Delegation of the European Union to Albania

EEAS-DELBWA-01/01/2020-SUP-FWC SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

Open
Works
€15.000 - €60.000

The Delegation of the European Union to Botswana is launching a call for tenders using a Supply Framework Contract Negotiated Procedure

If you are interested to participate, you may express your interest by sending an email to the contact e-mail mentioned below, following the instructions on the webpage How to apply for an EEAS call for tenders.

 

EUROPEAN UNION

DELEGATION TO THE REPUBLIC OF BOTSWANA

 

 

Head of Delegation

 

 

 

Gaborone,

Ares(2020)

 

 

 

 

 

Dear Sir/Madam,

 

Subject:         EEAS-DELBWA-01/01/2020-SUP-FWC

                  SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

 

  1. The European Union Delegation to the Republic of Botswana invites you to submit a tender for the contract referred to above. The procurement documents consist in this invitation letter, the tender specifications with their annexes, the draft contract and the instructions on the procedure "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en
  2. If you are interested in this contract, you should submit a tender in one of the official languages of the European Union.

You must submit your tender exclusively on paper in one original and two (2) copies.  The time limit for submission of the tender is 31 January 2020 @ 12:00.  You must use one of the means of submission listed below. Submission is understood as the time at which the tenderer hands over the tender to the post office or courier service or at the reception of the Delegation.

Means of submission

Time limit

Evidence

Address for delivery

Post

Courier

 

24:00

 

Postmark

Deposit slip of courier service

CALL FOR TENDERS

EEAS-DELBWA-…….-SER/SUP-FWC 2020

SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

EU Delegation to the Republic of Botswana

For the attention of the Head of Administration

Robinson Road, Plot 758

Gaborone

 

P.O Box 1253

Gaborone

In person (hand delivery)

13:00 local time in Botswana

Proof of receipt, signed and dated by the agent at the reception of the Delegation

Hand delivery can be received from 08.00 to 16.00 Monday to Thursdays, from 08.00 to 12.00 on Fridays. The Delegation is closed on Saturdays, Sundays and official holidays of the contracting authority.

 

  1. The period of validity of the tender, during which tenderers may not modify the terms of their tenders in any respect, is three (3)  months from the date indicated in point
  2. Before the deadline of submission of the tender, any request for additional information must be made in writing to delegation-botswana-tenders@eeas.europa.eu

The contracting authority is not bound to reply to requests for additional information received less than five working days before the date of receipt of tenders indicated in point 3.

For more details, please refer to the document "Instructions applicable to negotiated procedure for (very) low and middle-value contracts ".

  1. An on-site visit is planned on 21 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at delegation-botswana-tenders@eeas.europa.eu at the latest 4 calendar days prior to the visit to know the time that is allocated to each of them.

 

 

 

Jan Sadek
Authorizing Officer by Sub-Delegation

 

Annexes:

- Tender specifications, Annex I

- Technical specifications, Annex II

- Draft service framework contract

 

 

 

TENDER SPECIFICATIONS

No EEAS-DELBWA-01/01/2020-SUP-DIR

SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

 

Supply Framework Contract

NEGOTIATED PROCEDURE

  1. Introduction

The contracting authority is the European Union (hereinafter referred to as "contracting authority"), represented by the Head the Delegation of the European Union in The Republic of Botswana or its duly authorized representative.

These tender specifications and the tender submitted by the awardee of the contract will be annexed to the contract and therefore be binding on the contracting parties during the implementation of the contract.

In addition, the instructions as stipulated in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" (available at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en are applicable to this tender unless otherwise mentioned in these tender specifications.

  1. subject of the contract
  • The contractor must provide the human and material resources necessary to provide the service in the non‑exhaustive list below:
  • supply of 807 sqm of H.D.F. (high density conifer fibre board) impregnated with wax treatment, preferred color: sun bleached oak or similar
  • supply of 150 sqm of rigid core vinyl SPC (Stone plastic composite) suitable for bathrooms and kitchen, preferred color: Sunstone or similiar
  • full installation including supply of surface underlay and fitting of skirting detail
  • warranty of a minimum of 15 years
  •  

The place of performance is the Residence of the European Union Ambassador.

  1. joint tender

The provisions are detailed in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" as mentioned under point 1 above.

  1. eligibility of economic operators
    1. Access to public procurement

In addition to the provisions at point 4.1 of the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts", this tender is also exceptionally open on equal terms to all natural and legal persons in The Republic of Botswana.

    1. Non-exclusion and selection of economic operators

Tenderers shall provide a declaration on exclusion and selection criteria attached to these tender specifications dully filled in, signed and dated by the legally authorised representative.

The declaration on exclusion and selection criteria shall be provided by each member of the group in case of joint tenders.

All the tenderers shall provide with their tenders the documents mentioned as supporting documents on selection criteria in the declaration on their honour and in the "Tender form" annexed to these tender specifications.

The tenderers shall meet the selection criteria listed here below.

      1. Legal and regulatory capacity criteria
  1. Authorisation to provide the services at the place of performance of the contract.

Minimum capacity level required:

The tenderer shall be authorised to provide the services being subject to this contract at the place of performance of this contract. The relevant certificate must be valid on the date of the deadline for the submission of requests to participate.

Supporting document(s)/evidence requested:

  1. Evidence on enrolment in a relevant professional or trade register, except for international organisations.

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

Before the signature of the contract, the validity of the certificate may be verified again.

      1. Economic and financial capacity criteria
  1. Turnover

Minimum capacity level required:

  1. The average annual turnover for the last two financial years for which accounts have been closed.

Supporting document(s)/evidence requested:

Profit and loss accounts (Income statement) for the last two financial years for which accounts have been closed.

 

      1. Technical and professional capacity criteria
  1. Previous contracts

Minimum capacity level(s) required:

1. At least three contracts in the fields related to the painting services indicated in point 2 during the last three calendar years.

Supporting document(s)/evidence requested:

In order to meet the minimum capacity level(s) required mentioned above, the tenderer must present a list of references and/or client's reference letters relevant to the painting service contracts performed during the past three calendar years.

The criterion is applied to:

  1. Evaluation of tenders on the basis of the award criteria

The technically compliant tenders are evaluated in order to award the contract to the tender offering the lowest price. In other words, the contract is awarded to the tender that satisfies the requirements set in the technical specifications and offers the lowest price.

    1. Technical compliance

The technical compliance will be evaluated based on the "Table of compliance with the requirements in the procurement documents" (refer to the "Tender form"). The tenderers shall return the table duly completed, dated and signed.

    1. Financial tender

Only the financial tenders submitted by those tenderers who have submitted technically compliant tenders as indicated above will be considered for the award.

The prices for the tender must be tendered:

  • in BWP;
  • free of all duties, taxes and other charges, including VAT, as the European Union is exempt from such charges under the Vienna Convention;
  • all inclusive. This means that, unless otherwise mentioned in these tender specifications, prices tendered for shall include all the costs to be incurred by the tenderers to fully implement the contract;
  • using the unit price schedule (Annex A).
  1. Content of the tender

The tenderer shall duly complete and sign the "Tender form" annexed to these tender specifications and submit all the documents requested in it.

The contracting authority reserves the right to decide whether to request or not any missing documents not provided by the tenderers.

  1. Annexes

Annex I: Technical specifications

Annex II:            Tender form

  • Section 1:            Presentation of the tenderer
  • Section 2:            Legal entity form and Financial Identification Form
  • Section 3:            Declaration on honour on exclusion and selection criteria
  • Section 4:            Evidence on selection criteria
  • Section 5 :          Technical tender – Table of compliance with the requirements in the procurement documents
  • Section 6 :           Financial tender

 Annexes Annex I Technical specifications

The contracting authority intends to procure the provision of painting services to be rendered to the EU Delegation.  All the requirements in the following technical specifications are considered to be minimum requirements and therefore not subject to the negotiation, if any, unless specified for any particular aspects.

  1. Scope of Work

The following services are required:

  • supply of 807 sqm of H.D.F. (high density conifer fibre board) impregnated with wax treatment, preferred color: sun bleached oak or similar
  • supply of 150 sqm of rigid core vinyl SPC (Stone plastic composite) suitable for bathrooms and kitchen, preferred color: sunstone or similar
  • full installation including supply of surface underlay and fitting of skirting detail
  • warranty of a minimum of 15 years.
  1. Equipment and materials

Equipment and material will be supplied by the contractor.

  • All equipment and material must comply with the standards of the The Republic of Botswana.
  • All material shall be of a very good and proven durable quality

 

  1. Specific Requirements

 

  1. General Workmanship

 

  • All existing porcelain floor tiles in the various areas need to be removed and the surface prepared accordingly.
  • All work shall be done in a neat and clean manner
  • Wooden flooring has to be placed according to the manufacturer's recommendations.
  • The finished work shall be free from scratches on the material; skirting board shall be placed without leaving a gap or opening.
  • All surfaces shall be left clean at completion of the job

 

 

 

  1. Conduct of Operations
  • The Contractor shall conduct the requested works in a cooperative manner with the Contracting Authority and shall interfere as little as possible with the normal operations and functioning of the Residence and the tenants of the properties.
  • Whether these spaces are occupied or not, the work of the Contractor is to be pursued diligently to the end and each area is to be finished at the earliest possible moment. Work shall be done in areas as directed by the Contracting Authority so that any inconvenience is kept to a minimum.
  1. Protection
  • The Contractor shall be responsible for any damage to other work. Any materials which in the opinion of the Contracting Authority have become damaged to such an extent that they cannot be restored to their original condition shall be replaced at the Contractor's expense.
  1. Staff

Staff must have

  • no criminal record;
  • a polite, professional and punctual behaviour;
  • a very good sense of organisation, planning and time-keeping.
  1. Warranty

The tenderer must indicate the warranty on the works.

 

Annex II Tender form

Section 1

Presentation of the tenderer

  EEAS-DELBWA………-SUP-FWC 2020

Supply and installation of laminated wood flooring

 

Official name of legal entity

State of the headquarters (legal persons) or of the domicile (natural persons) of the legal entity

Main registration number

Leader

 

 

 

Member

 

 

 

[insert as many rows as necessary]

 

 

 

 

CONTACT PERSON FOR THIS TENDER

Name

 

Position

 

Address

 

e-mail

 

 

 

Name(s) and signature(s) of the legal representative(s) of the tenderer*:

*in case of joint tender, the form shall be signed by the legal representative of each member of the group as indicated above under "Tenderer".

 

Stamp, date and place

Section 2

Legal entity form

 

Please submit a signed Legal Entity Form with its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm .

When the tenderer is a legal person, a legible copy of the notice of appointment of the persons authorised to represent the tenderer in dealings with third parties and in legal proceedings, or a copy of the publication of such appointment if the legislation which applies to the legal entity concerned requires such publication. Any delegation of this authorisation to another representative not indicated in the official appointment must be evidenced. When the tenderer is a natural person, a proof of registration on a professional or trade register or any other official document showing the registration number. The legally constituted consortium must present its own Legal Entity Form which is different from the Legal Entity Form of each individual member of the group;

 

Financial identification form

Please submit a signed financial identification form and its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm, (bank account file - BAF). Even in case of joint tenders, one form must be submitted;

 

 

 

Section 3

Declaration on honour on exclusion criteria and selection criteria

The undersigned ……………………….... [name of the signatory of this form], representing:

(only if the candidate is a natural person) himself or herself

(only if the candidate is a legal person) the following legal person:

 

ID or passport number:

 

(‘the person’)

Full official name:

Official legal form:

Statutory registration number:

Full official address:

VAT registration number:

 

(‘the person’)

 

The person is not required to submit the declaration on exclusion criteria if the same declaration has already been submitted for the purposes of another award procedure of the same contracting authority, provided the situation has not changed, and that the time that has elapsed since the issuing date of the declaration does not exceed one year.

