in accordance with and subject to the Scheme.

Increase to maximum liability under Scheme

To the extent that the Scheme allows the Tenderer to apply for a higher maximum amount of liability than would otherwise apply to the Tenderer under the Scheme, the Tenderer must ensure that the limit of the Tenderer’s liability under the Scheme is not less than the level described in the Specification.

Other special conditions

Other special conditions applying to this RFT may be attached as an Annexure to the Conditions of Tender or the Specification.

Conditions of Tender Page 15Standard Request for Tender for Goods and Services

Tender No. [Insert tender number]4851-17 | Version No. 15 – July 2019

Part ThreeSpecification

[Insert Tender description]RFT Number: [Insert RFT No.]

[Note for Drafters: Drafters must complete this section.]

A list of headings and explanatory notes is included to assist you to prepare the Specification. Whether you choose to use all or any of the following headings, or whether you should use additional headings, will depend on what will give the Tenderers a clear, logical and complete description of the requirements.

Drafters:

must ensure that their Specification addresses the matters described in section 4.2 of these explanatory notes; and

in completing this part of their Specification, should refer to Special Condition 23.1 (refer Part Two of this RFT) and the additional guide note attached to clause 42 of the Conditions of Contract (refer Part Four of this RFT).

The Specification should only be as complex as the requirement demands]

Table of Contents

A table of contents may be useful for long and/or complex specifications.

1. Introduction

An introduction “sets the scene” by providing a brief explanation of the requirement and its context, for example, the application, purpose or function of the required product or service.

Scope

If the detailed requirement is lengthy or complex, this section may be used to summarise the extent and limitations of the requirement. A full description of each element must be included in the Statement of Requirements (described below).

The scope may include (but not be limited to):

· a brief description of the requirement;

· the application, purpose or function of the product required;

· anticipated demand;

· the period of the contract;

· whether the Tenderer will be required to supply, install and/or commission the requirement;

· whether the Tenderer will be required to provide training and documentation;

· service or maintenance requirements;

· the place of delivery, installation and/or commissioning; and

· anything that the Tenderer is not required to do or provide (that might otherwise normally be assumed to be part of the requirement) – for example the Department may supply certain equipment, software etc.

Background

Potential Tenderers may gain a better understanding of the requirement if they are provided with information on how and why the requirement arose.

Background information may include:

· the origin of the requirement;

· a fuller explanation of the context of the requirement;

· a description of the current system or equipment that is being replaced;

· how the requirement is related to earlier acquisitions or future requirements; and

· what other potential solutions have been considered and why they were rejected.

Statement of RequirementsGeneral

This section should describe the requirement in detail. Detailed requirements are best defined by describing functional and performance characteristics as these allow Tenderers to offer alternative or innovative solutions. Technical characteristics may also need to be defined where functional and performance characteristics alone are insufficient to adequately define the requirement.

Where applicable, detailed requirements may include:

· a list of outputs (products / services) to be delivered;

· information on the application or purpose of the product;

· an outline of the functional characteristics required to ensure the desired outcome;

· required performance levels (quantity, quality, timing);

· quality assurance requirements – used to assess the Tenderer’s compliance with specified quality requirements.

· performance measures and targets – used to assess the extent that the requirement has been delivered and whether the specified performance levels, including cost, have been met. These measures and targets are linked to payments and continuation of the contract;

· acceptance testing requirements - including the tests required, what proof is required that the product has passed those tests (eg. certificates), who is responsible for developing the tests and who is responsible for conducting the tests. If tests are complex, they may be undertaken externally;

· technical characteristics – physical aspects (eg. dimensions / colour); material properties; detailed plans / designs / blueprints etc.;

· environmental constraints and limitations - if the environment in which the required product will operate places limits or constraints on the design, performance or operation of the product, this should be detailed. Environmental constraints include:

· the physical environment;

· storage conditions;

· the operating environment and the need for interchangeability or compatibility with existing equipment and systems;

· ergonomic requirements;

· personnel safety aspects;

· access to locations or staff;

· availability of energy and other services; and

· environmental considerations, for example, recycling, energyefficient and environmentallyfriendly constraints;

· security and confidentiality requirements – for example, confidentiality of personal and commercial information or safeguarding expensive equipment;

· whole-of-life costs (including servicing and maintenance requirements and possible future modifications and upgrades) – if a product will, or may, need to be maintained, modified or upgraded, you need to address issues of reliability, availability and maintainability in order to fully evaluate wholeoflife costs. You will need to provide information on possible future upgrades, when they may occur, and what additional or enhanced capability is, or may be, required. These issues need to be addressed regardless of whether maintenance, modifications and upgrades form part of the specification, are to be sought separately, or are to be undertaken by your Department;

· potential for trade-ins;

· training requirements - specify what training is required (for example in the installation, operation and/or maintenance of the product / or use of a service), the level of training required, number of sessions and venue. Tenderers may be asked to provide details of the experience and accreditation of the proposed training providers;

· contract management requirements - for example, reporting requirements (content, frequency, format);

· other documentation requirements, for example, manuals;

· installation and/or commissioning requirements;

· preservation and packaging requirements;

· a statement of responsibilities – clearly specifying the responsibilities of both the contractor and the contracting agency; and

· transition arrangements – both at the commencement and at the end of the contract.

