Section 3
CONTRACT
for ITB and RFQ Goods and Related Services Procedures
CONTRACT FORM
Annex 1 : GENERAL CONDITIONS OF CONTRACT
Annex 2 : SPECIAL CONDITIONS OF CONTRACT (
INSERT)
REPÚBLICA DEMOCRÁTICA DE TIMOR-LESTE
REPÚBLICA DEMOCRÁTICA DE TIMOR-LESTE
MINISTÉRIO DAS FINANÇAS
MINISTÉRIO DAS FINANÇAS
SERVIÇOS DE APROVISIONAMENTO
SERVIÇOS DE APROVISIONAMENTO
Edificio No. 5, Sala 03A, Res-do-Cão, Palacio do Goberno, Dili, Timor-LesteTel. 3321871 – Fax. 3321882
CONTRACT
FOR SUPPLY OF
GOODS & RELATED SERVICES
CONTRACT No. RDTL...
For
(………….Insert description of Goods & Related Services……….)
THE DEMOCRATIC REPUBLIC OF TIMOR LESTE Ministry of Finance
Procurement Service
CONTRACT FOR SUPPLY OF GOODS & RELATED SERVICES
CONTRACT No.
RDTL- …………
THIS AGREEMENT made the _________day of ________ , 200X between the RDTL – Procurement Service, Ministry of Finance located at Edificio No. 5, Sala 03A, Res-do-Cão, Palacio do Governo, Dili, Timor-Leste (hereinafter "the Purchaser") of the one part and (insert name and address of Supplier) (hereinafter "the Supplier"). The Purchaser and the Supplier are hereinafter collectively referred to as “the Parties”.
WHEREAS the Purchaser is desirous that certain Goods & Related Services shall be provided by the Supplier, (insert description of Goods & Related Services), and has accepted a quotation by the Supplier for the supply of those Goods for the total sum of (insert contract amount in words and numbers) (hereinafter "the Contract Price").
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. In this Agreement words and expressions shall have the same meanings as are respectively assigned to them in the Conditions of Contract referred to.
2. The following documents shall be deemed to form and be read and construed as part of this Contract:
(a) this document
(b) the General Conditions of Contract as Annex (1) (c) Special Conditions of Contract as Annex (2) (d) item descriptions and price list as Annex (3)
3. In consideration of the payments to be made by the Purchaser to the Supplier as hereinafter mentioned, the Supplier hereby covenants with the Purchaser to provide the Goods and related services to remedy defects therein in conformity in all respects with the provisions of the Contract.
4. The Purchaser hereby covenants to pay the Supplier in consideration of the provision of the Goods and related services as the Contract Price or such other sum as may become payable under the provisions of the Contract at the times and in the manner prescribed by the Contract.
5.
The Payment shall be made in US Dollars by bank transfer within 30 days to the
COUNTRY – BANK LOCATION
CURRENCY OF PAYMENT
ACCOUNT NAME - VENDOR
ACCOUNT NUMBER
BANK NAME
BANK BRANCH NAME
BSB/ SWIFT CODE
IN WITNESS WHEREOF, the duly authorized representatives of the Parties have affixed their signatures below:
ON BEHALF OF THE SUPPLIER
____________________________________
NAME OF REPRESENTATIVE
Title Company Name
Date: _____________
ON BEHALF OF
THE GOVERNMENT OF TIMOR LESTE
____________________________________
Francisco C. Soares
Director Procurement Service
Ministry of FinanceContract Annex 1
GENERAL CONDITIONS OF CONTRACT FOR SUPPLY OF GOODS & RELATED SERVICES
1. Definitions
“Condition(s)” means the standard terms and conditions of contract for Goods furnished as set out in this document.
“Contract” means the agreement of Contract Name and Contract Number identified in the Special Conditions of Contract and concluded between the Purchaser and the Supplier for the supply of Goods & Related Services, including all specification, plans, drawings and other documents which are relevant to the Agreement.
“Contractor” or “Supplier” means the person, firm or company who undertakes to supply the Goods under and in accordance with the Contract and means also the supplier named in the Special Conditions of Contract.
“Goods” means any such good as are to be furnished to the Purchaser by the Supplier (or by any of the Supplier’s sub-contractors) in connection with Contract.
“Force Majeure” means an event beyond the control of the Supplier and not involving the Supplier’s fault or negligence and not foreseeable. Such events may include, but are not restricted to, acts of the Purchaser in its sovereign capacity, wars (whether declared or not), invasions, revolutions, insurrections, fires, floods, epidemics, quarantine restrictions, freight embargoes and other acts of a similar nature or force.