In this case, the signatory declares that the person has already provided the same declaration on exclusion criteria for a previous procedure and confirms that there has been no change in its situation:

Date of the declaration

Full reference to previous procedure

 

 

 

I – Situation of exclusion concerning the person

  1.  declares that the above-mentioned person is in one of the following situations:

YES

NO

  1. it is bankrupt, subject to insolvency or winding-up procedures, its assets are being administered by a liquidator or by a court, it is in an arrangement with creditors, its business activities are suspended or it is in any analogous situation arising from a similar procedure provided for under Union or national law;

 

 

  1. it has been established by a final judgement or a final administrative decision that the person is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law;

 

  1. it has been established by a final judgement or a final administrative decision that the person is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibity where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:

 

(i) fraudulently or negligently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of eligibility selection criteria or in the performance of a contract or an agreement;

 

 

(ii) entering into agreement with other persons with the aim of distorting competition;

 

 

(iii) violating intellectual property rights;

 

 

(iv) attempting to influence the decision-making process of the contracting authority during the award procedure;

 

 

(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

 

  1. it has been established by a final judgement that the person is guilty of the following:

 

(i) fraud, within the meaning of Article 3 of Directive (EU) 2017/1371 and Article 1 of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995;

 

 

(ii) corruption, as defined in Article 4(2) of Directive (EU) 2017/1371 or active corruption within the meaning of Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997, or conduct referred to in Article 2(1) of Council Framework Decision 2003/568/JHA, as well as corruption as defined in the other applicable laws;

 

 

(iii) conduct related to a criminal organisation, as referred to in Article 2 of Council Framework Decision 2008/841/JHA;

 

 

(iv) money laundering or terrorist financing, within the meaning of Article 1(3), (4) and (5) of Directive (EU) 2015/849 of the European Parliament and of the Council;

 

 

(v) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA, respectively, or inciting, aiding, abetting or attempting to commit such offences, as referred to in Article 4 of that Decision;

 

 

(vi) child labour or other offences concerning trafficking in human beings as referred to in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council;

 

 

  1. it has shown significant deficiencies in complying with the main obligations in the performance of a contract or an agreement financed by the Union’s budget, which has led to its early termination or to the application of liquidated damages or other contractual penalties, or which has been discovered following checks, audits or investigations by a contracting authority, the European Anti-Fraud Office (OLAF) or the Court of Auditors;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has committed an irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) No 2988/95;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has created an entity under a different jurisdiction with the intent to circumvent fiscal, social or any other legal obligations in the jurisdiction of its registered office, central administration or principal place of business.

 

 

  1. (only for legal persons) it has been established by a final judgment or final administrative decision that the person has been created with the intent provided for in point (g).

 

 

  1. for the situations referred to in points (c) to (h) above the person is subject to:
  1. facts established in the context of audits or investigations carried out by the European Public Prosecutor's Office after its establishment, the Court of Auditors, the European Anti-Fraud Office (OLAF) or the internal auditor, or any other check, audit or control performed under the responsibility of an authorising officer of an EU institution, of a European office or of an EU agency or body;
  2. non-final judgements or non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;
  3.  facts referred to in decisions of entities or persons being entrusted with EU budget implementation tasks;
  4. information transmitted by Member States implementing Union funds;
  5. decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law; or
  6. decisions of exclusion by an authorising officer of an EU institution, of a European office or of an EU agency or body.

 

 

II – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS WITH POWER OF REPRESENTATION, DECISION-MAKING OR CONTROL OVER THE LEGAL PERSON AND BENEFICIAL OWNERS

Not applicable to natural persons, Member States and local authorities

  1. declares that a natural or legal person who is a member of the administrative, management or supervisory body of the above-mentioned legal person, or who has powers of representation, decision or control with regard to the above-mentioned legal person (this covers e.g. company directors, members of management or supervisory bodies, and cases where one natural or legal person holds a majority of shares), or a beneficial owner of the person (as referred to in point 6 of article 3 of Directive (EU) No 2015/849) is in one of the following situations:

YES

NO

N/A

Situation (c) above (grave professional misconduct)

 

 

 

Situation (d) above (fraud, corruption or other criminal offence)

 

 

 

Situation (e) above (significant deficiencies in performance of a contract )

 

 

 

Situation (f) above (irregularity)

 

 

 

Situation (g) above (creation of an entity with the intent to circumvent legal obligations)

 

 

 

Situation (h) above (person created with the intent to circumvent legal obligations)

 

 

 

Situation (i) above

 

 

 

 

III – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS ASSUMING UNLIMITED LIABILITY FOR THE DEBTS OF THE LEGAL PERSON

  1.  declares that a natural or legal person that assumes unlimited liability for the debts of the above-mentioned legal person is in one of the following situations:

YES

NO

N/A

Situation (a) above (bankruptcy)

 

 

 

Situation (b) above (breach in payment of taxes or social security contributions)

 

 

 

 

IV – GROUNDS FOR REJECTION FROM THIS PROCEDURE

(4) declares that the above-mentioned person:

YES

NO

Was previously involved in the preparation of the procurement documents used in this award procedure, where this entailed a breach of the principle of equality of treatment including distortion of competition that cannot be remedied otherwise.

 

 

 

V – REMEDIAL MEASURES

If the person declares one of the situations of exclusion listed above, it must indicate measures it has taken to remedy the exclusion situation, thus demonstrating its reliability. This may include e.g. technical, organisational and personnel measures to prevent further occurrence, compensation of damage or payment of fines or of any taxes or social security contributions. The relevant documentary evidence which illustrates the remedial measures taken must be provided in annex to this declaration. This does not apply for situations referred in point (d) of this declaration.

VI – EVIDENCE UPON REQUEST

Upon request and within the time limit set by the contracting authority the person must provide information on natural or legal persons that are members of the administrative, management or supervisory body or that have powers of representation, decision or control, including legal and natural persons within the ownership and control structure and beneficial owners.

It must also provide the following evidence concerning the person itself and the natural or legal persons on whose capacity the person intends to rely, or a subcontractor and concerning the natural or legal persons which assume unlimited liability for the debts of the person:

For situations described in (a), (c), (d), (f), (g) and (h), production of a recent extract from the judicial record is required or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of establishment of the person showing that those requirements are satisfied.

For the situation described in point (b), production of recent certificates issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the person is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. Where any document described above is not issued in the country concerned, it may be replaced by a sworn statement made before a judicial authority or notary or, failing that, a solemn statement made before an administrative authority or a qualified professional body in its country of establishment.

The person is not required to submit the evidence if it has already been submitted for another award procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

VII – SELECTION CRITERIA

  1. declares that the above-mentioned person complies with the selection criteria applicable to it individually as provided in the tender specifications:

YES

NO

N/A

  1. It has the legal and regulatory capacity to pursue the professional activity needed for performing the contract as required in section 5.2.1 of the tender specifications;

 

 

 

  1. It fulfills the applicable economic and financial criteria indicated in section 5.2.2 of the tender specifications;

 

 

 

  1. It fulfills the applicable technical and professional criteria indicated in section 5.2.3 of the tender specifications.

 

 

 

 

 

  1.  if the above-mentioned person is the sole tenderer or the leader in case of joint tender, declares that:

YES

NO

N/A

  1. the tenderer, including all members of the group in case of joint tender and including subcontractors if applicable, complies with all the selection criteria for which a consolidated asseessment will be made as provided in the tender specifications.

 

 

 

     

 

VIII – EVIDENCE FOR SELECTION

The signatory declares that the above-mentioned person is able to provide the necessary supporting documents listed in the relevant sections of the tender specifications and which are not available electronically upon request and without delay.

The person is not required to submit the evidence if it has already been submitted for another procurement procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

The above-mentioned person must immediately inform the contracting authority of any changes in the situations as declared.

 

The above-mentioned person may be subject to rejection from this procedure and to administrative sanctions (exclusion or financial penalty) if any of the declarations or information provided as a condition for participating in this procedure prove to be false.

 

Full name                                                                                Date                                                                   Signature

 

 

 

 

 

Section 4

Evidence on selection criteria

If the supporting documents on the selection criteria are requested (see point 5.2 of the tender specifications), the tenderers shall complete the forms and/or submit the supporting documents listed here below.

Legal and regulatory capacity criteria

a)    Evidence on enrolment in a relevant professional or trade register, except for international organisations

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

 

Economic and financial capacity criteria

a)    Income statements (Profit and Loss Statement) for the last two financial years for which accounts have been closed.

Technical and professional capacity criteria

a)      List of references and / or clients' reference letters in the fields related to the painting service contracts performed during the past three calendar years indicated in point 2 specifying whether the contract has been carried out in a professional manner in compliance with the contractual terms.

 

 

HEADING

CONTRACT FOR SUPPLIES

NUMBER — EEAS-XXX- DELBWA -SUP-DIR-2020

1. The European Union (‘the Union’), represented by the European Union Delegation to The Republic of Botswana (‘the contracting authority’) represented for the purposes of signing this contract by Mr Jan Sadek, Head of Delegation

on the one part, and

[Full official name]

[Official legal form][1]

[Statutory registration number][2]

 [Full official address]

[VAT registration number]

[appointed as the leader of the group by the members of the group that submitted the joint tender]

 ([collectively] ‘the contractor’), represented for the purposes of the signature of this contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

 

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for supply contracts and the following annexes:

Annex I          Tender specifications (reference No [complete] of [insert date])

Annex II         Contractor’s tender (reference No [complete] of [insert date])

Annex III –    Model order form                   

 

which form an integral part of this contract (‘the contract’).

This contract sets out the obligations of the parties during and after the duration of this contract.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this contract. In all circumstances, in the event of contradiction between this contract and documents issued by the contractor, this contract prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

 

 

Order of priority of provisions

If there is any conflict between different provisions in this contract, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the contract.
  2. The provisions set out in the general conditions take precedence over those in the other annexes.
  3. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).]

Subject matter

The subject matter of the contract is [short description of subject].

Entry into force and duration

I.3.1    The contract enters into force on the date on which the last party signs it.

I.3.2    The performance of the contract cannot start before its entry into force.

I.3.3    The duration of the performance of the contract must not exceed [complete] months. Performance of the contract starts from [the date of entry into force of the contract] [insert date].

The period of performance of the contract may be extended only with the express written agreement of the parties before the expiration of such period.

I.3.4    The supplies must be delivered at the Residence of the Ambassador of the European Union.

The contractor must notify the contracting authority of the exact date of delivery at least [complete] days in advance.

Price

Price of the contract and maximum amount

The price payable under this contract excluding renewals and price revision is BWP  [amount in figures and in words].

Price revision index

Price revision is not applicable to this contract.

 

Payment arrangements

Pre-financing

Pre-financing is not applicable to this contract.

Interim payment

Interim payment is not applicable to this contract.

Payment of the balance

1. The contractor (or leader in the case of a joint tender) may claim the payment of the balance in accordance with Article II.20.6.

The contractor (or leader in the case of a joint tender) must send an invoice in BWP in paper format for payment due under the contract, as provided for in the tender specifications and accompanied by the following:

2. The contracting authority must approve the submitted documents or supplies and pay within 30 days from receipt of the invoice.

3. If the contracting authority has observations to make, it must send them to the contractor (or leader in the case of a joint tender) and suspend the time limit for payment in accordance with Article II.20.7.

The contractor (or leader in the case of a joint tender) has [complete] days to submit additional information or corrections or new supplies if the contracting authority requires it.

***

Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations, the European Union is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

Guarantees

Guarantees are not applicable to this contract.

Performance guarantee

Performance guarantee is not applicable to this contract.

Retention money guarantee

Retention money guarantee is not applicable to this contract.

 

 

I.7 BANK ACCOUNT

Payments must be made to the contractor’s (or leader’s in the case of a joint tender) bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

 

I.8 Communication details

For the purpose of this contract, communications must be sent to the following addresses:

Contracting authority:

Delegation of the European Union to The Republic of Botswana

Robinson Road, Plot 758

Gaborone

 

Email: Delegation-Botswana@eeas.europa.eu

 

Contractor (or leader in the case of a joint tender):

[Full name]

[Function]

[Company name]

[Full official address]

Email: [complete]

I.9  data controller

For the purpose of Article II.9, the data controller is the Head of the Delegation of the European Union to The Republic of Botswana.

I.10  termination by either party

Either party may, terminate the contract by sending formal notification to the other party with one month written notice.

If the contract is terminated:

(a)        neither party is entitled to compensation;

(b)        the contractor is entitled to payment only for the supplies delivered before termination takes effect.

The second, third and fourth paragraphs of Article II.17.4 apply.

I.11  Applicable law and settlement of disputes

I.11.1  The contract is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.11.2  The courts of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the contract.

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature[s]: _______________________

For the contracting authority,

[forename/surname/position]

 

Signature[s]:_____________________

Done at [place], [date]

Done at [place], [date]

In duplicate in English.

 

 

Definitions

For the purpose of this contract, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the performance of the contract, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective performance of the contract by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the contract;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for supplies, electronic specific contracts, and electronic delivery of the certificate of conformity or electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the contract. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Performance of the contract’: the execution of tasks and delivery of the purchased supplies by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to perform the contract;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to perform the contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

Severability

Each provision of this contract is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the contract. This does not affect the legality, validity or enforceability of any other provisions of the contract, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The contract must be interpreted as if it had contained the substitute provision as from its entry into force.

Delivery of supplies

II.4.1   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[3].

II.4.2   All periods specified in the contract are calculated in calendar days, unless otherwise specified.

II.4.3   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.4   The contractor is responsible for the personnel who perform the contract and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the supplies does not result in any employment or contractual relationship with the contracting authority.

II.4.5   The contractor must ensure that the personnel performing the contract and any future replacement personnel possess the professional qualifications and experience required to provide the supplies, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.6   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the supplies; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the supplies resulting from the replacement of personnel.