Professional Standards Act 2005 (Tas)

The Professional Standards Act 2005 (Tas) provides for the limitation of liability of members of occupational associations in certain circumstances. Under Section 27 of the Act, a discretion may be conferred on a member to obtain an approval for a higher maximum amount of liability than would otherwise apply.

Drafters should therefore consider that if such a discretion exists whether an approval should be required. If it is to be required, the relevant higher amount must be added to the Specification prior to this Agreement being entered into.

For example: “To the extent that an applicable Scheme allows the Tenderer to apply for a higher maximum amount of liability than would otherwise apply to the Tenderer under the Scheme, the Tenderer must ensure that the limit of the Tenderer’s liability under the Scheme is not less than [$].

If the Department is unable to settle this requirement at the time the RFT is issued, it should reserve the right, if permitted by relevant Scheme, to require a higher level of liability once it has had the opportunity to review the Tenders. If the Department then determines that the Scheme allows an application for a higher maximum level of liability and an increase to the maximum level of liability would be appropriate, a letter of clarification, detailing the requirement, should be issued to all Tenderers.

Documents

The Specification may refer to other documents. These documents form part of the Specification. Each of these documents should be listed and information provided on where they can be readily found (for example, on a website) or copies attached. If only part of a document is relevant, refer to that part only. Examples include:

· Standards - for example, Australian or International Standards, the Tasmanian Government Web Publishing Standards etc.;

· Codes of Practice;

· Legislation; and

· other Government directives.

Implementation Timetable

The implementation timetable should include all major milestones, for example, the contract commencement and completion dates, dates when deliverables are due etc.

Information to be provided by the Tenderer

This section must be considered and where appropriate, completed by Drafters. This section should provide a checklist of the information to be provided by the Tenderer (specifying required format and quantity), for example:

· Completed Tender Form (including Pricing Schedule)

· References

· Referee contact details

· Details of any limit of the Tenderer’s occupational liability under any relevant Scheme in force under the Professional Standards Act 2005 (Tas) together with a copy of the relevant Scheme

· Annual Reports

· Financial Statements

· Quality Assurance Certificates

· Drawings

· Manuals

Glossary

A glossary should be used to define terms that appear in the specification and that may not be understood by Tenderers. This may include symbols, abbreviations, technical terms and acronyms.

Attachments

List all the attachments that are referred to elsewhere in the specification.

Specification Page 6Standard Request for Tender for Goods and Services

Tender No. [Insert tender number]4851-17 | Version No. 15 – July 2019

Part FourConditions of Contract

Details

Parties

Crown, Contractor

Crown

Name

The Crown in Right of Tasmania represented by the Department of      (“Crown”)

Address

     

Telephone

     

Fax

     

Attention

     

Contractor

Name

      (“Contractor”)

Incorporated in

     

ACN/ABN

     

Address

     

Telephone

     

Fax

     

Attention

     

Recitals

AThe Crown has accepted a tender from the Contractor for the supply of Goods and Services (defined in clause 1) for the Department of [ ] ("Department").

BIt is a condition of the tender, made by the Contractor and accepted by the Crown, that the parties will enter into this Agreement.

Date of agreement

See Signing page

Conditions of ContractPage 1Standard Request for Tender for Goods and Services

Tender No. [Insert tender number]4851-17 | Version No. 15 – July 2019

Conditions of Contract

Tender No. [Insert tender number]

Page 16

Standard Request for Tender for Goods and Services

Version No. 3 January 2005

General Terms

1. Definitions and interpretationDefinitions

In this Agreement unless the contrary intention is expressed:

"Acceptance" means the notice issued by the Department to the Contractor under clause 4.2 (Conformance with Specification or sample) or which is taken to have occurred under that clause;

"Agreement" means this Agreement including all Schedules and Annexures;

"Asbestos" means asbestos as defined by the Work Health and Safety Regulations 2012 (Tas);

"Business Day" means any day on which authorised deposit-taking institutions, as defined in the Banking Act 1959 (Cwlth), are open for business in [Note to Drafters: Add Hobart, Launceston or Burnie, whichever is the most appropriate];

"Contract Price" means the sum described in Schedule 2;

"Contract Material" means all material brought, or required to be brought, into existence as part of, or for the purposes of providing the Services including, but not limited to, documents, information and data stored by any means;

"Contractor", where the context admits, includes the Contractor’s employees, authorised sub-contractors and agents;

"Crown" includes the Crown’s employees, authorised sub-contractors and agents;

"Crown Material" means any material provided by or on behalf of the Crown to the Contractor for the purpose of this Agreement including, but not limited to, documents, equipment, information and data stored by any means;

"Date for Delivery" is the date fixed by reference to Schedule 1 by which the Contractor must make Delivery of the Goods and Services;

"Defect" means a defect, error or malfunction in the Goods such that the whole or part of the Goods does not comply with, and cannot be used in accordance with, the Specification and the warranty provided in clause 8 (Contractor’s warranties and Intellectual Property);

"Delegate" means the person for the time being holding, occupying or performing the duties of the office of [ ] of the Department;