“Purchaser” means RDTL Procuring Entity acting on behalf of the Government of the Democratic Republic of Timor-Leste (RDTL) as named in the Special Conditions of Contract
“Premises” means the location where the Goods are to be delivered, as specified in the Contract.
“Related Services” means the ancillary services which may be provided as specified in the Contract.
2. Origin
All Goods and Servicessupplied under the Contract shall have their origin in the countries and territories eligible under the rules of the Government of Timor Leste. All goods and related services to be supplied under the contract shall have their origin in eligible source countries, and all expenditures made under the contract will be limited to such goods and services.
Eligible countries are those countries not excluded: (i) by a law or official regulation of RDTL which prohibits commercial relations with those countries, or (ii) by an act of compliance with a decision of the United Nations Security Council taken under Chapter VII of the Charter of the United Nations the RDTL prohibits any import of goods from such country or any payments to persons or entities in those countries This shall be evidenced through a certificate of origin issued at the time of shipment of Goods. The origin of Goods is distinct from the nationality of the Supplier.
3. Inspection and Rejection
The Purchaser or designated representative shall have the right to inspect goods upon delivery and to reject and refuse acceptance of goods or any part thereof if they do not conform to the Contract.
Should any inspected Goods fail to conform to the Specifications, the Purchaser may reject the Goods and the Supplier may be required to replace the Goods as necessary to meet specification requirements free of cost to the Purchaser.
4. Packing
The packing, marking, and documentation within and outside the packages shall comply strictly with such special requirements as shall be expressly provided for in the Special Conditions of Contract and in any subsequent written instructions ordered by the Purchaser.
5. Audit by the Administration
The Supplier shall permit the Purchase to inspect the Supplier’s accounts and records relating to the performance of the Contract and to have them audited by auditors appointed by the Purchaser, if so required by the Purchaser.
6. Delivery and Documents
The Goods shall be delivered to the place named in the Special Conditions of Contract . The delivery date shall be of the essence and failure to deliver within the delivery schedule promised or specified shall enable the Purchaser (at its option) to release itself from any obligation to accept and pay for the Goods.
Late delivery may be subject, without notice, to an assessment of liquidated damages in accordance with paragraph 14.1 (Liquidated Damages).
If the Supplier fails to deliver the Goods according to the delivery schedule, the Purchaser reserves the right to:
(a) Refuse to accept delivery of all or part of the Goods.
(b) Procure all or part of the Goods from other sources, in which event the Purchaser may hold the Supplier liable for any excess cost incurred thereby.
(c) Terminate the Contract without any liability on the part of the Purchaser.
6.4 The Supplier shall be responsible for providing all documentation required for customs clearance and receiving & inspection by the RDTL Receiving and Inspection Unit
6.5 The Supplier shall be solely responsible for all risks in transportation of goods to the place of receiving and inspection and shall arrange appropriate insurances against damage and loss
7. Warranty
The Supplier warrants that the Goods supplied under the Contract are new, unused, of the most recent or current models, and that they incorporate all recent improvements in design and materials unless provided otherwise in the Contract. The Supplier further warrants that all Goods supplied under this Contract shall have no defects, arising from design, materials, or workmanship or from any act or omission of the Supplier.
The warranty shall remain valid for the minimum period stated in the Special Conditions of Contract after the Goods, or portion thereof, as the case may be, have been delivered to and accepted at the final destination indicated in the Contract.
The Purchaser shall promptly notify the Supplier in writing of any claims arising under this warranty.
Upon receipt of such notice, the Supplier shall, repair or replace the defective Goods or parts thereof, without costs to the Purchaser.
8. Payment
Unless otherwise provided in the Contract, payments by the Treasury Department shall be made in US Dollars by bank transfer within thirty (30) days of receipt of Suppliers invoice for the Goods supported by a written certification from the RDTL Receiving and Inspection Unit that the Goods were received as specified in the Contract.
9. Prices
Prices charged by the Supplier for Goods delivered under the Contract shall not vary from prices quoted by the Supplier in its offer. Prices payable to the Supplier as stated in the Contract shall not be subject to any adjustment during the performance of the Contract.
The Supplier shall furnish information as described in the Form of Bid on commissions or gratuities, if any, paid or to be paid to agents relating to the Contract, and to Contract execution.
10. Change
The Purchaser may at any time, by written order given to the Supplier, make order changes within the general scope of the Contract in any one or more of the following:
(a) specifications, where Goods to be furnished under the contract are to be specifically manufactured for the Purchaser;
(b) method of packing and shipping; (c) place of delivery;
(d) change in quantities due to changed conditions.
If any such change causes an increase or decrease of the cost of, or the time required for, the Supplier’s performance of any provisions under the Contract, an equitable adjustment shall be made in the Contract Price or delivery schedule, or both, and the Contract shall accordingly be amended. Any claims by the Supplier for adjustment under this clause must be asserted within thirty (30) days from the date of the Supplier’s receipt of the Purchaser’s change order.