II.4.7   The contractor must record and report to the contracting authority any problem that affects its ability to deliver the supplies. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

II.4.8   Delivery

  1. Time allowed for delivery

The time allowed for delivery is calculated in accordance with Article I.3.

  1. Date, time and place of delivery

The Contracting Authority must be notified in writing of the exact date of delivery within the period indicated in Article I.3. All deliveries must be made at the agreed place of delivery during the hours indicated in Article I.3.

The contractor must bear all costs and risks involved in delivering the supplies to the place of delivery.

  1. Consignment note

Each delivery must be accompanied by a consignment note in duplicate, duly signed and dated by the contractor or its carrier, giving the contract number and particulars of the supplies delivered. One copy of the consignment note must be countersigned by the contracting authority and returned to the contractor or to its carrier.

II.4.9   Certificate of conformity

Signature of the consignment note by the contracting authority, as provided for in point (c) of Article II.4.10 is simply an acknowledgment of the fact that that the delivery took place and in no way implies conformity of the supplies with the contract.

Conformity of the supplies delivered must be evidenced by the signature of a certificate to this effect by the contracting authority no later than one month after the date of delivery, unless otherwise specified in the special conditions or in the tender specifications.

Conformity must be declared only where the conditions laid down in the contract are satisfied and the supplies conform to the tender specifications.

If, for reasons attributable to the contractor, the contracting authority is unable to accept the supplies, the contractor must be notified in writing at the latest by the deadline for conformity.

II.4.10 Conformity of the supplies delivered with the contract

The supplies delivered by the contractor to the contracting authority must be in conformity in quantity, quality, price and packaging with the contract.

The supplies delivered must:

  1. correspond to the description given in the tender specifications and possess the characteristics of the supplies provided by the contractor to the contracting authority as a sample or model;
  2. be fit for any specific purpose required of them by the contracting authority and made known to the contractor at the time of conclusion of this contract and accepted by the contractor;
  3. be fit for the purposes for which supplies of the same type are normally used;
  4. demonstrate the high quality standards and performance which are normal in supplies of the same type and which the contracting authority can reasonably expect, given the nature of the supplies and taking into account any public statements on the specific characteristics of the supplies made by the contractor, the producer or its representative, particularly in advertising or on labelling; in accordance with the state of the art in the industry and the provisions of this contract, in particular the tender specifications and the terms of its tender.
  5. be packaged according to the usual method for supplies of the same type or, failing this, in a way designed to preserve and protect them.

II.4.11 Remedy

The contractor must be liable to the contracting authority for any lack of conformity which exists at the time the supplies are verified.

In case of lack of conformity, without prejudice to Article II.14 on liquidated damages applicable to the total price of the supplies concerned, the contracting authority is entitled:

  1. either to have the supplies brought into conformity, free of charge, by repair or replacement;
  2. or to have an appropriate reduction made in the price.

Any repair or replacement must be completed within a reasonable time and without any significant inconvenience to the contracting authority, taking account of the nature of the supplies and the purpose for which they are required by the contracting authority.

The term ‘free of charge’ in paragraph (a) refers to the costs incurred to bring the supplies into conformity, particularly the cost of postage, labour and materials.

II.4.12 Assembly

If required by the tender specifications, the contractor must assemble the supplies delivered within a period of one month unless otherwise specified in the special conditions.

Any lack of conformity resulting from incorrect installation of the supplies must be deemed to be equivalent to lack of conformity of the supplies if installation forms part of the contract and the supplies were installed by the contractor or under its responsibility. This applies equally if the product was to be installed by the contracting authority and was incorrectly installed owing to a shortcoming in the installation instructions.

II.4.13 Services provided to supplies

If required by the tender specifications, services to supplies must be provided accordingly.

II.4.14 General provisions concerning supplies

  1. Packaging

The supplies must be packaged in strong boxes or crates or in any other way that ensures that the contents remain intact and prevents damage or deterioration. Packaging, pallets, etc., including contents, must not weigh more than 500 kg.

Unless otherwise specified in the special conditions or in the tender specifications, pallets must be considered as one‑way packaging and must not be returned. Each box must be clearly labelled with the following information:

  • name of contracting authority and address for delivery;
  • name of contractor;
  • description of contents;
  • date of delivery;
  • number and date of contract;
  • EC code number of article.
  1. Guarantee

The supplies must be guaranteed against all defects in manufacture or materials for two years from the date of delivery, unless provision is made for a longer period in the tender specifications.

The contractor must guarantee that any permits and licences required for manufacturing and selling the supplies have been obtained.

The contractor must replace at its own expense, within a reasonable time limit to be determined by agreement between the parties, any items which become damaged or defective in the course of normal use during the guarantee period.

The contractor is responsible for any conformity defect which exists at the time of delivery, even if this defect does not appear until a later date.

The contractor is also responsible for any conformity defect which occurs after delivery and is ascribable to non-compliance with its obligations, including failure to provide a guarantee that, for a certain period, supplies used for the purposes for which they are normally used or for a specific purpose will preserve their qualities or characteristics as specified.

If part of an item is replaced, the replacement part must be guaranteed under the same terms and conditions for a further period of the same duration as that specified above.

If a defect is found to originate in a systematic flaw in design, the contractor must replace or modify all identical parts incorporated in the other supplies that are part of the order, even though they may not have been the cause of any incident. In this case, the guarantee period must be extended as stated above.

Communication between the parties

Form and means of communication

Any communication of information, notices or documents under the contract must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

Submission of e-documents via e-PRIOR

If provided for in the special conditions, the exchange of electronic documents (e-documents) such as invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).

The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.

In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.

If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.

If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.

When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.

Validity and date of e-documents

The parties agree that any e-document, including related attachments exchanged via e-PRIOR:

  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.

The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.

If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.

In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.

When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.

Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of performance of the contract.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the performance of the contract. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of performance of the contract, including in the event of subcontracting, but only to an amount not exceeding three times the total amount of the contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the performance of the contract, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.

If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the performance of the contract, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the performance of the contract.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of performance of the contract, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

Conflict of interests and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the performance of the contract. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2. any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the performance of the contract, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

Confidentiality

II.8.1   The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally relating to the performance of the contract and identified in writing as confidential.

II.8.2   Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents, and in any case with due diligence;

(c)   not disclose directly or indirectly confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligation set out in this Article are binding on the contracting authority and the contractor during the performance of the contract and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than in breach of the confidentiality obligation

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the performance of the contract, a commitment that they will comply with this Article .At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

Processing of personal data

II.9.1   Any personal data included in the contract must be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. Such data must be processed by the data controller solely for the purposes of the performance, management and monitoring of the contract. This does not affect its possible transmission to the bodies entrusted with monitoring or inspection tasks in application of Union law.

II.9.2   The contractor has the right to access its personal data and the right to rectify any such data. The contractor should address any queries concerning the processing of its personal data to the data controller.

II.9.3   The contractor has right of recourse at any time to the European Data Protection Supervisor.

II.9.4   If the contract requires the contractor to process any personal data, the contractor may act only under the supervision of the data controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

II.9.5   The contractor must grant personnel access to the data to the extent strictly necessary for the performance, management and monitoring of the contract.

II.9.6   The contractor must adopt appropriate technical and organisational security measures giving due regard to the risks inherent in the processing and to the nature of the personal data concerned in order to:

(a)   prevent any unauthorised person from gaining access to computer systems processing personal data, and especially:

(i)         unauthorised reading, copying, alteration or removal of storage media;

(ii)        unauthorised data inputting, as well as any unauthorised disclosure, alteration or erasure of stored personal data;

(iii)       unauthorised use of data-processing systems by means of data transmission facilities;

(b)   ensure that authorised users of a data-processing system can access only the personal data to which their access right refers;

(c)   record which personal data have been communicated, when and to whom;

(d)  ensure that personal data being processed on behalf of third parties can be processed only in the manner prescribed by the contracting authority;

(e)   ensure that, during communication of personal data and transport of storage media, the data cannot be read, copied or erased without authorisation;

(f)   design its organisational structure in such a way that it meets data protection requirements.

Subcontracting

II.10.1 The contractor must not subcontract and have the contract performed by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2 Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the performance of this contract.

II.10.3 The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this contract, particularly those under Article II.8 and II.22.

II.10.4 The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.17.1.

Amendments

II.11.1 Any amendment to the contract must be made in writing before all contractual obligations have been fulfilled.

II.11.2 Any amendment must not make changes to the contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers.

Assignment

II.9.1   The contractor must not assign any of the rights and obligations arising from the contract, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.9.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

Force majeure

II.13.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.10.3   A party is not liable for any delay or failure to perform its obligations under the contract if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the supplies actually delivered and which obtain a certificate of conformity.

II.13.3   The parties must take all necessary measures to limit any damage due to force majeure.

Liquidated damages

Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this contract, the contracting authority may claim liquidated damages for each day of delay using the following formula:        

0.3 x (V/d)

where

V is the price of the relevant purchase or supply;

d is the duration specified in the contract for delivery of the relevant purchase or supply or, failing that, the duration of performance of the contract specified in Article I.3 expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.15.

Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the supplies within the applicable time limits set out in this contract.

II.14.4. Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.17.

Reduction in price

Quality standards

If the contractor fails to deliver the supply in accordance with the contract (‘unperformed obligations’) or if it fails to deliver the supply in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a document or deliver a certificate of conformity for supply as defined in Article I.5 after the contractor has submitted the required additional information, correction or new supply.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.14.

Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount.

Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.17.

Suspension of the performance of the contract

Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the performance of the contract.

The contractor must immediately notify the contracting authority about the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the performance of the contract.

The contractor must notify the contracting authority as soon as it is able to resume performance of the contract, unless the contracting authority has already terminated the contract.

Suspension by the contracting authority

The contracting authority may suspend the performance of the contract or any part of it:

(a)        if the procedure for awarding the contract or the performance of the contract proves to have been subject to substantial errors, irregularities or fraud;

(b)        in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

(a)        it is lifting the suspension; or

(b)        it intends to terminate the contract under Article II.17.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the contract.

Termination of the contract

Grounds for termination by the contracting authority

The contracting authority may terminate the contract in the following circumstances:

(a)        if provision of the supplies under the contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;

(b)        if the contractor is unable, through its own fault, to obtain any permit or licence required for performance of the contract;

(c)        if the contractor does not perform the contract in accordance with the tender specifications or is in breach of another substantial contractual obligation.

(d)       if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[4];

(e)        if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation;

(f)        if the procedure for awarding the contract or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud;

(g)        if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;

(h)        if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;

(i)         if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the performance of the contract or substantially modify the conditions under which the contract was initially awarded;

(j)           in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;

Grounds for termination by the contractor

The contractor may terminate the contract if:

(a)          it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the contract or the performance of the contract;

(b)          the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to perform the contract as provided for in the tender specifications.

Procedure for termination

A party must formally notify the other party of its intention to terminate the contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d) and (g) to (i) of Article II.17.1 and in Article II.17.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.17.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the delivery of the supplies to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the delivery of the supplies. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the contract including the cost of appointing another contractor to provide or complete the supplies, unless the damage was caused by the situation specified in Article II.17.1 (j) or in Article II.17.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.17.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report and any invoice required for supplies that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the contract with each member of the group separately on the basis of points (d), (e) or (g) of Article II.17.1, under the conditions set out in Article II.11.2.

Invoices, value added tax and e-invoicing

Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the contract reference.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for performance of the contract are exempt from taxes and duties, including VAT.

E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

Price revision

A price revision is not applicable to this contract.

 

Payments and guarantees

Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

Currency

Payments are made in euros or in the currency provided for in Article I.7.

 

 

Conversion

The contracting authority makes any conversion between the euro and another currency at the daily euro exchange rate published in the Official Journal of the European Union, or failing that, at the monthly accounting exchange rate, as established by the European Commission and published on the website indicated below, applicable on the day when it issues the payment order.

The contractor makes any conversion between the euro and another currency at the monthly accounting exchange rate, established by the Commission and published on the website indicated below, applicable on the date of the invoice.

http://ec.europa.eu/budget/contracts_grants/info_contracts/inforeuro/inforeuro_en.cfm

Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank,
  2. the contractor bears the costs of receipt charged by its bank,
  3. the party causing repetition of the transfer bears the costs for repeated transfer.

Pre-financing, performance and money retention guarantees

If, as provided for in Article I.6, a financial guarantee is required for the payment of pre-financing, as performance guarantee or as retention money guarantee, it must fulfil the following conditions:

  1. the financial guarantee is provided by a bank or a financial institution approved by the contracting authority or, at the request of the contractor and with the agreement of the contracting authority, by a third party;
  2. the guarantor stands as first-call guarantor and does not require the contracting authority to have recourse against the principal debtor (the contractor).

The contractor bears the cost of providing such guarantee.

