Section 2.  Special Instructions to Tenderers

A.      General

[the Procuring Entity is the unit or subdivision of the Procuring Entity which will issue the Notification of Award and sign the Contract Agreement with the successful Tenderer. Frequently the Procuring Entity is represented by a Chief Engineer, Superintending Engineer, Executive Engineer, project director or other assigned person. See Regulations for definition of a Procuring Entity.]

The number and identification of lots comprising the Tender are: 

[if there is more than one lot, individual lots are to be identified in conformity with Section 6: Schedule of Requirements].

B.      Tender Document

ITT 8.1

Attention:

Address:

Telephone:

Facsimile number:

Electronic mail address:

OR

The Pre- Tender meeting shall be held at

Address:

Date:

Time:

C.      Qualification Criteria

[state “None” if not applicable]

[state “None” if not applicable]

D.      Preparation of Tender

[In cases of purchase of capital equipment by the Supplier as part of its overall Contract, a Performance Statement of the capital equipment in Nigeria may be necessary and may be requested. If no other documents are required the specify “none”.]

      &

ITT 42.5

Tenders are being invited for a single lot.

OR

Tenders are being invited for [state number]  lots.

[Mention the Lot Numbers above for Tenders that anticipate the award of more than one Contract and state that Tenderers can submit a Tender for one or more lots in the package. Tenderers will indicate in their Tender any discounts or cross-discounts which they offer for the award of more than one Contract

[this may either be the place at which the goods are required, a Procuring Entity’s warehouse, or some other point at which the goods are to be consigned.]

OR

A Manufacturer’s Authorisation Letter is required for all the items listed in Section 6: Schedule of Requirements.

OR

A Manufacturer’s Authorisation Letter is only required for the following items listed in Section 6: Schedule of Requirements.

[delete as appropriate]

[normally 60 to 120 days for simple cases of purchase of goods and up to 150 days for more complex purchases of Goods and Related Services].

[The Tender Security shall be issued by a reputable bank or financial institution selected by the Tenderer and acceptable to the Procuring Entity. A Tenderer may request the Procuring Entity in advance if a particular issuing entity of a security is acceptable. If an issuing entity is foreign but the security is otherwise in conformity with the requirements in the Tender Document, the Employer shall not reject the security.]

[For more than one lot in a package, the Tender Security for each lot should be mentioned separately.  The Tender Security amount should be expressed as a fixed amount (around 2% and in no case exceeding 5% of the estimated contract value) for each lot. OR

A Tender Security shall not be required

[usually only three copies are needed, ask for more only if they are essential].

E.      Submission of Tender

Attention:

Address:

[indicate any markings that are required on the inner and outer envelopes].

F.      Opening and Evaluation of Tenders

Address:

On Time & Date:

[Select as appropriate from criteria listed in ITT Clause 42.4, retaining only the evaluation method applicable and the relevant parameters corresponding to the retained criteria].

Option (i), or

Option (ii), or

Option (iii)

Delivery schedule.

Adjustment expressed as a percentage,

adjustment expressed a percentage,

adjustment expressed as a percentage

[a rate of one-half (0.5) percent per week is a reasonable figure]

[Specify the applicable factors (e.g., number of years) and reference to the Appendix to the Technical Specifications, as required. State “None” if not applicable]

[Minimum service facilities and parts inventories or reference to the Technical Specifications. State “None” if not applicable]

Factors for calculation of the life cycle cost:

(i)          number of years for life cycle [The life cycle is the period after which the Procuring Entity would normally expect replace the procured goods];

(ii)        operating costs [e.g., fuel and /or other input, unit cost, and annual and total operational requirements];

(iii)      maintenance costs [e.g., spare parts – without duplication of above Clause 42.4(b) requirements – and/or other inputs], and

(iv)      rate, as a percentage, to be used to discount all annual future costs calculated under (ii) and (iii) above to present value.

OR,

Reference to the methodology specified in the Technical Specifications or elsewhere in the Tender Document.

[state “None” if not applicable].

[Specify the applicable procedure and the adjustment factor as required. The adjustment factor should apply to the norm that shall be used and that shall either be specified in the Technical Specifications or shall be the value committed in the responsive bid with the best guaranteed performance or productivity. State “None” if not applicable]

[A margin of preference only applies to domestic goods in the event of international competition and should not exceed 15% % of the evaluated Contract Price. The procedure for evaluating tenders subject to domestic preference is attached under H – Evaluation Criteria for Domestic Preference].

G.      Award of Contract

The maximum percentage by which quantities per item may be decreased is [state percentage].