11. Contract
No variation in or modification of the terms of the Contract shall be made except by written amendment signed by the parties.
12. Assignment
The Supplier shall not assign, in whole or in part, its obligations to perform under this Contract, except with the Purchaser’s prior written consent.
13. Delays in Supplier’s Performance
Delivery of the Goods and performance of Services shall be made by the Supplier in accordance with time schedule prescribed in the Contract.
If at any time during performance of the Contract, the Supplier or its subcontractor(s) should encounter conditions impeding timely delivery of the Goods, the Supplier shall promptly notify the Purchaser in writing of the fact of the delay, its likely duration and its cause(s). As soon as practicable after receipt of the Supplier’s notice, the Purchaser shall evaluate the situation and may, at its discretion, extend the Supplier’s time for performance, with or without liquidated damages, in which case the extension shall be ratified by the parties by written amendment of the Contract.
14. Liquidated Damages
Late delivery shall be subject, without notice, to an assessment of liquidated damages equivalent to the daily amount and maximum amounts specified in the Special Conditions of Contract. The Purchaser has the right to deduct this amount from the supplier’s outstanding invoices, if any. This remedy is without prejudice to any others that may be available to the Purchaser, including termination of the Contract, for the Supplier’s non-performance, breach and/or violation of any of the terms and conditions of the Contract.
Acceptance of Goods delivered late shall not be deemed a waiver of the Purchaser’s rights to hold the Supplier liable for any loss and/or damage resulted therefrom, nor shall it act as a modification of the Supplier’s obligation to make future deliveries in accordance with the delivery schedule.
15. Termination for Default
The Purchaser may, without prejudice to any other remedy for breach of Contract, by written notice of default sent to the Supplier, terminate the Contract in whole or in part:
(a) if the Supplier fails to deliver any or all of the Goods within the period(s) specified in the Contract, or within any extension thereof granted by the Purchaser; or
(b) if the Supplier fails to perform any other obligation(s) under the Contract; or
(c) if the Supplier, in the judgment of the Purchaser, has engaged in corrupt or fraudulent practices in competing for or in executing the Contract.
For the purpose of this clause:
o “corrupt practice” means the offering, giving, receiving or soliciting of any thing of value to influence the action of a public official in the procurement process or in contract execution.
o “fraudulent practice” means a misrepresentation of facts in order to influence a procurement process or the execution of a contract to the detriment of the Purchaser, and includes collusive practice among Bidders (prior to or after bid submission) designed to establish bid prices at artificial non-competitive levels and to deprive the Purchaser of the benefits of free and open competition.
o “collusive practices” means a scheme or arrangement between two or more bidders, or between bidders and public officials or other persons directly or indirectly involved with the procurement and contracting processes, with or without the knowledge of the Purchaser, designed to influence the action of any party in a procurement process or the execution of a contract;
o “coercive practices” means harming or threatening to harm, directly or indirectly, persons, or their property to influence their participation in a procurement process, or affect the execution of a contract
o “conflict of interest” is considered to be a situation in which a party has interests that could improperly influence that party’s performance of official duties or responsibilities, contractual obligations, or compliance with applicable laws and regulations, and that such conflict of interest may contribute to or constitute a prohibited practice
In the event the Purchaser terminates the Contract in whole or in part, the Purchaser may procure all or part of the Goods from other sources, in which event the Purchaser may refuse to accept delivery of all or part of the goods from the Supplier and may hold the Supplier liable for any excess cost occasioned by the procurement of the Goods from other sources.
16. Force Majeure
In the event of and as soon as possible after the occurrence of any cause constituting force majeure, the Supplier shall give notice and full particulars in writing to the Purchaser of such occurrence or change if the Supplier is thereby rendered unable, wholly or in part, to perform its obligations and meet its responsibilities under the Contract.
be appropriate or necessary in the circumstances, including the granting to the Supplier of a reasonable extension of time in which to perform its obligations under the Contract.
If the Supplier is rendered permanently unable, wholly, or in part, by reason of force majeure to perform its obligations and meet its responsibilities under this Contract, the Purchaser shall have the right to suspend or terminate the Contract.
The Supplier shall not be liable for liquidated damages if and to the extent that its delay in performance or other failure to perform its obligations under the Contract is the result of Force Majeure.
17. Resolution of Disputes
The Purchaser and the Supplier shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the Contract.
Any Supplier that claims to have suffered loss or injury due to a breach of an obligation imposed on the procuring entity by Law may seek review in accordance with the applicable public procurement law of the Democratic Republic of Timor Leste
18. Governing Language
The Contract shall be written in the language stated in the Special Conditions of Contract.