Pre-financing guarantees must remain in force until the pre-financing is cleared against interim payments or payment of the balance. Where the payment of the balance takes the form of a debit note, the pre-financing guarantee must remain in force for three months after the debit note is sent to the contractor. The contracting authority must release the guarantee within the following month.

Performance guarantees cover compliance with substantial contractual obligations until the contracting authority has given its final approval for the supply. The performance guarantee must not exceed 10 % of the total price of the contract. The contracting authority must release the guarantee fully after final approval of the supply, as provided for in the contract.

Retention money guarantees cover full delivery of the supplies in accordance with the contract including during the contract liability period and until their final approval by the contracting authority. The retention money guarantee must not exceed 10 % of the total price of the contract. The contracting authority must release the guarantee after the expiry of the contract liability period as provided for in the contract.

The contracting authority must not request a retention money guarantee where it has requested a performance guarantee.

Interim payments and payment of the balance

Interim payments are not applicable to this contract.

Payment of the balance may take the form of recovery.

Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.5 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the contract;
  2. because the contractor has not produced the appropriate supplies or documents or
  3. because the contracting authority has observations on the supplies or documents submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of a joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the contract in accordance with Article II.17.1(c).

Interest on late payment

On expiry of the payment periods specified in Article I.5, the contractor (or leader in the case of a joint tender) is entitled to interest on late payment at the rate applied by the European Central Bank for its main refinancing operations in euros (the reference rate), plus eight points. The reference rate is the rate in force, as published in the C series of the Official Journal of the European Union on the first day of the month in which the payment period ends.

Suspension of the payment period as provided for in Article II.20.7 is not considered as a giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.20.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

Recovery

II.21.1. If an amount is to be recovered under the terms of the contract, the contractor must repay the contracting authority the amount in question.

II.21.2. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union or by the European Atomic Energy Community;
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.

II.21.3 Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.20.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

II.21.4. Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.21.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.21.2.

Checks and audits

II.22.1.The contracting authority and the European Anti-Fraud Office may check or require an audit on the performance of the contract. This may be carried out either by OLAF’s own staff or by any other outside body authorised to do so on its behalf.

Such checks and audits may be initiated at any moment during the provision of the supplies and up to five years starting from the payment of the balance.

The audit procedure is initiated on the date of receipt of the relevant letter sent by the contracting authority. Audits are carried out on a confidential basis.

II.22.2.The contractor must keep all original documents stored on any appropriate medium, including digitised originals if authorised under national law, for a period of five years starting from the payment of the balance.

II.22.3.The contractor must grant the contracting authority’s staff and outside personnel authorised by the contracting authority the appropriate right of access to sites and premises where the contract is performed and to all the information, including information in electronic format, needed to conduct such checks and audits. The contractor must ensure that the information is readily available at the moment of the check or audit and, if so requested, that information is handed over in an appropriate format.

II.22.4.On the basis of the findings made during the audit, a provisional report is drawn up. The contracting authority or its authorised representative must send it to the contractor, who has 30 days following the date of receipt to submit observations. The contractor must receive the final report within 60 days following the expiry of the deadline to submit observations.

On the basis of the final audit findings, the contracting authority may recover all or part of the payments made in accordance with Article II.21 and may take any other measure which it considers necessary.

II.22.5.In accordance with Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspection carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities and Regulation (EU, Euratom) No 883/2013 of the European Parliament and the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office, the European Anti-Fraud Office may carry out investigations, including on‑the‑spot checks and inspections, to establish whether there has been fraud, corruption or any other illegal activity under the contract affecting the financial interests of the Union. Findings arising from an investigation may lead to criminal prosecution under national law.

The investigations may be carried out at any moment during the performance of the contract and up to five years starting from the payment of the balance.

II.22.6 The Court of Auditors has the same rights as the contracting authority, particularly right of access, for the purpose of checks and audits.

 

 

The following annexes shall be completed by the tenderer and send as part of its tender. The annexes shall be completed with tenderer's replies. The tenderers shall insert in the form itself the specific references to all the documents included in its tender.

 

Section 5

Technical tender

Table of compliance with the requirements in the procurement documents

EEAS-DELBWA………-SUP-FWC 2020

Supply and installation of laminated wooden flooring

requirement

Yes / No

Tenderer's reply and or comments

Will there be proper preparation of all surfaces like removal of old tiles prior to placing the wooden flooring?

 

 

Will all cracks and holes on the floor be filled and made smooth prior to placing the wooden flooring?

 

 

Does all equipment and material comply with Botswana standards? 

 

 

Is the proposed material of a high, durable quality and of a well-known brand?  (Specify the brand in the comments)

 

 

At completion, will work be touched up and restored where damaged, defaced or defective?

 

 

Does the tenderer have the necessary professional and experienced staff to perform the contract?

 

 

Specify the warranty on used material:

 

 

Are all documents mentioned in the Selection Criteria (under point 4.2.1 – 4.2.3) included in your tender?

 

 

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                                       Date:]

 

 

 

 

Annex A -Financial tender

Price schedule over the duration of the contract in BWP

Item

Description

Type of unit

Number of units over the duration of the contract

Unit price in BWP 

 

Total price in BWP   

 

1

2

3

4

5

6 = 4 x 5

A

807 sqm

HDF (high density conifer fibre board) impregnated with wax treatment

Preferred color:

Sun bleached oak or similar

 

 

 

B

150 sqm

Rigid core vinyl SPC (stone plastic composite)

Suitable for bathrooms and kitchen

Preferrred color: sunstone or similar

 

 

 

C

Full installation for the whole area of floors

 

 

 

 

D

 

 

 

 

 

E

 

 

 

 

 

TOTAL

 

 

 

Please note that the prices should be quoted free of all duties, taxes and other charges including VAT, as the Delegation of the European Union to the Republic of Botswana is exempt from such charges.

 

Prices must be all-inclusive ( = including preparation, materials i.e. paint, spackle, equipment, cleaning, all operational costs, administrative costs, logistical costs and transport costs, etc.)

 

 

Name: …………………………….                                  Date: ………………………………

 

 

Title: ………………………………                                  Signature: …………………………

 

Name of tenderer:

Name of the legal representative of the tenderer:

Date:                                                               Signature:

 

 

 

 

 

[3]    OJ L 94 of 28.03.2014, p. 65

[4]               Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

 

EUROPEAN UNION

DELEGATION TO THE REPUBLIC OF BOTSWANA

 

 

Head of Delegation

 

 

 

Gaborone,

Ares(2020)

 

 

 

 

 

Dear Sir/Madam,

 

Subject:         EEAS-DELBWA-01/01/2020-SUP-FWC

                  SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

 

  1. The European Union Delegation to the Republic of Botswana invites you to submit a tender for the contract referred to above. The procurement documents consist in this invitation letter, the tender specifications with their annexes, the draft contract and the instructions on the procedure "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en
  2. If you are interested in this contract, you should submit a tender in one of the official languages of the European Union.

You must submit your tender exclusively on paper in one original and two (2) copies.  The time limit for submission of the tender is 31 January 2020 @ 12:00.  You must use one of the means of submission listed below. Submission is understood as the time at which the tenderer hands over the tender to the post office or courier service or at the reception of the Delegation.

Means of submission

Time limit

Evidence

Address for delivery

Post

Courier

 

24:00

 

Postmark

Deposit slip of courier service

CALL FOR TENDERS

EEAS-DELBWA-…….-SER/SUP-FWC 2020

SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

EU Delegation to the Republic of Botswana

For the attention of the Head of Administration

Robinson Road, Plot 758

Gaborone

 

P.O Box 1253

Gaborone

In person (hand delivery)

13:00 local time in Botswana

Proof of receipt, signed and dated by the agent at the reception of the Delegation

Hand delivery can be received from 08.00 to 16.00 Monday to Thursdays, from 08.00 to 12.00 on Fridays. The Delegation is closed on Saturdays, Sundays and official holidays of the contracting authority.

 

  1. The period of validity of the tender, during which tenderers may not modify the terms of their tenders in any respect, is three (3)  months from the date indicated in point
  2. Before the deadline of submission of the tender, any request for additional information must be made in writing to delegation-botswana-tenders@eeas.europa.eu

The contracting authority is not bound to reply to requests for additional information received less than five working days before the date of receipt of tenders indicated in point 3.

For more details, please refer to the document "Instructions applicable to negotiated procedure for (very) low and middle-value contracts ".

  1. An on-site visit is planned on 21 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at delegation-botswana-tenders@eeas.europa.eu at the latest 4 calendar days prior to the visit to know the time that is allocated to each of them.

 

 

 

Jan Sadek
Authorizing Officer by Sub-Delegation

 

Annexes:

- Tender specifications, Annex I

- Technical specifications, Annex II

- Draft service framework contract

 

 

 

TENDER SPECIFICATIONS

No EEAS-DELBWA-01/01/2020-SUP-DIR

SUPPLY AND INSTALLATION OF LAMINATED WOOD FLOORING

 

Supply Framework Contract

NEGOTIATED PROCEDURE

  1. Introduction

The contracting authority is the European Union (hereinafter referred to as "contracting authority"), represented by the Head the Delegation of the European Union in The Republic of Botswana or its duly authorized representative.

These tender specifications and the tender submitted by the awardee of the contract will be annexed to the contract and therefore be binding on the contracting parties during the implementation of the contract.

In addition, the instructions as stipulated in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" (available at the following link: https://eeas.europa.eu/headquarters/headquarters-homepage/8989_en are applicable to this tender unless otherwise mentioned in these tender specifications.

  1. subject of the contract
  • The contractor must provide the human and material resources necessary to provide the service in the non‑exhaustive list below:
  • supply of 807 sqm of H.D.F. (high density conifer fibre board) impregnated with wax treatment, preferred color: sun bleached oak or similar
  • supply of 150 sqm of rigid core vinyl SPC (Stone plastic composite) suitable for bathrooms and kitchen, preferred color: Sunstone or similiar
  • full installation including supply of surface underlay and fitting of skirting detail
  • warranty of a minimum of 15 years
  •  

The place of performance is the Residence of the European Union Ambassador.

  1. joint tender

The provisions are detailed in the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts" as mentioned under point 1 above.

  1. eligibility of economic operators
    1. Access to public procurement

In addition to the provisions at point 4.1 of the document called "Instructions applicable to negotiated procedure for (very) low and middle-value contracts", this tender is also exceptionally open on equal terms to all natural and legal persons in The Republic of Botswana.

    1. Non-exclusion and selection of economic operators

Tenderers shall provide a declaration on exclusion and selection criteria attached to these tender specifications dully filled in, signed and dated by the legally authorised representative.

The declaration on exclusion and selection criteria shall be provided by each member of the group in case of joint tenders.

All the tenderers shall provide with their tenders the documents mentioned as supporting documents on selection criteria in the declaration on their honour and in the "Tender form" annexed to these tender specifications.

The tenderers shall meet the selection criteria listed here below.

      1. Legal and regulatory capacity criteria
  1. Authorisation to provide the services at the place of performance of the contract.

Minimum capacity level required:

The tenderer shall be authorised to provide the services being subject to this contract at the place of performance of this contract. The relevant certificate must be valid on the date of the deadline for the submission of requests to participate.

Supporting document(s)/evidence requested:

  1. Evidence on enrolment in a relevant professional or trade register, except for international organisations.

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

Before the signature of the contract, the validity of the certificate may be verified again.

      1. Economic and financial capacity criteria
  1. Turnover

Minimum capacity level required:

  1. The average annual turnover for the last two financial years for which accounts have been closed.

Supporting document(s)/evidence requested:

Profit and loss accounts (Income statement) for the last two financial years for which accounts have been closed.

 

      1. Technical and professional capacity criteria
  1. Previous contracts

Minimum capacity level(s) required:

1. At least three contracts in the fields related to the painting services indicated in point 2 during the last three calendar years.

Supporting document(s)/evidence requested:

In order to meet the minimum capacity level(s) required mentioned above, the tenderer must present a list of references and/or client's reference letters relevant to the painting service contracts performed during the past three calendar years.

The criterion is applied to:

  1. Evaluation of tenders on the basis of the award criteria

The technically compliant tenders are evaluated in order to award the contract to the tender offering the lowest price. In other words, the contract is awarded to the tender that satisfies the requirements set in the technical specifications and offers the lowest price.

    1. Technical compliance

The technical compliance will be evaluated based on the "Table of compliance with the requirements in the procurement documents" (refer to the "Tender form"). The tenderers shall return the table duly completed, dated and signed.

    1. Financial tender

Only the financial tenders submitted by those tenderers who have submitted technically compliant tenders as indicated above will be considered for the award.