[in both instances the maximum percentage is between 15 and 20 %].

[At present a fixed sum of 10 percent is stated in the Regulations]

H       Evaluation Criteria for Domestic Preference for Goods

Group A: Tenders from eligible domestic suppliers exclusively offering goods manufactured in Nigeria, if the eligible bidder establishes to the satisfaction of the Procuring Entity and BPP that (1) labor, raw material and components from within the country of the Procuring Entity will account for 30 percent or more of the EXW (ex factory or off-the-shelf) price of the product offered, and (2) the production facility, in which those goods will be manufactured or assembled, has been engaged in manufacturing/assembling such goods at least since the time of tender submission.

Group B:      All other tenders offering goods manufactured in Nigeria,

Group C:    Tenders offering goods manufactured outside Nigeria that have already been or will be directly imported.

b.                  The Procuring Entity will first review the tenders to confirm the appropriateness of, and to modify as necessary, the tender group classification to which tenderers assigned their tenders in preparing their Tender Forms and Price Schedules

c.                   The prices quoted for goods in Group A and B shall include all duties and taxes paid or payable on the basic materials or components purchased in the domestic market or imported, but shall exclude the sales and similar taxes on the finished product.

d.                  The prices quoted for goods in Group C shall be on  basis of EXW (ex-warehouse in Nigeria)  plus cost of inland transportation and insurance to the place of destination, but exclusive of customs duties and other import taxes already paid or to be paid )

e.                   The evaluation of tenders is carried out in the following steps.

(a)    In the first step, all tenders in each group are compared to determine the lowest responsive tender in each group. Such lowest evaluated tenders are then compared with each other, and if, as a result of this comparison, a tender from Group A or B is the lowest, it will be selected for award (i.e. no preference is needed.)

(b)   If as a result of the comparison under (a), the lowest evaluated tender is a tender from Group C, 15 percent of the evaluated CIP EXW (ex-warehouse in Nigeria) tender price is added to this tender from Group C (for comparison only) and the resulting price is then further compared with the lowest evaluated tender from Group A (which includes a minimum of 30 percent of value added locally). The lowest evaluated tender from this last comparison is then selected for award.

(c)    In the case of turnkey contracts for the supply of a number of distinct items of equipment as well as major installation and/or construction services, no margin of preference shall apply.

Section 3.  General Conditions of Contract

1.         Definitions

(a)      Completion Schedule means the fulfilment of the Related Services by the Supplier in accordance with the terms and conditions set forth in the Contract;

(b)      Contract Agreement means the Agreement entered into between the Procuring Entity and the Supplier, together with the Contract Documents referred to therein, including all attachments, appendices, and all documents incorporated by reference therein;

(c)      Contract Documents means the documents listed in the Contract Agreement, including any amendments thereto;

(d)      Contract Price means the price payable to the Supplier as specified in the Contract Agreement, subject to such additions and adjustments thereto or deductions therefrom, as may be made pursuant to the Contract;

(e)      Day means calendar day;

(f)       Delivery means the transfer of ownership of the Goods from the Supplier to the Procuring Entity in accordance with the terms and conditions set forth in the Contract;

(g)      GCC mean the General Conditions of Contract;

(h)      Goods means all of the commodities, raw materials, machineries and equipment, products and/or other materials in solid, liquid or gaseous form that the Supplier is required to supply to the Procuring Entity under the Contract, as specified in the SCC;

(i)        Government means the Federal Government of Nigeria;

(j)        Procuring Entity means the entity purchasing the Goods and Related Services, as specified in the SCC;

(k)      Related Services means the services incidental to the supply of the goods, such as insurance, installation, training and initial maintenance and other similar obligations of the Supplier under the Contract;

(l)        SCC means the Special Conditions of Contract;

(m)     Subcontractor means any natural person, private or government entity, or a combination of the above, including its legal successors or permitted assigns, who has a Contract with the Supplier to carry out a part of the supply in the Contract, or a part of the Related Services of the Contract;

(n)      Supplier means the natural person, private or government entity, or a combination of the above, whose Tender to perform the Contract has been accepted by the Procuring Entity and is named as such in the SCC and the Contract Agreement, and includes the legal successors or permitted assigns of the Supplier;

(o)      Writing means any hand-written, type-written, or printed communication including telex, cable and facsimile transmission

2.         `Contract Documents

3.         Corrupt, Fraudulent, Collusive or Coercive Practices

(a)      exclude the Supplier from participation in the procurement proceedings concerned or reject a proposal for award; and

(b)      declare a Supplier ineligible, either indefinitely or for a stated period of time, from participation in procurement proceedings under public funds;

            if it at any time determines that the Supplier has engaged in corrupt, fraudulent, collusive or coercive practices in competing for, or in executing, a contract under public funds.