"Delivery" means the delivery of the Goods and Services as described in clause 3.2 (Delivery to Delivery Point);

"Delivery Point" is the place for delivery of Goods and Services set out in Schedule 1;

"Department" means the Tasmanian Government Department referred to above;

"Fee Proposal" means a written proposal described in clause 22.3(b) (Change to scope of the Specification);

"Goods" means the goods described in Schedule 1;

"Insurance" means all policies of insurance required to be taken out or entered into under clause 15 (Insurance);

"Intellectual Property" means all copyright, patents, registered and unregistered trademarks, registered designs, trade secrets and know-how and all other intellectual property rights resulting from intellectual activity;

"Latent Defect" means a defect or deficiency in design, materials or workmanship which could not have been discovered by the Department:

0. using the acceptance tests specified in this Agreement; or0. by reasonable inspection before the acceptance of the Goods,

and which has an adverse effect on the functionality, performance or capability of the Goods, or any part of them, so as to require rectification or modification;

“Legislative Requirements” means Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth or the State applicable to the supply of the Goods or Services;

“Moral Rights” means:

0. a right of attribution of authorship;0. a right not to have authorship falsely attributed; or0. a right of integrity of authorship;

granted to creators under the Copyright Act 1968 (Cwlth);

"Request for Tender" means the document inviting the Contractor to offer to supply the Goods and Services to the Crown, a copy of which, excluding only the Conditions of Contract, is annexed and marked “Annexure A”;

"Scheme" means a scheme in force under the Professional Standards Act 2005 (Tas) for limiting the occupational liability of members of an occupational association;

"Services" means the services specified in Schedule 1 of this Agreement;

"Specification" means the statement of the Department specifying and describing the Goods and Services set out in Schedule 1;

"Specified Personnel" means the people described as “Specified Personnel” in Schedule 2;

"Standards" means all international and Australian standards applicable to the Goods and/or the Services;

"Tender" means:

0. the documents constituting an offer to supply the Goods and Services to the Crown under the Request for Tender, a copy of which is annexed and marked “Annexure B”; and 0. any supplemental document of clarification or variation of the Tender agreed to in writing by the parties;

"Term" means the term of this Agreement as fixed or extended under clause 2;

"Variation Notice" means a notice referred to in clause 22.1 (Crown may give variation notice);

"Warranty Period" means the period stated in Schedule 1.

Interpretation

In this Agreement, unless the contrary intention is expressed:

0. a reference to this Agreement includes its schedules, appendices, annexures and attachments, and any variation or replacement of any of it;(ah) a reference to a statute, ordinance, code or other legislative instrument includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;(ai) the singular includes the plural and conversely;a reference to a gender includes reference to each other gender;(aj) a reference to a person includes:(i) an individual, a firm, a body corporate, an unincorporated association or a statutory or responsible authority or other authority, as constituted from time to time; and(ii) the person’s executors, administrators, successors and permitted assigns; (ak) an agreement, representation or warranty by, or for, two or more persons binds, or is for their benefit, together and separately;(al) a covenant forbidding a person from doing something, also forbids that person from authorising or allowing another person to do it;(am) a reference to anything (including an amount) is a reference to all or any part of it, and a reference to a group of persons is a reference to any one or more of them;(an) a reference to a clause, paragraph, schedule, annexure or appendix, is a reference to a clause, paragraph, schedule, annexure or appendix in or to it;a reference to “writing” includes a reference to printing, typing, lithography, photography and other methods of representing or reproducing words, figures, diagrams and symbols in a tangible and visible form;(ao) a reference to a day is to be interpreted as the period of time starting at midnight and ending twenty-four (24) hours later;(ap) a reference to a month or a year means a calendar month or a calendar year respectively;(aq) words or phrases derived from a defined word have a corresponding meaning to the defined word;(ar) a term of inclusion is not to be interpreted to be a term of limitation;(as) all references to monetary sums are to Australian currency;(at) a reference to the payment of money within a specified time, means the full crediting and clearance of any cheque or electronic transfer into the payee’s account within that time;(au) it operates under Tasmanian time;(av) if the day on or by which an act, matter or thing is to be done under it is not a Business Day, then that act, matter or thing must be done no later than the next Business Day; (aw) an uncertainty or ambiguity in the meaning of a provision is not to be interpreted against a party only because that party prepared the provision; and(ax) headings are included for convenience only, do not form part of it, and are not to be used in its interpretation.Term of AgreementTerm

The term of this Agreement is to commence (or has commenced ) on the [     ] day of [     ] 20[     ] and will continue, unless earlier terminated, until Delivery is complete and the Warranty Period has expired.

Early commencement

If the supply of the Goods or Services has commenced before the date of this Agreement, then the Term will be taken to have commenced from the earlier date and all dealings between the parties as from that earlier date relating to the supply of the Goods or Services will be taken to have been carried out on the terms of this Agreement.

Supply and delivery of the Goods and ServicesSupply of the Goods and Services

The Contractor must:

0. supply only Goods which comply in all respects with:51. the requirements of the Specification;(i) all Legislative Requirements; and(ii) all Standards and0. complete the delivery of the Services:52. with the due care and skill, and to a standard reasonably to be expected of a person both competent and experienced in providing services similar to the Services;52. in accordance with all Legislative Requirements; and52. in accordance with all Standards.