The prices for the tender must be tendered:

  • in BWP;
  • free of all duties, taxes and other charges, including VAT, as the European Union is exempt from such charges under the Vienna Convention;
  • all inclusive. This means that, unless otherwise mentioned in these tender specifications, prices tendered for shall include all the costs to be incurred by the tenderers to fully implement the contract;
  • using the unit price schedule (Annex A).
  1. Content of the tender

The tenderer shall duly complete and sign the "Tender form" annexed to these tender specifications and submit all the documents requested in it.

The contracting authority reserves the right to decide whether to request or not any missing documents not provided by the tenderers.

  1. Annexes

Annex I: Technical specifications

Annex II:            Tender form

  • Section 1:            Presentation of the tenderer
  • Section 2:            Legal entity form and Financial Identification Form
  • Section 3:            Declaration on honour on exclusion and selection criteria
  • Section 4:            Evidence on selection criteria
  • Section 5 :          Technical tender – Table of compliance with the requirements in the procurement documents
  • Section 6 :           Financial tender

 Annexes Annex I Technical specifications

The contracting authority intends to procure the provision of painting services to be rendered to the EU Delegation.  All the requirements in the following technical specifications are considered to be minimum requirements and therefore not subject to the negotiation, if any, unless specified for any particular aspects.

  1. Scope of Work

The following services are required:

  • supply of 807 sqm of H.D.F. (high density conifer fibre board) impregnated with wax treatment, preferred color: sun bleached oak or similar
  • supply of 150 sqm of rigid core vinyl SPC (Stone plastic composite) suitable for bathrooms and kitchen, preferred color: sunstone or similar
  • full installation including supply of surface underlay and fitting of skirting detail
  • warranty of a minimum of 15 years.
  1. Equipment and materials

Equipment and material will be supplied by the contractor.

  • All equipment and material must comply with the standards of the The Republic of Botswana.
  • All material shall be of a very good and proven durable quality

 

  1. Specific Requirements

 

  1. General Workmanship

 

  • All existing porcelain floor tiles in the various areas need to be removed and the surface prepared accordingly.
  • All work shall be done in a neat and clean manner
  • Wooden flooring has to be placed according to the manufacturer's recommendations.
  • The finished work shall be free from scratches on the material; skirting board shall be placed without leaving a gap or opening.
  • All surfaces shall be left clean at completion of the job

 

 

 

  1. Conduct of Operations
  • The Contractor shall conduct the requested works in a cooperative manner with the Contracting Authority and shall interfere as little as possible with the normal operations and functioning of the Residence and the tenants of the properties.
  • Whether these spaces are occupied or not, the work of the Contractor is to be pursued diligently to the end and each area is to be finished at the earliest possible moment. Work shall be done in areas as directed by the Contracting Authority so that any inconvenience is kept to a minimum.
  1. Protection
  • The Contractor shall be responsible for any damage to other work. Any materials which in the opinion of the Contracting Authority have become damaged to such an extent that they cannot be restored to their original condition shall be replaced at the Contractor's expense.
  1. Staff

Staff must have

  • no criminal record;
  • a polite, professional and punctual behaviour;
  • a very good sense of organisation, planning and time-keeping.
  1. Warranty

The tenderer must indicate the warranty on the works.

 Annex II Tender form

Section 1

Presentation of the tenderer

  EEAS-DELBWA………-SUP-FWC 2020

Supply and installation of laminated wood flooring

 

Official name of legal entity

State of the headquarters (legal persons) or of the domicile (natural persons) of the legal entity

Main registration number

Leader

 

 

 

Member

 

 

 

[insert as many rows as necessary]

 

 

 

 

CONTACT PERSON FOR THIS TENDER

Name

 

Position

 

Address

 

e-mail

 

 

 

Name(s) and signature(s) of the legal representative(s) of the tenderer*:

*in case of joint tender, the form shall be signed by the legal representative of each member of the group as indicated above under "Tenderer".

 

Stamp, date and place

Section 2

Legal entity form

 

Please submit a signed Legal Entity Form with its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/legal_entities/legal_entities_en.cfm .

When the tenderer is a legal person, a legible copy of the notice of appointment of the persons authorised to represent the tenderer in dealings with third parties and in legal proceedings, or a copy of the publication of such appointment if the legislation which applies to the legal entity concerned requires such publication. Any delegation of this authorisation to another representative not indicated in the official appointment must be evidenced. When the tenderer is a natural person, a proof of registration on a professional or trade register or any other official document showing the registration number. The legally constituted consortium must present its own Legal Entity Form which is different from the Legal Entity Form of each individual member of the group;

 

Financial identification form

Please submit a signed financial identification form and its supporting evidence. The form is attached and available at

http://ec.europa.eu/budget/contracts_grants/info_contracts/financial_id/financial_id_en.cfm, (bank account file - BAF). Even in case of joint tenders, one form must be submitted;

 

 

 

Section 3

Declaration on honour on exclusion criteria and selection criteria

The undersigned ……………………….... [name of the signatory of this form], representing:

(only if the candidate is a natural person) himself or herself

(only if the candidate is a legal person) the following legal person:

 

ID or passport number:

 

(‘the person’)

Full official name:

Official legal form:

Statutory registration number:

Full official address:

VAT registration number:

 

(‘the person’)

 

The person is not required to submit the declaration on exclusion criteria if the same declaration has already been submitted for the purposes of another award procedure of the same contracting authority, provided the situation has not changed, and that the time that has elapsed since the issuing date of the declaration does not exceed one year.

In this case, the signatory declares that the person has already provided the same declaration on exclusion criteria for a previous procedure and confirms that there has been no change in its situation:

Date of the declaration

Full reference to previous procedure

 

 

 

I – Situation of exclusion concerning the person

  1.  declares that the above-mentioned person is in one of the following situations:

YES

NO

  1. it is bankrupt, subject to insolvency or winding-up procedures, its assets are being administered by a liquidator or by a court, it is in an arrangement with creditors, its business activities are suspended or it is in any analogous situation arising from a similar procedure provided for under Union or national law;

 

 

  1. it has been established by a final judgement or a final administrative decision that the person is in breach of its obligations relating to the payment of taxes or social security contributions in accordance with the applicable law;

 

  1. it has been established by a final judgement or a final administrative decision that the person is guilty of grave professional misconduct by having violated applicable laws or regulations or ethical standards of the profession to which the person belongs, or by having engaged in any wrongful conduct which has an impact on its professional credibity where such conduct denotes wrongful intent or gross negligence, including, in particular, any of the following:

 

(i) fraudulently or negligently misrepresenting information required for the verification of the absence of grounds for exclusion or the fulfilment of eligibility selection criteria or in the performance of a contract or an agreement;

 

 

(ii) entering into agreement with other persons with the aim of distorting competition;

 

 

(iii) violating intellectual property rights;

 

 

(iv) attempting to influence the decision-making process of the contracting authority during the award procedure;

 

 

(v) attempting to obtain confidential information that may confer upon it undue advantages in the award procedure;

 

 

  1. it has been established by a final judgement that the person is guilty of the following:

 

(i) fraud, within the meaning of Article 3 of Directive (EU) 2017/1371 and Article 1 of the Convention on the protection of the European Communities' financial interests, drawn up by the Council Act of 26 July 1995;

 

 

(ii) corruption, as defined in Article 4(2) of Directive (EU) 2017/1371 or active corruption within the meaning of Article 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, drawn up by the Council Act of 26 May 1997, or conduct referred to in Article 2(1) of Council Framework Decision 2003/568/JHA, as well as corruption as defined in the other applicable laws;

 

 

(iii) conduct related to a criminal organisation, as referred to in Article 2 of Council Framework Decision 2008/841/JHA;

 

 

(iv) money laundering or terrorist financing, within the meaning of Article 1(3), (4) and (5) of Directive (EU) 2015/849 of the European Parliament and of the Council;

 

 

(v) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Council Framework Decision 2002/475/JHA, respectively, or inciting, aiding, abetting or attempting to commit such offences, as referred to in Article 4 of that Decision;

 

 

(vi) child labour or other offences concerning trafficking in human beings as referred to in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council;

 

 

  1. it has shown significant deficiencies in complying with the main obligations in the performance of a contract or an agreement financed by the Union’s budget, which has led to its early termination or to the application of liquidated damages or other contractual penalties, or which has been discovered following checks, audits or investigations by a contracting authority, the European Anti-Fraud Office (OLAF) or the Court of Auditors;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has committed an irregularity within the meaning of Article 1(2) of Council Regulation (EC, Euratom) No 2988/95;

 

 

  1. it has been established by a final judgment or final administrative decision that the person has created an entity under a different jurisdiction with the intent to circumvent fiscal, social or any other legal obligations in the jurisdiction of its registered office, central administration or principal place of business.

 

 

  1. (only for legal persons) it has been established by a final judgment or final administrative decision that the person has been created with the intent provided for in point (g).

 

 

  1. for the situations referred to in points (c) to (h) above the person is subject to:
  1. facts established in the context of audits or investigations carried out by the European Public Prosecutor's Office after its establishment, the Court of Auditors, the European Anti-Fraud Office (OLAF) or the internal auditor, or any other check, audit or control performed under the responsibility of an authorising officer of an EU institution, of a European office or of an EU agency or body;
  2. non-final judgements or non-final administrative decisions which may include disciplinary measures taken by the competent supervisory body responsible for the verification of the application of standards of professional ethics;
  3.  facts referred to in decisions of entities or persons being entrusted with EU budget implementation tasks;
  4. information transmitted by Member States implementing Union funds;
  5. decisions of the Commission relating to the infringement of Union competition law or of a national competent authority relating to the infringement of Union or national competition law; or
  6. decisions of exclusion by an authorising officer of an EU institution, of a European office or of an EU agency or body.

 

 

II – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS WITH POWER OF REPRESENTATION, DECISION-MAKING OR CONTROL OVER THE LEGAL PERSON AND BENEFICIAL OWNERS

Not applicable to natural persons, Member States and local authorities

  1. declares that a natural or legal person who is a member of the administrative, management or supervisory body of the above-mentioned legal person, or who has powers of representation, decision or control with regard to the above-mentioned legal person (this covers e.g. company directors, members of management or supervisory bodies, and cases where one natural or legal person holds a majority of shares), or a beneficial owner of the person (as referred to in point 6 of article 3 of Directive (EU) No 2015/849) is in one of the following situations:

YES

NO

N/A

Situation (c) above (grave professional misconduct)

 

 

 

Situation (d) above (fraud, corruption or other criminal offence)

 

 

 

Situation (e) above (significant deficiencies in performance of a contract )

 

 

 

Situation (f) above (irregularity)

 

 

 

Situation (g) above (creation of an entity with the intent to circumvent legal obligations)

 

 

 

Situation (h) above (person created with the intent to circumvent legal obligations)

 

 

 

Situation (i) above

 

 

 

 

III – SITUATIONS OF EXCLUSION CONCERNING NATURAL OR LEGAL PERSONS ASSUMING UNLIMITED LIABILITY FOR THE DEBTS OF THE LEGAL PERSON

  1.  declares that a natural or legal person that assumes unlimited liability for the debts of the above-mentioned legal person is in one of the following situations:

YES

NO

N/A

Situation (a) above (bankruptcy)

 

 

 

Situation (b) above (breach in payment of taxes or social security contributions)

 

 

 

 

IV – GROUNDS FOR REJECTION FROM THIS PROCEDURE

(4) declares that the above-mentioned person:

YES

NO

Was previously involved in the preparation of the procurement documents used in this award procedure, where this entailed a breach of the principle of equality of treatment including distortion of competition that cannot be remedied otherwise.

 

 

 

V – REMEDIAL MEASURES

If the person declares one of the situations of exclusion listed above, it must indicate measures it has taken to remedy the exclusion situation, thus demonstrating its reliability. This may include e.g. technical, organisational and personnel measures to prevent further occurrence, compensation of damage or payment of fines or of any taxes or social security contributions. The relevant documentary evidence which illustrates the remedial measures taken must be provided in annex to this declaration. This does not apply for situations referred in point (d) of this declaration.

VI – EVIDENCE UPON REQUEST

Upon request and within the time limit set by the contracting authority the person must provide information on natural or legal persons that are members of the administrative, management or supervisory body or that have powers of representation, decision or control, including legal and natural persons within the ownership and control structure and beneficial owners.

It must also provide the following evidence concerning the person itself and the natural or legal persons on whose capacity the person intends to rely, or a subcontractor and concerning the natural or legal persons which assume unlimited liability for the debts of the person:

For situations described in (a), (c), (d), (f), (g) and (h), production of a recent extract from the judicial record is required or, failing that, an equivalent document recently issued by a judicial or administrative authority in the country of establishment of the person showing that those requirements are satisfied.

For the situation described in point (b), production of recent certificates issued by the competent authorities of the State concerned are required. These documents must provide evidence covering all taxes and social security contributions for which the person is liable, including for example, VAT, income tax (natural persons only), company tax (legal persons only) and social security contributions. Where any document described above is not issued in the country concerned, it may be replaced by a sworn statement made before a judicial authority or notary or, failing that, a solemn statement made before an administrative authority or a qualified professional body in its country of establishment.