(a)          “corrupt practice” means offering, giving, or promising to give, directly or indirectly, to any officer or employee of a Procuring Entity or other governmental/private authority or individual a gratuity in any form, an employment or any other thing or service of value, as an inducement with respect to an act or decision of, or method followed by, a Procuring Entity in connection with the procurement proceeding;

(b)         “fraudulent practice” means a misrepresentation or omission of facts in order to influence a procurement proceeding or the execution of a contract to the detriment of the Procuring Entity;

(c)          “collusive practice” means a scheme or arrangement among two or more Tenderers with or without the knowledge of the Procuring Entity (prior to or after Tender submission) designed to establish Tender prices at artificial, non-competitive levels and to deprive the Procuring Entity of the benefits of free, open and genuine competition; and

(d)         “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence the procurement proceedings or affect the execution of a contract.

4.         Interpretation

(a)   The Contract constitutes the entire agreement between the Procuring Entity and the Supplier and supersedes all communications, negotiations and agreements (whether written or oral) of parties with respect thereto made prior to the date of Contract Agreement.

(a)   No amendment or other variation of the Contract shall be valid unless it is in writing, is dated, expressly refers to the Contract, and is signed by a duly authorised representative of each party thereto.

(a)      Subject to GCC Sub-Clause 4.4(b), no relaxation, forbearance, delay, or indulgence by either party in enforcing any of the terms and conditions of the Contract or the granting of time by either party to the other shall prejudice, affect, or restrict the rights of that party under the Contract, neither shall any waiver by either party of any breach of Contract operate as waiver of any subsequent or continuing breach of Contract.

(b)      Any waiver of a party’s rights, powers, or remedies under the Contract must be in writing, dated, and signed by an authorised representative of the party granting such waiver, and must specify the right and the extent to which it is being waived.

(a)     If any provision or condition of the Contract is prohibited or rendered invalid or unenforceable, such prohibition, invalidity or unenforceability shall not affect the validity or enforceability of any other provisions and conditions of the Contract.

(a)     If partial supply is specified in the Schedule of Requirements, references in the GCC to the Supply and to the Delivery Date shall apply to any portion of the Supply (other than references to the Completion Date for the whole of the Supply).

5.         Documents Forming the Contract and Priority of Documents

(a)                the signed Contract Agreement;

(b)               the letter of Notification of Award

(c)                the completed Tender Submission Sheet as submitted by the Tenderer;

(d)               the completed Price Schedules as submitted by the Tenderer;

(e)                the Special Conditions of Contract;

(f)                the General Conditions of Contract;

(g)                the Schedule of Requirements;

(h)               the Technical Specifications;

(i)                 the Drawings, and;

(j)                 any other document listed in the SCC as forming part of the Contract.

6.         Eligibility

7.         Governing Language

8.         Governing Law

9.         Gratuities / Agency fees

10.     Joint Venture, (JV)

11.     Confidential Information

(a)  the Procuring Entity or Supplier needs to share with institutions participating in the financing of the Contract;

(b)  now or hereafter enters the public domain through no fault of that party;

(c)  can be proven to have been possessed by that party at the time of disclosure and which was not previously obtained, directly or indirectly, from the other party; or

(d)  otherwise lawfully becomes available to that party from a third party that has no obligation of confidentiality.

12.     Communications and Notices

13.     Patent and Intellectual Property Rights

(a)  the installation of the Goods by the Supplier or the use of the Goods in Nigeria; and

(b)  the sale in any country of the products produced by the Goods.

Such indemnity shall not cover any use of the Goods or any part thereof other than for the purpose indicated by or to be reasonably inferred from the Contract, neither any infringement resulting from the use of the Goods or any part thereof, or any products produced thereby in association or combination with any other equipment, plant, or materials not supplied by the Supplier, pursuant to the Contract.

14.     Copyright

15.     Assignment

16.     Sub-contracting

17.     Supplier’s Responsib ilities

18.     Procuring Entity’s Responsib ilities

19.     Scope of Supply

20.     Change Orders and Contract Amendments

(a)       drawings, designs, or specifications, where Goods to be furnished under the Contract are to be specifically manufactured for the Procuring Entity provided such changes do not materially affect the scope of supply;

(b)       the method of shipment or packing;

(c)       the place of delivery; and

(d)       the Related Services to be provided by the Supplier.