Delivery to Delivery Point

The Contractor must, at its own expense, deliver the Goods and Services to the Delivery Point by the Date for Delivery, or such other date as the Delegate agrees to in writing. Delivery is not complete until it is acknowledged in writing by the Delegate.

Unloading of Goods

Delivery includes the unloading of the Goods and is the responsibility of the Contractor.

Time for Delivery

Time is essential in relation to Delivery.

Notice of Delivery

If requested by the Delegate, the Contractor must give reasonable notice of Delivery.

Legislative Requirements

The Contractor must comply with all Legislative Requirements concerning Delivery.

Personal performance

The Services must be personally provided either by the Specified Personnel or by another person or persons approved of in writing by the Delegate.

Acceptance or rejection of Goods and ServicesAssessment of Goods and Services

The Department may assess the Goods and Services to determine whether they comply with the Specification and this Agreement. This assessment may be by the means specified in Schedule 1 or by other appropriate means, including selection of samples for testing and analysis. If the Goods have been sold by sample, then the Goods must reasonably conform with the sample. The Department may make reasonable further assessment, at its own cost, but where the Goods or Services fail those further assessments, the Contractor must pay the cost of the assessments as incurred by the Department.

Conformance with Specification or sample

If the Goods and Services conform with the Specification or sample, then the Department must promptly accept the Goods and Services by written notice to the Contractor. If the Goods and Services do not fully conform with the Specification or the sample, then the Department may reject all or part of the Goods and Services:

0. within the time after Delivery specified in Schedule 1; or0. within 20 Business Days if no time is specified,

by written notice to the Contractor giving reasons for the rejection. If the Department does not accept or reject the Goods and Services within 20 Business Days of Delivery, then the Goods and Services are taken to be accepted at the expiration of that period.

Removal of rejected Goods

The Contractor, at its cost, must collect and remove all rejected Goods from wherever they are held, as soon as practicable or the Department may either:

0. return the Goods to the Contractor; or 0. store them,

at the Contractor’s expense.

Refund of payments for rejected Goods

If any money has been paid by the Crown to the Contractor for Goods or Services which are subsequently rejected under this Agreement (including Goods which have been accepted but which are later found to have a Latent Defect), then the Crown will be entitled to claim, by written notice, the immediate refund of that money, which will be a debt due to the Crown. The Crown may also recover that money by set-off against any other money it owes to the Contractor.

Discovery of Latent Defect

Despite anything to the contrary in this Agreement, if the Department discovers a Latent Defect in the Goods, then within 20 Business Days of discovering that defect, the Department may reject the Goods by written notice to the Contractor giving reasons for the rejection.

Ownership and riskOwnership

Ownership and property in the Goods, free of all legal and equitable adverse interests, passes to the Crown upon Acceptance.

Risk

Risk in the Goods and Contract Materials passes to the Crown when Delivery is complete under clause 3.2 (Delivery to Delivery Point).

Warranty periodRepair and replacement of defective Goods

Without limiting any other warranty implied by statute or generally at law:

0. if a Defect appears in the Goods within the Warranty Period, then the Contractor is responsible for its repair or replacement to ensure the Goods fully comply with the Specification and the warranty provided in clause 8 (Contractor’s warranties and Intellectual Property); and0. if the Specification so provides, then the Contractor must obtain the benefit of any manufacturer’s warranty for the Crown.Enforcement of manufacturer’s warranty

The Contractor, at its own cost, will act as the agent of the Crown to enforce any manufacturer’s warranty referred to in clause 6.1. The Contractor will carry out its agency responsibilities in a timely manner.

Contract PriceContract Price

The Department must pay the Contract Price to the Contractor for Goods and Services delivered and accepted by the Department under this Agreement.

Periodical payments

If Schedule 2 provides that the Contractor is to be paid by any sort of periodical payments, then the Crown is entitled to defer any of those payments until the supply of the Goods and Services to which the payment relates has been completed by the Contractor, to the satisfaction of the Crown.

Time for payment

Unless this Agreement otherwise permits, the Crown must make payment within 20 Business Days of submission to the Delegate of a duly rendered invoice for all or part of the Contract Price:

0. in a form approved of by the Delegate; and 0. containing the information required by the Delegate.Fee Variation

[Note to Drafters: Clause 7.4 should only be included if the Contractor’s tender has been accepted on the basis that the contract fee is variable]

The Contractor may vary the contract fee in accordance with the formula described in Schedule 2. The varied fee takes effect as the new contract fee on the date the Delegate receives written notice of the variation.