The person is not required to submit the evidence if it has already been submitted for another award procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

VII – SELECTION CRITERIA

  1. declares that the above-mentioned person complies with the selection criteria applicable to it individually as provided in the tender specifications:

YES

NO

N/A

  1. It has the legal and regulatory capacity to pursue the professional activity needed for performing the contract as required in section 5.2.1 of the tender specifications;

 

 

 

  1. It fulfills the applicable economic and financial criteria indicated in section 5.2.2 of the tender specifications;

 

 

 

  1. It fulfills the applicable technical and professional criteria indicated in section 5.2.3 of the tender specifications.

 

 

 

 

 

  1.  if the above-mentioned person is the sole tenderer or the leader in case of joint tender, declares that:

YES

NO

N/A

  1. the tenderer, including all members of the group in case of joint tender and including subcontractors if applicable, complies with all the selection criteria for which a consolidated asseessment will be made as provided in the tender specifications.

 

 

 

     

 

VIII – EVIDENCE FOR SELECTION

The signatory declares that the above-mentioned person is able to provide the necessary supporting documents listed in the relevant sections of the tender specifications and which are not available electronically upon request and without delay.

The person is not required to submit the evidence if it has already been submitted for another procurement procedure of the same contracting authority. The documents must have been issued no more than one year before the date of their request by the contracting authority and must still be valid at that date.

The signatory declares that the person has already provided the documentary evidence for a previous procedure and confirms that there has been no change in its situation:

Document

Full reference to previous procedure

Insert as many lines as necessary.

 

 

The above-mentioned person must immediately inform the contracting authority of any changes in the situations as declared.

 

The above-mentioned person may be subject to rejection from this procedure and to administrative sanctions (exclusion or financial penalty) if any of the declarations or information provided as a condition for participating in this procedure prove to be false.

 

Full name                                                                                Date                                                                   Signature

 

 

 

 

 

Section 4

Evidence on selection criteria

If the supporting documents on the selection criteria are requested (see point 5.2 of the tender specifications), the tenderers shall complete the forms and/or submit the supporting documents listed here below.

Legal and regulatory capacity criteria

a)    Evidence on enrolment in a relevant professional or trade register, except for international organisations

 

  1. Evidence of professional and liability risk indemnity insurance valid for the execution of services foreseen in the present contract notice in The Republic of Botswana.

 

Economic and financial capacity criteria

a)    Income statements (Profit and Loss Statement) for the last two financial years for which accounts have been closed.

Technical and professional capacity criteria

a)      List of references and / or clients' reference letters in the fields related to the painting service contracts performed during the past three calendar years indicated in point 2 specifying whether the contract has been carried out in a professional manner in compliance with the contractual terms.

 

 

HEADING

CONTRACT FOR SUPPLIES

NUMBER — EEAS-XXX- DELBWA -SUP-DIR-2020

1. The European Union (‘the Union’), represented by the European Union Delegation to The Republic of Botswana (‘the contracting authority’) represented for the purposes of signing this contract by Mr Jan Sadek, Head of Delegation

on the one part, and

[Full official name]

[Official legal form][1]

[Statutory registration number][2]

 [Full official address]

[VAT registration number]

[appointed as the leader of the group by the members of the group that submitted the joint tender]

 ([collectively] ‘the contractor’), represented for the purposes of the signature of this contract by [forename, surname, function of legal representative and name of company in the case of a joint tender],

 

on the other part,

 

 

 

HAVE AGREED

 

to the special conditions, the general conditions for supply contracts and the following annexes:

Annex I          Tender specifications (reference No [complete] of [insert date])

Annex II         Contractor’s tender (reference No [complete] of [insert date])

Annex III –    Model order form                   

 

which form an integral part of this contract (‘the contract’).

This contract sets out the obligations of the parties during and after the duration of this contract.

All documents issued by the contractor (end-user agreements, general terms and conditions, etc.) except its tender are held inapplicable, unless explicitly mentioned in the special conditions of this contract. In all circumstances, in the event of contradiction between this contract and documents issued by the contractor, this contract prevails, regardless of any provision to the contrary in the contractor’s documents.

 

 

 

 

 

Order of priority of provisions

If there is any conflict between different provisions in this contract, the following rules must be applied:

  1. The provisions set out in the special conditions take precedence over those in the other parts of the contract.
  2. The provisions set out in the general conditions take precedence over those in the other annexes.
  3. The provisions set out in the tender specifications (Annex I) take precedence over those in the tender (Annex II).]

Subject matter

The subject matter of the contract is [short description of subject].

Entry into force and duration

I.3.1    The contract enters into force on the date on which the last party signs it.

I.3.2    The performance of the contract cannot start before its entry into force.

I.3.3    The duration of the performance of the contract must not exceed [complete] months. Performance of the contract starts from [the date of entry into force of the contract] [insert date].

The period of performance of the contract may be extended only with the express written agreement of the parties before the expiration of such period.

I.3.4    The supplies must be delivered at the Residence of the Ambassador of the European Union.

The contractor must notify the contracting authority of the exact date of delivery at least [complete] days in advance.

Price

Price of the contract and maximum amount

The price payable under this contract excluding renewals and price revision is BWP  [amount in figures and in words].

Price revision index

Price revision is not applicable to this contract.

 

Payment arrangements

Pre-financing

Pre-financing is not applicable to this contract.

Interim payment

Interim payment is not applicable to this contract.

Payment of the balance

1. The contractor (or leader in the case of a joint tender) may claim the payment of the balance in accordance with Article II.20.6.

The contractor (or leader in the case of a joint tender) must send an invoice in BWP in paper format for payment due under the contract, as provided for in the tender specifications and accompanied by the following:

2. The contracting authority must approve the submitted documents or supplies and pay within 30 days from receipt of the invoice.

3. If the contracting authority has observations to make, it must send them to the contractor (or leader in the case of a joint tender) and suspend the time limit for payment in accordance with Article II.20.7.

The contractor (or leader in the case of a joint tender) has [complete] days to submit additional information or corrections or new supplies if the contracting authority requires it.

***

Pursuant to the provisions of Headquarters Agreement applicable to the European Union Delegation or the Vienna Convention of 18 April 1961 on diplomatic relations, the European Union is exempt from all taxes and dues, including value added tax, on payments due in respect of this contract.

Guarantees

Guarantees are not applicable to this contract.

Performance guarantee

Performance guarantee is not applicable to this contract.

Retention money guarantee

Retention money guarantee is not applicable to this contract.

 

 

I.7 BANK ACCOUNT

Payments must be made to the contractor’s (or leader’s in the case of a joint tender) bank account denominated in BWP, identified as follows:

Name of bank:

Full address of branch:

Exact denomination of account holder:

Full account number including bank codes:

 

I.8 Communication details

For the purpose of this contract, communications must be sent to the following addresses:

Contracting authority:

Delegation of the European Union to The Republic of Botswana

Robinson Road, Plot 758

Gaborone

 

Email: Delegation-Botswana@eeas.europa.eu

 

Contractor (or leader in the case of a joint tender):

[Full name]

[Function]

[Company name]

[Full official address]

Email: [complete]

I.9  data controller

For the purpose of Article II.9, the data controller is the Head of the Delegation of the European Union to The Republic of Botswana.

I.10  termination by either party

Either party may, terminate the contract by sending formal notification to the other party with one month written notice.

If the contract is terminated:

(a)        neither party is entitled to compensation;

(b)        the contractor is entitled to payment only for the supplies delivered before termination takes effect.

The second, third and fourth paragraphs of Article II.17.4 apply.

I.11  Applicable law and settlement of disputes

I.11.1  The contract is governed by Union law, complemented, where necessary, by the law of The Republic of Botswana.

I.11.2  The courts of Botswana have exclusive jurisdiction over any dispute regarding the interpretation, application or validity of the contract.

SIGNATURES

For the contractor,

[Company name/forename/surname/position]

 

Signature[s]: _______________________

For the contracting authority,

[forename/surname/position]

 

Signature[s]:_____________________

Done at [place], [date]

Done at [place], [date]

In duplicate in English.

 

 

Definitions

For the purpose of this contract, the following definitions (indicated in italics in the text) apply:

‘Back office’: the internal system(s) used by the parties to process electronic invoices;

‘Confidential information or document’: any information or document received by either party from the other or accessed by either party in the context of the performance of the contract, that any of the parties has identified in writing as confidential. It may not include information that is publicly available;

‘Conflict of interest’: a situation where the impartial and objective performance of the contract by the contractor is compromised for reasons involving family, emotional life, political or national affinity, economic interest, or any other shared interest with the contracting authority or any third party related to the subject matter of the contract;

‘EDI message’ (electronic data interchange): a message created and exchanged through the electronic transfer, from computer to computer, of commercial and administrative data using an agreed standard;

‘e-PRIOR’: the service-oriented communication platform that provides a series of web services and allows the exchange of standardised electronic messages and documents between the parties. This is done either through web services, with a machine-to-machine connection between the parties’ back office systems (EDI messages), or through a web application (the supplier portal). The Platform may be used to exchange electronic documents (e-documents) such as electronic requests for supplies, electronic specific contracts, and electronic delivery of the certificate of conformity or electronic invoices between the parties. Technical specifications (i.e. the interface control document), details on access and user manuals are available at the following website: http://ec.europa.eu/dgs/informatics/supplier_portal/documentation/documentation_en.htm

‘Force majeure’: any unforeseeable, exceptional situation or event beyond the control of the parties that prevents either of them from fulfilling any of their obligations under the contract. The situation or event must not be attributable to error or negligence on the part of the parties or on the part of the subcontractors and must prove to be inevitable despite their exercising due diligence. Defaults, defects in equipment or material or delays in making them available, labour disputes, strikes and financial difficulties may not be invoked as force majeure, unless they stem directly from a relevant case of force majeure;

‘Formal notification’ (or ‘formally notify’): form of communication between the parties made in writing by mail or email, which provides the sender with compelling evidence that the message was delivered to the specified recipient;

‘Fraud’: any intentional act or omission affecting the Union’s financial interests relating to the use or presentation of false, incorrect or incomplete statements or documents or to non-disclosure of information in violation of a specific obligation;

‘Interface control document’: the guideline document which lays down the technical specifications, message standards, security standards, checks of syntax and semantics, etc. to facilitate machine-to-machine connection. This document is updated on a regular basis;

‘Irregularity’: any infringement of a provision of Union law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the Union’s budget.

‘Notification’ (or ‘notify’): form of communication between the parties made in writing including by electronic means;

‘Performance of the contract’: the execution of tasks and delivery of the purchased supplies by the contractor to the contracting authority;

‘Personnel’: persons employed directly or indirectly or contracted by the contractor to perform the contract;

‘Professional conflicting interest’: a situation in which the contractor’s previous or ongoing professional activities affect its capacity to perform the contract to an appropriate quality standard.

‘Related person’: any person who has the power to represent the contractor or to take decisions on its behalf;

‘Substantial error’: any infringement of a contract provision resulting from an act or omission, which causes or might cause a loss to the Union’s budget.

‘Supplier portal’: the e-PRIOR portal, which allows the contractor to exchange electronic business documents, such as invoices, through a graphical user interface; its main features can be found in the supplier portal overview document available on: http://ec.europa.eu/dgs/informatics/supplier_portal/doc/um_supplier_portal_overview.pdf

Roles and responsibilities in the event of a joint tender

In the event of a joint tender submitted by a group of economic operators and where the group does not have legal personality or legal capacity, one member of the group is appointed as leader of the group.

Severability

Each provision of this contract is severable and distinct from the others. If a provision is or becomes illegal, invalid or unenforceable to any extent, it must be severed from the remainder of the contract. This does not affect the legality, validity or enforceability of any other provisions of the contract, which continue in full force and effect. The illegal, invalid or unenforceable provision must be replaced by a legal, valid and enforceable substitute provision which corresponds as closely as possible with the actual intent of the parties under the illegal, invalid or unenforceable provision. The replacement of such a provision must be made in accordance with Article II.11. The contract must be interpreted as if it had contained the substitute provision as from its entry into force.

Delivery of supplies

II.4.1   The contractor must comply with the minimum requirements provided for in the tender specifications. This includes compliance with applicable obligations under environmental, social and labour law established by Union law, national law and collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU[3].

II.4.2   All periods specified in the contract are calculated in calendar days, unless otherwise specified.

II.4.3   The contractor must not present itself as a representative of the contracting authority and must inform third parties that it is not part of the European public service.

II.4.4   The contractor is responsible for the personnel who perform the contract and exercises its authority over its personnel without interference by the contracting authority. The contractor must inform its personnel that:

  1. they may not accept any direct instructions from the contracting authority; and
  2. their participation in providing the supplies does not result in any employment or contractual relationship with the contracting authority.