21.     Packing and Documents

22.     Delivery and Documents and Acceptance

23.     Contract Price

24.     Transport ation

25.     Spare Parts

(a)          such spare parts as the Procuring Entity may elect to purchase from the Supplier, provided that this election shall not relieve the Supplier of any warranty obligations under the Contract; and

(b)         in the event of termination of production of the spare parts :

(i)                   advance notification to the Procuring Entity of the pending termination, in sufficient time to permit the Procuring Entity to procure needed requirements; and

(ii)                 following such termination, furnishing at no cost to the Procuring Entity, the blueprints, drawings, and specifications for the spare parts, if requested.

26.     Terms of Payment

27.     Insurance

28.     Taxes and Duties

29.     Performance Security

(a)                the Supplier is in breach of the Contract and the Procuring Entity has notified him that he is.

30.     Specifications and Standards

31.     Inspections and Tests

32.     Warranty

33.     Extensions of Time

34.     Liquidated Damages

35.     Limitation of Liability

(a)    the Supplier shall not be liable to the Procuring Entity, whether in contract, tort, or otherwise, for any indirect or consequential loss or damage, loss of use, loss of production, or loss of profits or interest costs, provided that this exclusion shall not apply to any obligation of the Supplier to pay liquidated damages to the Procuring Entity and

(b)    the aggregate liability of the Supplier to the Procuring Entity, whether under the Contract, in tort or otherwise, shall not exceed the total Contract Price, provided that this limitation shall not apply to the cost of repairing or replacing defective equipment, or to any obligation of the supplier to indemnify the Procuring Entity with respect to patent infringement.

36.     Change in Laws and Regulations

37.     Force Majeure

38.     Termination

(a)         The Procuring Entity, without prejudice to any other remedy for breach of Contract, by giving twenty eight (28) days written notice of default, may terminate the Contract in whole or in part:

(i)         if the Supplier fails to deliver any or all of the Goods within the period specified in the Contract, or within any extension thereof granted by the Procuring Entity pursuant to GCC Clause 33; or

(ii)        if the Supplier fails to perform any other obligation under the Contract.

(b)                     In the event the Procuring Entity terminates the Contract in whole or in part, pursuant to GCC Sub-Clause 38.1(a), the Procuring Entity may procure, upon such terms and in such manner as it deems appropriate, Goods or Related Services similar to those undelivered or not performed, and the Supplier shall be liable to the Procuring Entity for any additional costs for such similar Goods or Related Services. However, the Supplier shall continue performance of the Contract to the extent not terminated.

(c)                     If the Supplier, in the judgment of the Procuring Entity has engaged in corrupt, fraudulent, collusive or coercive practices, as defined in GCC Clause 3, in competing for or in executing the Contract.

                              (a)      The Procuring Entity and the Supplier’s may at any time terminate the Contract by giving notice to the other party if either of the party becomes bankrupt or otherwise insolvent.  In such event, termination will be without compensation to any party, provided that such termination will not prejudice or affect any right of action or remedy that has accrued or will accrue thereafter to the other party.

                              (a)      The Procuring Entity, by notice sent to the Supplier, may terminate the Contract, in whole or in part, at any time for its convenience.  The notice of termination shall specify that termination is for the Procuring Entity’s convenience, the extent to which performance of the Supplier under the Contract is terminated, and the date upon which such termination becomes effective.

                              (b)      The Goods that are complete and ready for shipment within twenty-eight (28) days after the Supplier’s receipt of notice of termination shall be accepted by the Procuring Entity at the Contract terms and prices.  For the remaining Goods, the Procuring Entity may elect:

                                            (i)             to have any portion completed and delivered at the Contract terms and prices; and/or

                                          (ii)             to cancel the remainder and pay to the Supplier an agreed amount for partially completed Goods and Related Services and for materials and parts previously procured by the Supplier.

39.     Settlement of Disputes

(a)   The Procuring Entity and the Supplier shall use their best efforts to settle amicably all disputes arising out of or in connection with this Contract or its interpretation.

(a)         If the Parties are unable to reach a settlement as per GCC Clause 39.1(a) within twenty-eight (28) days of the first written correspondence on the matter of disagreement, then either Party may give notice to the other party of its intention to commence arbitration in accordance with GCC Sub-Clause 39.2(b).

(b)        The arbitration shall be conducted in accordance with the Arbitration Act (……….) of Nigeria as at present in force and in the place shown in the SCC.