Contractor’s warranties and Intellectual PropertyWarranties

The Contractor warrants that:

0. the Contractor has the right to sell and transfer title to the Goods to the Crown;0. the Goods:(except as otherwise provided in the Specification) are new when delivered to the Department;are fit for the purpose stated in the Specification or elsewhere in the Agreement, or if no purpose is stated, the purpose for which the Goods would ordinarily be used;conform to the description, model number and the sample (if any) provided by the Contractor;conform with the requirements of this Agreement (including the Specification);are free from defects (including defects in installation);are of good merchantable quality and conform to all legally applicable standards;where relevant, have been manufactured, constructed or assembled in the factory disclosed by the Contractor as the place of manufacture, construction or assembly of the Goods; anddo not contain Asbestos.all representations made by the Contractor in, or in connection with, the Tender were, and remain, accurate;it has in place the quality assurance arrangements set out in Schedule 1;it is entitled to use any Intellectual Property which it uses in connection with Goods supplied under this Agreement; andthe Department’s use of the Goods will not breach any third party’s Intellectual Property or other rights.Licence to use Intellectual Property

The Contractor grants to the Crown, for no additional charge, a non-exclusive perpetual licence to use all Intellectual Property rights in relation to the Goods supplied under this Agreement.

Contract MaterialTitle to, and property in, Contract Material

The title to, and property (including all Intellectual Property) in, all Contract Material vests in the Crown upon its creation, but that material will remain readily available to the Contractor to the extent necessary to enable the Contractor to perform its duties under this Agreement.

Contractor must return Contract Material

On the expiration or earlier termination of this Agreement the Contractor must immediately deliver all Contract Material in its possession or control to the Delegate and if necessary, transfer any Intellectual Property forming part of that material to the Crown.

Use of Contract Material restricted

The Contractor must ensure that the Contract Material is used, copied, supplied or reproduced only for the purposes of this Agreement.

Pre-existing Intellectual Property rights

The Crown agrees that any pre-existing Intellectual Property rights owned by the Contractor in material used to produce Contract Material is not affected by this Agreement.

No third party rights in Contract Material

The Contractor warrants that the Crown’s use of the Contract Material will not infringe the Intellectual Property or other rights of any third party.

Moral Rights consent from Consultant

The Contractor unconditionally consents to any infringement of its Moral Rights resulting from any use, by or on behalf of the Crown, of the Contract Material described in Schedule 1 for the purposes of:

0. the project described in Schedule 1; or0. any other project undertaken by the Crown.Moral Rights consent from third party authors

To the extent that any third party has Moral Rights, the Contractor warrants that:

0. for pre-existing materials that form part of the Contract Material described in Schedule 1, it has obtained; and0. for new materials coming into existence for the purpose of this Agreement and that form part of the Contract Material described in Schedule 1, it will obtain before or immediately on creation,

the third party’s unconditional consent to any use of those Contract Materials by or on behalf of the Crown for the purposes of:

the project described in Schedule 1; orany other project undertaken by the Crown.Supply of documentary evidence

If the Delegate so requests, the Contractor must promptly provide to the Crown all Moral Rights consents required by clause 9.7.

Crown MaterialCrown Material remains property of the Crown

Crown Material remains the property of the Crown and on the expiration or earlier termination of this Agreement the Contractor must immediately return all the Crown Material to the Delegate. The cost of delivery must be paid by the Contractor.

Third party rights in Crown Material

The Delegate must inform the Contractor of any Crown Material in which third parties hold Intellectual Property and any conditions or limitations attaching to the use of that Crown Material as a result of that Intellectual Property. The Contractor must use Crown Material only under the conditions and limitations to which it is subject.

Contractor must keep Crown Material safe

The Contractor is responsible for the safe keeping and maintenance of Crown Material.

Repair and replacement workRepair and replacement work

During the Warranty Period the Contractor will undertake all necessary repair, replacement or other work in respect of the Goods, in a timely and workmanlike manner, to ensure that the Goods conform to the standard described in clause 8.1 (Warranties). All repair or replacement work carried out, or supplied by, the Contractor:

0. is warranted by the Contractor to the same extent as the Goods, from completion of that repair work or replacement; and0. must be carried out at the expense of the Contractor.Continuing liability for Latent Defects

The Contractor’s liability to carry out repairs and replacement work under clause 11.1 extends beyond the Warranty Period and is a continuing liability for Latent Defects.

Failure to repair or replace

If the Contractor does not comply with clause 11.1 or 11.2 within a reasonable time after receipt of notice to do so, then the Department may have that work or replacement done at the cost of the Contractor, which cost will be a debt due and owing to the Crown.

Liaison and reporting

The Contractor must liaise with, and report to, the Delegate as reasonably required by the Delegate during the Term.

Waiver of rights of recovery from the Crown

The Contractor waives all present and future rights to claim against the Crown for:

0. personal injury to, or death of, the Contractor; or0. either or both loss of, or damage to, any of the Contractor's property; and0. financial loss to the Contractor;

arising from, or attributable to, the supply of the Goods or Services. This waiver does not operate to release the Crown from liability arising from, or attributable to, a wrongful (including negligent) act or omission of the Crown.

IndemnitiesContractor indemnifies Crown

The Contractor indemnifies the Crown against all present and future legal liability, claims or proceedings for:

0. personal injury to, or death of, a third party; or 0. either or both loss of, or damage to, property of a third party; andfinancial loss of a third party;

arising from, or attributable to, the supply or use of the Goods or Services to the extent that the injury, death, damage or loss is not caused by a wrongful (including negligent) act or omission of the Crown.