II.4.5   The contractor must ensure that the personnel performing the contract and any future replacement personnel possess the professional qualifications and experience required to provide the supplies, as the case may be on the basis of the selection criteria set out in the tender specifications.

II.4.6   At the contracting authority’s reasoned request, the contractor must replace any member of personnel who:

  1. does not have the expertise required to provide the supplies; or
  2. has caused disruption at the premises of the contracting authority.

The contractor bears the cost of replacing its personnel and is responsible for any delay in providing the supplies resulting from the replacement of personnel.

II.4.7   The contractor must record and report to the contracting authority any problem that affects its ability to deliver the supplies. The report must describe the problem, state when it started and what action the contractor is taking to resolve it.

II.4.8   Delivery

  1. Time allowed for delivery

The time allowed for delivery is calculated in accordance with Article I.3.

  1. Date, time and place of delivery

The Contracting Authority must be notified in writing of the exact date of delivery within the period indicated in Article I.3. All deliveries must be made at the agreed place of delivery during the hours indicated in Article I.3.

The contractor must bear all costs and risks involved in delivering the supplies to the place of delivery.

  1. Consignment note

Each delivery must be accompanied by a consignment note in duplicate, duly signed and dated by the contractor or its carrier, giving the contract number and particulars of the supplies delivered. One copy of the consignment note must be countersigned by the contracting authority and returned to the contractor or to its carrier.

II.4.9   Certificate of conformity

Signature of the consignment note by the contracting authority, as provided for in point (c) of Article II.4.10 is simply an acknowledgment of the fact that that the delivery took place and in no way implies conformity of the supplies with the contract.

Conformity of the supplies delivered must be evidenced by the signature of a certificate to this effect by the contracting authority no later than one month after the date of delivery, unless otherwise specified in the special conditions or in the tender specifications.

Conformity must be declared only where the conditions laid down in the contract are satisfied and the supplies conform to the tender specifications.

If, for reasons attributable to the contractor, the contracting authority is unable to accept the supplies, the contractor must be notified in writing at the latest by the deadline for conformity.

II.4.10 Conformity of the supplies delivered with the contract

The supplies delivered by the contractor to the contracting authority must be in conformity in quantity, quality, price and packaging with the contract.

The supplies delivered must:

  1. correspond to the description given in the tender specifications and possess the characteristics of the supplies provided by the contractor to the contracting authority as a sample or model;
  2. be fit for any specific purpose required of them by the contracting authority and made known to the contractor at the time of conclusion of this contract and accepted by the contractor;
  3. be fit for the purposes for which supplies of the same type are normally used;
  4. demonstrate the high quality standards and performance which are normal in supplies of the same type and which the contracting authority can reasonably expect, given the nature of the supplies and taking into account any public statements on the specific characteristics of the supplies made by the contractor, the producer or its representative, particularly in advertising or on labelling; in accordance with the state of the art in the industry and the provisions of this contract, in particular the tender specifications and the terms of its tender.
  5. be packaged according to the usual method for supplies of the same type or, failing this, in a way designed to preserve and protect them.

II.4.11 Remedy

The contractor must be liable to the contracting authority for any lack of conformity which exists at the time the supplies are verified.

In case of lack of conformity, without prejudice to Article II.14 on liquidated damages applicable to the total price of the supplies concerned, the contracting authority is entitled:

  1. either to have the supplies brought into conformity, free of charge, by repair or replacement;
  2. or to have an appropriate reduction made in the price.

Any repair or replacement must be completed within a reasonable time and without any significant inconvenience to the contracting authority, taking account of the nature of the supplies and the purpose for which they are required by the contracting authority.

The term ‘free of charge’ in paragraph (a) refers to the costs incurred to bring the supplies into conformity, particularly the cost of postage, labour and materials.

II.4.12 Assembly

If required by the tender specifications, the contractor must assemble the supplies delivered within a period of one month unless otherwise specified in the special conditions.

Any lack of conformity resulting from incorrect installation of the supplies must be deemed to be equivalent to lack of conformity of the supplies if installation forms part of the contract and the supplies were installed by the contractor or under its responsibility. This applies equally if the product was to be installed by the contracting authority and was incorrectly installed owing to a shortcoming in the installation instructions.

II.4.13 Services provided to supplies

If required by the tender specifications, services to supplies must be provided accordingly.

II.4.14 General provisions concerning supplies

  1. Packaging

The supplies must be packaged in strong boxes or crates or in any other way that ensures that the contents remain intact and prevents damage or deterioration. Packaging, pallets, etc., including contents, must not weigh more than 500 kg.

Unless otherwise specified in the special conditions or in the tender specifications, pallets must be considered as one‑way packaging and must not be returned. Each box must be clearly labelled with the following information:

  • name of contracting authority and address for delivery;
  • name of contractor;
  • description of contents;
  • date of delivery;
  • number and date of contract;
  • EC code number of article.
  1. Guarantee

The supplies must be guaranteed against all defects in manufacture or materials for two years from the date of delivery, unless provision is made for a longer period in the tender specifications.

The contractor must guarantee that any permits and licences required for manufacturing and selling the supplies have been obtained.

The contractor must replace at its own expense, within a reasonable time limit to be determined by agreement between the parties, any items which become damaged or defective in the course of normal use during the guarantee period.

The contractor is responsible for any conformity defect which exists at the time of delivery, even if this defect does not appear until a later date.

The contractor is also responsible for any conformity defect which occurs after delivery and is ascribable to non-compliance with its obligations, including failure to provide a guarantee that, for a certain period, supplies used for the purposes for which they are normally used or for a specific purpose will preserve their qualities or characteristics as specified.

If part of an item is replaced, the replacement part must be guaranteed under the same terms and conditions for a further period of the same duration as that specified above.

If a defect is found to originate in a systematic flaw in design, the contractor must replace or modify all identical parts incorporated in the other supplies that are part of the order, even though they may not have been the cause of any incident. In this case, the guarantee period must be extended as stated above.

Communication between the parties

Form and means of communication

Any communication of information, notices or documents under the contract must:

  1. be made in writing in paper or electronic format in the language of the contract;
  2. bear the contract number;
  3. be made using the relevant communication details set out in Article I.8; and
  4. be sent by mail, email or, for the documents specified in the special conditions, via e-PRIOR.

If a party requests written confirmation of an e-mail within a reasonable time, the other party must provide an original signed paper version of the communication as soon as possible.

The parties agree that any communication made by email has full legal effect and is admissible as evidence in judicial proceedings.

Date of communications by mail and email

Any communication is deemed to have been made when the receiving party receives it, unless this contract refers to the date when the communication was sent.

E-mail is deemed to have been received by the receiving party on the day of dispatch of that e-mail, provided that it is sent to the e-mail address indicated in Article I.8. The sending party must be able to prove the date of dispatch. In the event that the sending party receives a non-delivery report, it must make every effort to ensure that the other party actually receives the communication by email or mail. In such a case, the sending party is not held in breach of its obligation to send such communication within a specified deadline.

Mail sent to the contracting authority is deemed to have been received by the contracting authority on the date on which the department responsible referred to in Article I.8 registers it.

Formal notifications are considered to have been received by the receiving party on the date of receipt indicated in the proof received by the sending party that the message was delivered to the specified recipient.

Submission of e-documents via e-PRIOR

If provided for in the special conditions, the exchange of electronic documents (e-documents) such as invoices between the parties is automated through the use of the e-PRIOR platform. This platform provides two possibilities for such exchanges: either through web services (machine-to-machine connection) or through a web application (the supplier portal).

The contracting authority takes the necessary measures to implement and maintain electronic systems that enable the supplier portal to be used effectively.

In the case of machine-to-machine connection, a direct connection is established between the parties’ back offices. In this case, the parties take the measures necessary on their side to implement and maintain electronic systems that enable the machine-to-machine connection to be used effectively. The electronic systems are specified in the interface control document. The contractor (or leader in the case of a joint tender) must take the necessary technical measures to set up a machine-to-machine connection and at its own cost.

If communication via the supplier portal or via the web services (machine-to-machine connection) is hindered by factors beyond the control of one party, it must notify the other immediately and the parties must take the necessary measures to restore this communication.

If it is impossible to restore the communication within two working days, one party must notify the other that alternative means of communication specified in Article II.5.1 will be used until the supplier portal or the machine-to-machine connection is restored.

When a change in the interface control document requires adaptations, the contractor (or leader in the case of a joint tender) has up to six months from receipt of the notification to implement this change. This period can be shortened by mutual agreement of the parties. This period does not apply to urgent measures required by the security policy of the contracting authority to ensure integrity, confidentiality and non-repudiation of information and the availability of e-PRIOR, which must be applied immediately.

Validity and date of e-documents

The parties agree that any e-document, including related attachments exchanged via e-PRIOR:

  1. is considered as equivalent to a paper document;
  2. is deemed to be the original of the document;
  3. is legally binding on the parties once an e-PRIOR authorised person has performed the ‘sign’ action in e-PRIOR and has full legal effect; and
  4. constitutes evidence of the information contained in it and is admissible as evidence in judicial proceedings.

The parties expressly waive any rights to contest the validity of such a document solely on the grounds that communications between the parties occurred through e-PRIOR or that the document has been signed through e-PRIOR. If a direct connection is established between the parties’ back offices to allow electronic transfer of documents, the parties agree that an e-document, sent as mentioned in the interface control document, qualifies as an EDI message.

If the e-document is dispatched through the supplier portal, it is deemed to have been legally issued or sent when the contractor (or leader in the case of a joint tender) is able to successfully submit the e-document without any error messages. The generated PDF and XML document for the e-document are considered as a proof of receipt by the contracting authority.

In the event that an e-document is dispatched using a direct connection established between the parties’ back offices, the e-document is deemed to have been legally issued or sent when its status is ‘received’ as defined in the interface control document.

When using the supplier portal, the contractor (or leader in the case of a joint tender) can download the PDF or XML message for each e-document for one year after submission. After this period, copies of the e-documents are no longer available for automatic download from the supplier portal.

Authorised persons in e-PRIOR

The contractor submits a request for each person who needs to be assigned the role of ‘user’ in e-PRIOR. These persons are identified by means of the European Communication Authentication Service (ECAS) and authorised to access and perform actions in e-PRIOR within the permissions of the user roles that the contracting authority has assigned to them.

User roles enabling these e-PRIOR authorised persons to sign legally binding documents such as specific tenders or specific contracts are granted only upon submission of supporting documents proving that the authorised person is empowered to act as a legal representative of the contractor.

Liability

II.6.1   The contracting authority is not liable for any damage or loss caused by the contractor, including any damage or loss to third parties during or as a consequence of performance of the contract.

II.6.2   If required by the relevant applicable legislation, the contractor must take out an insurance policy against risks and damage or loss relating to the performance of the contract. It must also take out supplementary insurance as reasonably required by standard practice in the industry. Upon request, the contractor must provide evidence of insurance coverage to the contracting authority.

II.6.3   The contractor is liable for any loss or damage caused to the contracting authority during or as a consequence of performance of the contract, including in the event of subcontracting, but only to an amount not exceeding three times the total amount of the contract. However, if the damage or loss is caused by the gross negligence or wilful misconduct of the contractor or of its personnel or subcontractors, the contractor is liable for the whole amount of the damage or loss.

II.6.4   If a third party brings any action against the contracting authority in connection with the performance of the contract, the contractor must assist the contracting authority in the legal proceedings, including by intervening in support of the contracting authority upon request.

If the contracting authority’s liability towards the third party is established and that such liability is caused by the contractor during or as a consequence of the performance of the contract, Article II.6.3 applies.

II.6.5   If the contractor is composed of two or more economic operators (i.e. who submitted a joint tender), they are all jointly and severally liable to the contracting authority for the performance of the contract.

II.6.6   The contracting authority is not liable for any loss or damage caused to the contractor during or as a consequence of performance of the contract, unless the loss or damage was caused by wilful misconduct or gross negligence of the contracting authority.

Conflict of interests and professional conflicting interests

II.7.1   The contractor must take all the necessary measures to prevent any situation of conflict of interest or professional conflicting interest.

II.7.2   The contractor must notify the contracting authority in writing as soon as possible of any situation that could constitute a conflict of interest or a professional conflicting interest during the performance of the contract. The contractor must immediately take action to rectify the situation.

The contracting authority may do any of the following:

  1. verify that the contractor’s action is appropriate;
  2. require the contractor to take further action within a specified deadline;

II.7.3   The contractor must pass on all the relevant obligations in writing to:

  1. its personnel;
  2. any natural person with the power to represent it or take decisions on its behalf;
  3. third parties involved in the performance of the contract, including subcontractors.

The contractor must also ensure that the persons referred to above are not placed in a situation which could give rise to conflicts of interest.