All correspondence and other documents pertaining to the Contract which are exchanged by the parties shall be written in the language stated in the Special Conditions of Contract
19. Applicable Law
The Contract shall be interpreted in accordance with the laws of the Democratic Republic of Timor Leste at present in force
20. Notices
Any notice given by one party to the other pursuant to this Contract shall be sent to the other party in writing or by cable, telex, or facsimile and confirmed in writing to the other party’s address as stated in the special Conditions of Contract
A notice shall be effective when delivered or on the notice’s effective date, whichever is later.
21. Taxes and Charges
The Supplier shall be entirely responsible for all taxes and charges levied by the State and duly constituted authorities.
22. Performance Security
As security for its obligations and liabilities set forth herein, the Purchaser may require the Supplier to submit, on the date of execution of the Contract, a Performance Security in the form of bond, or bank guarantee to the Purchaser, in an amount equivalent to the percentage of the total contract price stated in the Special Conditions of Contract.
The Purchaser reserves its right to reject the performance security and seek change of the same with another performance security due to risk considerations.
The Supplier shall forfeit the Performance Security should it fail to deliver the Goods, or to perform other obligations under the Contract, and the Purchaser shall have the right to convert the Performance Security to cash without need for notice or reminder to the Supplier.
In case of Bank Guarantee, the bank shall be a reputable bank acceptable to the Purchaser.
The Performance Security will be discharged by the Purchaser and returned to the Supplier not later than 30 days following the date of completion of the Supplier’s performance obligations under the Contract, including Warranty obligations, unless otherwise specified in the Special Conditions of Contract
Contract Annex 2
1. Performance Security Form
________________________________ [Bank’s Name, and Address of Issuing Branch or Office]
Beneficiary: ___________________ [Name and Address of Purchaser]
Date: ________________
PERFORMANCE GUARANTEE No.: _________________
We have been informed that [name of Supplier] (hereinafter called "the Supplier") has entered into Contract No. [reference number of the contract] dated ____________ with you, for the supply of [description of goods] (hereinafter called "the Contract").
Furthermore, we understand that, according to the conditions of the Contract, a performance guarantee is required.
At the request of the Supplier, we [name of Bank] hereby irrevocably undertake to pay you any sum or sums not exceeding in total an amount of [amount in figures] ( ) [amount in words]1 upon
receipt by us of your first demand in writing accompanied by a written statement stating that the Supplier is in breach of its obligation(s) under the Contract, without your needing to prove or to show grounds for your demand or the sum specified therein.
This guarantee shall expire no later than the ____ day of _________, 2_____,2 and any demand for
payment under it must be received by us at this office on or before that date.
This guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 458, except that subparagraph (ii) of Sub-article 20(a) is hereby excluded.
__________________ [signature(s)]
1
The Guarantor shall insert an amount representing the percentage of the Contract Price specified in the
Contract and denominated either in the currency(ies) of the Contract or a freely convertible currency acceptable to the Purchaser.
2 Established in accordance with Clause 22 of the General Conditions of Contract (“GCC”), taking into
2. Bank Guarantee Form for Advance Payment
________________________________ [Bank’s Name, and Address of Issuing Branch or Office]
Beneficiary: ___________________ [Name and Address of Purchaser]
Date: ________________
ADVANCE PAYMENT GUARANTEE No.: _________________
We have been informed that [name of Supplier] (hereinafter called "the Supplier") has entered into Contract No. [reference number of the contract] dated ____________ with you, for the supply of [description of goods] (hereinafter called "the Contract").
Furthermore, we understand that, according to the conditions of the Contract, an advance payment in the sum [amount in figures] ( ) [amount in words] is to be made against an advance payment guarantee.
At the request of the Supplier, we [name of Bank] hereby irrevocably undertake to pay you any sum or sums not exceeding in total an amount of [amount in figures] ( ) [amount in words] upon receipt by us of your first demand in writing accompanied by a written statement stating that the Supplier is in breach of its obligation under the Contract because the Supplier used the advance payment for purposes other than toward delivery of the goods.
It is a condition for any claim and payment under this guarantee to be made that the advance payment referred to above must have been received by the Supplier on its account number ___________ at _________________ [name and address of Bank].
This guarantee shall expire, at the latest, upon our receipt of copy(ies) of ________3, or on the ___ day of ______, 2___,4 whichever is earlier. Consequently, any demand for payment under this guarantee must be received by us at this office on or before that date.
This guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No. 458.
_____________________ [signature(s)]
3
Insert documents establishing “delivery” of the goods
4 Insert the delivery date stipulated in the original delivery schedule. The Purchaser should note that in the