Nature of indemnities

The indemnities in clause 14.1:

0. are continuing obligations of the Contractor, separate and independent from any other obligations; and 0. survive the termination of this Agreement.InsuranceContractor to insure

The Contractor must hold, and keep current throughout the Term contracts of insurance with a reputable insurer lawfully carrying on insurance business in Australia, indemnifying:

0. the Contractor’s liability for loss or damage to the Goods which covers the Goods for their full value from time to time against loss or damage, including loss or damage in transit and, if the Agreement requires the Contractor to unload the Goods, also unloading. The policy must be maintained to cover the Goods until Delivery is complete;0. the Contractor’s liability for:personal injury to, or death of, a third party; and either or both loss of, or damage to, the property of a third party;

for at least $20,000,000 for each individual claim or series of claims arising out of a single occurrence, or for such other sum as the Delegate reasonably determines;

the Contractor’s liability for worker’s compensation; andthe Crown’s liability for:personal injury to, or death of, a third party; and either or both loss of, or damage to, the property of a third party;

for a sum not less than that stated in Schedule 1, and arising from the defective nature of the Goods and including loss or damage suffered by third parties as a result of using the Goods; and

the Contractor’s liability for professional negligence, for at least the sum stated in Schedule 1, for any one claim or series of claims, arising out of a single occurrence, and for the term described in clause 15.7 (Crown may insure).

The liability to be insured against under paragraphs (b) and (d) is liability arising from, or attributable to, the Contractor supplying the Goods and Services to the extent that the injury, death, damage or loss is caused by a wrongful (including negligent) act or omission of the Contractor or the Contractor’s employees or agents.

Period of insurance

The Contractor must maintain the insurances for the following periods:

0. the policy for loss or damage to Goods described in clause 15.1(a) must be maintained to cover the Goods until Delivery is complete;the public risk cover described in clause 15.1(b) and workers compensation insurance described in clause 15.1(c) must be maintained for the Term;the product liability insurance described in clause 15.1(d) must be maintained for at least six years from the Crown’s Acceptance of the Goods.Crown to be noted as principal

Insurance contracts required by clauses 15.1(b) and 15.1(d) must name the Crown in the Right of Tasmania as a principal for the purpose of indemnifying the Crown for any vicarious or other legal liability (if any) it may have in respect of any injury, death, damage or loss caused by a negligent act or omission of the Contractor.

Contractor to notify Delegate

The Contractor must notify the Delegate in writing as soon as practicable:

0. if an insurance contract referred to in clause 15.1 lapses, is cancelled or is materially altered; orif the Contractor claims, or becomes entitled to claim, under such an insurance contract for something related to delivering the Contracted Services.Evidence of insurance

The Contractor must give the Delegate evidence of:

0. the terms of; andpayment of the premium for;

each insurance contract taken out under clause 15.1,

before the Contractor starts to deliver the Goods and Services; andbefore each due date for renewal of each such insurance contract.Professional indemnity insurance

The Contractor must maintain the professional indemnity insurance required under clause 15.1 for six years after this Agreement expires or terminates, to provide indemnity against claims:

0. based on anything done, omitted or that happened, while the Goods and Services were being delivered; andmade during those six years.

This clause 15.6 survives any termination of this Agreement.

Crown may insure

If the Contractor fails to hold or renew each insurance contract required under clause 15.1, then without being obliged to do so, the Crown may:

0. take out or renew an insurance contract that the Contractor does not hold or has not renewed; and0. pay any unpaid premium.

The Contractor must pay to the Crown, on demand, all costs that the Crown incurs to do that, and interest on those costs, at the rate of ten per cent per year, from the date of outlay to the date of payment.

Contractor not to prejudice insurances

The Contractor must not do anything that may result in insurance under clause 15.1, or any part of it, becoming invalid or unenforceable.

ConfidentialityParties may disclose contract provisions

Despite any confidentiality or Intellectual Property right subsisting in this Agreement or a tender giving rise to it, either party may publish, without reference to the other, all or any part of this Agreement, except those parts identified in Schedule 3 (“Confidential Provisions”).

Limited confidentiality for Confidential Provisions0. The accountable authority for the purposes of Treasurer's Instruction TI C-1 issued under the Financial Management Act 2016 (Tas) (the accountable authority) has determined that the Confidential Provisions must remain confidential.The parties must maintain confidentiality of the Confidential Provisions for the period determined and approved by the accountable authority, so far as the law allows, except to the extent that:(i) the Confidential Provisions are available to the public generally, other than by breach of this Agreement;(ii) a law requires a party to file, record or register something that includes the Confidential Provisions;(iii) disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;(iv) it is necessary or advisable to disclose the Confidential Provisions to a taxation or fiscal authority; (v) it is necessary to disclose the Confidential Provisions in answer to a question asked of a Minister in the Parliament or otherwise to comply with a Minister’s obligations to Parliament; (vi) the Confidential Provisions are disclosed confidentially to a party’s professional advisers:(A) to get professional advice about this Agreement; or(B) to enforce this Agreement; or(vii) the parties agree otherwise in writing.Contractor must not disclose other material

Subject to clause 16.1, the Contractor must not publicly disclose, or use for a purpose other than this Agreement, any information or material acquired or produced in connection with, or by performing, this Agreement, including Crown Material or Contract Material (“Confidential Material”), without the Delegate’s prior written consent, except to the extent that:

0. the Confidential Material is available to the public generally, other than by breach of this Agreement;a law requires the Contractor to disclose, file, record or register something that includes Confidential Material;disclosure is necessary or advisable to get a consent, authorisation, approval or licence from a governmental or public body or authority;it is necessary or advisable to disclose the Confidential Material to a taxation or fiscal authority; the Confidential Material is disclosed confidentially to professional advisers:(i) to get professional advice about this Agreement; or(ii) to enforce this Agreement; orthe parties agree otherwise in writing.Employees to comply

The parties must ensure that their respective employees who have access to the Confidential Provisions, Confidential Material, or both, are aware of, and comply with, all confidentiality obligations affecting it.

Privacy obligations preserved

Nothing in this clause derogates from a party’s obligations under the Personal Information Protection Act 2004 (Tas) or the Privacy Act 1988 (Cwlth).

Security and accessContractor to comply with security regulations

When using any of the Crown’s premises or facilities, the Contractor must comply with all security and office regulations in effect at those premises or in regard to those facilities as notified by the Crown or the Delegate.

Delegate may inspect

At all reasonable times, the Contractor must:

0. give to the Delegate, or to any persons authorised in writing by the Crown, access to any premises where the manufacture of the Goods is being undertaken, the Goods are being stored or the performance of the Services is being carried out; andmust allow those persons to inspect the manufacture, storage or performance of the Goods and Services and any other material associated with the Goods and Services.Right to inspect third party premises

If a third party is involved in the manufacture, storage or conduct of the Goods and Services, then the Contractor must reserve, in each relevant sub-contract entered into with the third party, the right for the Crown to enter the premises of the third party for the purposes of clause 17.2(a) and (b).

Negation of employment and agencyNo representation by Contractor, sub-contractors etc

The Contractor:

0. must not represent itself; and must ensure that its sub-contractors, employees and agents do not represent themselves;

as being sub-contractors, employees or agents of the Crown or the Department.

Contractor remains independent Contractor0. Despite the degree of direction, control or supervision which the Crown directly or indirectly exercises over the Contractor, or the Contractor’s employees, agents or sub-contractors in the discharge of duties, obligations, and covenants under this Agreement, the Contractor is taken to be and remain an independent contractor. 0. The Contractor’s sub-contractors, employees and agents are taken to be and always to have been, and remain sub-contractors, employees or agents of the Contractor.TerminationCrown may terminate without cause

The Crown may terminate this Agreement without showing cause, by giving the Contractor 10 Business Days written notice.

Crown may terminate for default0. The Crown may terminate this Agreement by giving the Contractor a written notice (“Termination Notice”) if, 10 Business Days after receipt of a written notice (“Default Notice”) requiring the Contractor to do so, the Contractor:has not remedied each default in the performance of its obligations; or continues to be in breach of any of the provisions of this Agreement;

identified in the Default Notice.

The Termination Notice will be effective immediately the Contractor receives it and the Crown may then recover from the Contractor any loss or damage suffered by the Crown because of the Contractor’s default. The recovery may be effected by way of set-off against any moneys owed by, or which become due from, the Crown to the Contractor under this Agreement.Crown may terminate for insolvency

The Crown may terminate this Agreement immediately, by written notice, if any one of the following occurs:

0. if the Contractor is a corporation:an order is made, or a resolution is passed, winding up the Contractor;a receiver, or a receiver and manager is appointed over all or any part of the Contractor’s assets;a provisional liquidator or an administrator is appointed for the Contractor;a scheme of arrangement is submitted for approval;the Contractor convenes a meeting or enters, or proposes to enter, into any arrangements or composition with its creditors;the Contractor becomes insolvent;the Contractor ceases, or threatens to cease, to carry on its operations or to dispose of all, or a substantial part, of its undertaking;a mortgagee of the Contractor’s property takes possession of any of that property.if the Contractor is an individual or a partnership:the Contractor commits an act of bankruptcy;the Contractor enters into an arrangement or composition with creditors;a receiver is appointed for the assets of the partnership.2.1 Crown's right to terminate agreement for supply of cleaning services1. This clause 19.4 applies if this Agreement involves the supply of cleaning services by the Contractor to the Crown.1. The Crown may terminate this Agreement by immediate notice, in writing, to that effect to the Contractor if:(i) the Contractor contravenes any of sections of 357(1), 358 or 359 of the Fair Work Act 2009 (Cwlth);(ii) the contravention occurred in relation to an individual who performed any work for the supply of the Services; and(iii) in respect of that contravention, the Contractor is ordered to pay a pecuniary penalty under the Fair Work Act 2009 (Cwlth).Termination without cause

If the Crown terminates this Agreement under clause 19.1, then the Crown must pay the Contractor within a reasonable time:

1. for Goods and Services supplied and accepted, in accordance with clause 4.2 (Conformance with Specification or sample) before the effective date of termination; and(cq) if the Contractor is not then in breach of this Agreement, a fair and just proportion of other liabilities or expenses that the Contractor:has reasonably and properly incurred to provide the Goods and Services; andcannot otherwise recover or avoid.

The Crown is not liable to make any other payment for terminating under clause 19.1.

Termination otherwise than for without cause

If the Crown terminates this Agreement under clause 19.2, clause 19.3, or clause 19.4 then it may:

1. elect to accept any Goods and Services supplied before the termination, in which case the Crown is liable to make payment for those Goods and Services at a pro rata rate but subject to a correctly rendered invoice being submitted to the Crown by the Contractor and the Crown is not liable to make any other payments in relation to those Goods and Services; orelect to return all or part of the Goods and Services already supplied, in which case the Crown is not liable to make any payment for those Goods and Services and if payment has been made, then the Crown is entitled to a full refund of that money, which will be payable immediately on written demand being made and will be a debt due to the Crown.

All payments and refunds referred to in this clause are payable immediately upon written demand being made and may be recovered by set-off against any other money owed.

Contractor to reserve a right of termination in sub-contracts

The Contractor must in each sub-contract or order placed with any subcontractor for the purposes of this Agreement, reserve a right of termination to take account of the Crown’s right of termination under clause 19.1.

Reduction

Upon receipt of notice to terminate this Agreement, the Contractor must:

1. stop work as specified by that notice; and1. take all reasonable steps to minimise its loss resulting from the termination and to protect the Goods, Crown Material and Contract Material.Delay and extension of time

If it becomes evident to a party that anything, including an act or omission of the Crown, may delay the Delivery of the Goods or Services, then that party must promptly notify the other party in writing, with details of the possible delay and the cause. If the cause of the delay is an act or omission of the Crown, then the Crown must pay the Contractor the extra costs necessarily incurred by the Contractor because of the delay. Nothing in this clause:

1. obliges the Crown to pay extra costs for delay or disruption which have already been included in the value of a payment under this Agreement; or1. limits the Crown’s liability for damages for breach of contract.Variations changing the scope of the SpecificationCrown may give variation notice

The Crown may direct a variation to the Specification by giving a written notice to the Contractor (“Variation Notice”).

Contractor may refuse

The Contractor is not obliged to comply with a Variation Notice if the Contractor gives a written notice to the Delegate, under clause 22.3, within five Business Days of receipt of the Variation Notice.

Change to scope of the Specification

If the Crown issues a Variation Notice which the Contractor considers would change the general scope of the Specification, then the Contractor may so advise the Delegate in writing within five Business Days, stating:

1. whether or not the Contractor agrees to comply with the Variation Notice; and 1. if the Contractor agrees to comply with the Variation Notice, a fee proposal (“Fee Proposal”) for carrying out the direction.

Each time the Crown accepts a Fee Proposal, the Contractor must act upon the variation under the Fee Proposal.

If no agreement, parties in dispute

If the Crown either:

1. does not agree, within five Business Days of receipt of the Contractor’s notice given under clause 22.3, that the Variation Notice changes the general scope of the Specification; or 1. does not accept the Fee Proposal;

then the parties will be taken to be in dispute and clause 26 (Resolution of disputes) applies, if the Crown directs the Contractor to proceed with the variation.

Fee for variation

The Contract Price must be varied to cover the value of a variation to the Specification. Unless otherwise agreed, the value of a variation to the Specification must be determined using the basis on which the Contract Price and fees described in clause 7 (Contract Price) are determined, or if that is not possible, then reasonable rates and prices will apply.

Variation caused by Legislative Requirement

If a new Legislative Requirement or a change in a Legislative Requirement after the date of this Agreement, necessitates:

1. a change to the Specification;1. has effect after the date of this Agreement; and1. could not reasonably have been anticipated at that date,

then the extent to which the Specification is changed by that Legislative Requirement is taken to be a variation to the Specification under this clause 22.

Frustration and circumstances beyond controlFrustration of Agreement

If this Agreement is frustrated, then the Crown must pay the Contractor for Goods and Services which have been accepted under clause 4.2 (Conformance with Specification or sample) up to the date of frustration - the amount not then paid, but which would then have been payable if the Agreement had not been frustrated

Circumstances beyond control

A party is excused from performing its obligations to the extent it is prevented by circumstances beyond its reasonable control (except the lack of funds for any reason), such as acts of God, natural disasters, acts of war, riots and strikes outside the party’s organisation. If these circumstances arise, the affected party will give notice of them to the other as soon as possible, identifying the effect they will have on its performance, and must make all reasonable efforts to minimise the effects. If non-performance or diminished performance by the affected party continues for a period which the other party regards as commercially unreasonable, the other party may terminate this Agreement. If this Agreement is terminated in these circumstances, each party will bear its own costs and neither party will incur further liability to the other.

Waiver and variation1. No failure by a party to exercise, nor delay in exercising, a right, power or remedy operates as a waiver. 1. A single or partial exercise of a right, power or remedy does not preclude any other, or further, exercise of that, or any other right, power or remedy. 1. A waiver is neither valid nor binding on the party granting it, unless made in writing signed by the party to be bound by the waiver.Governing lawLaws of Tasmania

This Agreement is governed by the law of Tasmania and the parties submit to the jurisdiction of the Courts of Tasmania.

Proceedings issued under or about this Agreement

Any proceeding issued against the Crown under, or about, this Agreement, must be institut