Confidentiality

II.8.1   The contracting authority and the contractor must treat with confidentiality any information or documents, in any format, disclosed in writing or orally relating to the performance of the contract and identified in writing as confidential.

II.8.2   Each party must:

(a)   not use confidential information or documents for any purpose other than to perform its obligations under the contract without the prior written agreement of the other party;

(b)   ensure the protection of such confidential information or documents with the same level of protection as its own confidential information or documents, and in any case with due diligence;

(c)   not disclose directly or indirectly confidential information or documents to third parties without the prior written agreement of the other party.

II.8.3   The confidentiality obligation set out in this Article are binding on the contracting authority and the contractor during the performance of the contract and for as long as the information or documents remain confidential unless:

(a)   the disclosing party agrees to release the receiving party from the confidentiality obligation earlier;

(b)   the confidential information or documents become public through other means than in breach of the confidentiality obligation

(c)   the applicable law requires the disclosure of the confidential information or documents.

II.8.4   The contractor must obtain from any natural person with the power to represent it or take decisions on its behalf, as well as from third parties involved in the performance of the contract, a commitment that they will comply with this Article .At the request of the contracting authority, the contractor must provide a document providing evidence of this commitment.

Processing of personal data

II.9.1   Any personal data included in the contract must be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. Such data must be processed by the data controller solely for the purposes of the performance, management and monitoring of the contract. This does not affect its possible transmission to the bodies entrusted with monitoring or inspection tasks in application of Union law.

II.9.2   The contractor has the right to access its personal data and the right to rectify any such data. The contractor should address any queries concerning the processing of its personal data to the data controller.

II.9.3   The contractor has right of recourse at any time to the European Data Protection Supervisor.

II.9.4   If the contract requires the contractor to process any personal data, the contractor may act only under the supervision of the data controller, in particular with regard to the purposes of the processing, the categories of data that may be processed, the recipients of the data and the means by which the data subject may exercise its rights.

II.9.5   The contractor must grant personnel access to the data to the extent strictly necessary for the performance, management and monitoring of the contract.

II.9.6   The contractor must adopt appropriate technical and organisational security measures giving due regard to the risks inherent in the processing and to the nature of the personal data concerned in order to:

(a)   prevent any unauthorised person from gaining access to computer systems processing personal data, and especially:

(i)         unauthorised reading, copying, alteration or removal of storage media;

(ii)        unauthorised data inputting, as well as any unauthorised disclosure, alteration or erasure of stored personal data;

(iii)       unauthorised use of data-processing systems by means of data transmission facilities;

(b)   ensure that authorised users of a data-processing system can access only the personal data to which their access right refers;

(c)   record which personal data have been communicated, when and to whom;

(d)  ensure that personal data being processed on behalf of third parties can be processed only in the manner prescribed by the contracting authority;

(e)   ensure that, during communication of personal data and transport of storage media, the data cannot be read, copied or erased without authorisation;

(f)   design its organisational structure in such a way that it meets data protection requirements.

Subcontracting

II.10.1 The contractor must not subcontract and have the contract performed by third parties beyond the third parties already mentioned in its tender without prior written authorisation from the contracting authority.

II.10.2 Even if the contracting authority authorises subcontracting, the contractor remains bound by its contractual obligations and is solely responsible for the performance of this contract.

II.10.3 The contractor must ensure that the subcontract does not affect the rights of the contracting authority under this contract, particularly those under Article II.8 and II.22.

II.10.4 The contracting authority may request the contractor to replace a subcontractor found to be in a situation provided for in points (d) and (e) of Article II.17.1.

Amendments

II.11.1 Any amendment to the contract must be made in writing before all contractual obligations have been fulfilled.

II.11.2 Any amendment must not make changes to the contract that might alter the initial conditions of the procurement procedure or result in unequal treatment of tenderers.

Assignment

II.9.1   The contractor must not assign any of the rights and obligations arising from the contract, including claims for payments or factoring, without prior written authorisation from the contracting authority. In such cases, the contractor must provide the contracting authority with the identity of the intended assignee.

II.9.2   Any right or obligation assigned by the contractor without authorisation is not enforceable against the contracting authority.

Force majeure

II.13.1   If a party is affected by force majeure, it must immediately notify the other party, stating the nature of the circumstances, their likely duration and foreseeable effects.

II.10.3   A party is not liable for any delay or failure to perform its obligations under the contract if that delay or failure is a result of force majeure. If the contractor is unable to fulfil its contractual obligations owing to force majeure, it has the right to remuneration only for the supplies actually delivered and which obtain a certificate of conformity.

II.13.3   The parties must take all necessary measures to limit any damage due to force majeure.

Liquidated damages

Delay in delivery

If the contractor fails to perform its contractual obligations within the applicable time limits set out in this contract, the contracting authority may claim liquidated damages for each day of delay using the following formula:        

0.3 x (V/d)

where

V is the price of the relevant purchase or supply;

d is the duration specified in the contract for delivery of the relevant purchase or supply or, failing that, the duration of performance of the contract specified in Article I.3 expressed in days.

Liquidated damages may be imposed together with a reduction in price under the conditions laid down in Article II.15.

Procedure

The contracting authority must formally notify the contractor of its intention to apply liquidated damages and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to apply liquidated damages; or

(b) of its final decision to apply liquidated damages and the corresponding amount.

Nature of liquidated damages

The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the supplies within the applicable time limits set out in this contract.

II.14.4. Claims and liability

Any claim for liquidated damages does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.17.

Reduction in price

Quality standards

If the contractor fails to deliver the supply in accordance with the contract (‘unperformed obligations’) or if it fails to deliver the supply in accordance with the expected quality levels specified in the tender specifications (‘low quality delivery’), the contracting authority may reduce or recover payments proportionally to the seriousness of the unperformed obligations or low quality delivery. This includes in particular cases where the contracting authority cannot approve a document or deliver a certificate of conformity for supply as defined in Article I.5 after the contractor has submitted the required additional information, correction or new supply.

A reduction in price may be imposed together with liquidated damages under the conditions of Article II.14.

Procedure

The contracting authority must formally notify the contractor of its intention to reduce payment and the corresponding calculated amount.

The contractor has 30 days following the date of receipt to submit observations. Failing that, the decision becomes enforceable the day after the time limit for submitting observations has elapsed.

If the contractor submits observations, the contracting authority, taking into account the relevant observations, must notify the contractor:

(a) of the withdrawal of its intention to reduce payment; or

(b) of its final decision to reduce payment and the corresponding amount.

Claims and liability

Any reduction in price does not affect the contractor’s actual or potential liability or the contracting authority’s rights under Article II.17.

Suspension of the performance of the contract

Suspension by the contractor

If the contractor is affected by force majeure, it may suspend the performance of the contract.

The contractor must immediately notify the contracting authority about the suspension. The notification must include a description of the force majeure and state when the contractor expects to resume the performance of the contract.

The contractor must notify the contracting authority as soon as it is able to resume performance of the contract, unless the contracting authority has already terminated the contract.

Suspension by the contracting authority

The contracting authority may suspend the performance of the contract or any part of it:

(a)        if the procedure for awarding the contract or the performance of the contract proves to have been subject to substantial errors, irregularities or fraud;

(b)        in order to verify whether the presumed substantial errors, irregularities or fraud actually occurred.

The contracting authority must formally notify the contractor of the suspension. Suspension takes effect on the date of formal notification, or at a later date if the formal notification so provides.

The contracting authority must notify the contractor as soon as possible whether:

(a)        it is lifting the suspension; or

(b)        it intends to terminate the contract under Article II.17.1(f) or (j).

The contractor is not entitled to compensation for suspension of any part of the contract.

Termination of the contract

Grounds for termination by the contracting authority

The contracting authority may terminate the contract in the following circumstances:

(a)        if provision of the supplies under the contract has not actually started within 15 days of the scheduled date and the contracting authority considers the new date proposed, if any, unacceptable, taking into account Article II.11.2;

(b)        if the contractor is unable, through its own fault, to obtain any permit or licence required for performance of the contract;

(c)        if the contractor does not perform the contract in accordance with the tender specifications or is in breach of another substantial contractual obligation.

(d)       if the contractor or any person that assumes unlimited liability for the debts of the contractor is in one of the situations provided for in points (a) and (b) of Article 136(1) of the Financial Regulation[4];

(e)        if the contractor or any related person is subject to any of the situations provided for in points (c) to (f) of Article 136(1) or to Article 136(2) of the Financial Regulation;

(f)        if the procedure for awarding the contract or the performance of the contract prove to have been subject to substantial errors, irregularities or fraud;

(g)        if the contractor does not comply with applicable obligations under environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Annex X to Directive 2014/24/EU;

(h)        if the contractor is in a situation that could constitute a conflict of interest or a professional conflicting interest as referred to in Article II.7;

(i)         if a change to the contractor’s legal, financial, technical, organisational or ownership situation is likely to substantially affect the performance of the contract or substantially modify the conditions under which the contract was initially awarded;

(j)           in the event of force majeure, where either resuming implementation is impossible or the necessary ensuing amendments to the contract would mean that the tender specifications are no longer fulfilled or result in unequal treatment of tenderers or contractors;

Grounds for termination by the contractor

The contractor may terminate the contract if:

(a)          it has evidence that the contracting authority has committed substantial errors, irregularities or fraud in the procedure for awarding the contract or the performance of the contract;

(b)          the contracting authority fails to comply with its obligations, in particular the obligation to provide the information needed for the contractor to perform the contract as provided for in the tender specifications.

Procedure for termination

A party must formally notify the other party of its intention to terminate the contract and the grounds for termination.

The other party has 30 days following the date of receipt to submit observations, including the measures it has taken to continue fulfilling its contractual obligations. Failing that, the decision to terminate becomes enforceable the day after the time limit for submitting observations has elapsed.

If the other party submits observations, the party intending to terminate must formally notify it either of the withdrawal of its intention to terminate or of its final decision to terminate.

In the cases referred to in points (a) to (d) and (g) to (i) of Article II.17.1 and in Article II.17.2, the date on which the termination takes effect must be specified in the formal notification.

In the cases referred to in points (e), (f) and (j) of Article II.17.1, the termination takes effect on the day following the date on which the contractor receives notification of termination.

In addition, at the request of the contracting authority and regardless of the grounds for termination, the contractor must provide all necessary assistance, including information, documents and files, to allow the contracting authority to complete, continue or transfer the delivery of the supplies to a new contractor or internally, without interruption or adverse effect on the quality or continuity of the delivery of the supplies. The parties may agree to draw up a transition plan detailing the contractor’s assistance unless such plan is already detailed in other contractual documents or in the tender specifications. The contractor must provide such assistance at no additional cost, except if it can demonstrate that it requires substantial additional resources or means, in which case it must provide an estimate of the costs involved and the parties will negotiate an arrangement in good faith.

Effects of termination

The contractor is liable for damage incurred by the contracting authority as a result of the termination of the contract including the cost of appointing another contractor to provide or complete the supplies, unless the damage was caused by the situation specified in Article II.17.1 (j) or in Article II.17.2. The contracting authority may claim compensation for such damage.

The contractor is not entitled to compensation for any loss resulting from the termination of the contract, including loss of anticipated profits, unless the loss was caused by the situation specified in Article II.17.2.

The contractor must take all appropriate measures to minimise costs, prevent damage and cancel or reduce its commitments.

Within 60 days of the date of termination, the contractor must submit any report and any invoice required for supplies that were provided before the date of termination.

In the case of joint tenders, the contracting authority may terminate the contract with each member of the group separately on the basis of points (d), (e) or (g) of Article II.17.1, under the conditions set out in Article II.11.2.

Invoices, value added tax and e-invoicing

Invoices and value added tax

Invoices must contain the contractor’s (or leader’s in the case of a joint tender) identification data, the amount, the currency and the date, as well as the contract reference.

Invoices must indicate the place of taxation of the contractor (or leader in the case of a joint tender) for value added tax (VAT) purposes and must specify separately amounts not including VAT and amounts including VAT.

The contracting authority is exempt from all taxes and duties, including VAT, in accordance with Articles 3 and 4 of the Protocol on the privileges and immunities of the European Union.

Unless otherwise stated in the tender specifications, in the specific contract or in the order form, the contracting authority is exempt from all taxes, duties and other charges, including VAT, in accordance with the Vienna Convention on Diplomatic Relations of 18 April 1961 and the particular Headquarters' agreements concluded between the host state and the European Union institution, which grant an exemption equivalent to that stated in the Vienna Convention.

The contractor (or leader in the case of a joint tender) must complete the necessary formalities with the relevant authorities to ensure that the supplies and services required for performance of the contract are exempt from taxes and duties, including VAT.

E-invoicing

If provided for in the special conditions, the contractor (or leader in the case of a joint tender) submits invoices in electronic format if the conditions regarding electronic signature specified by Directive 2006/112/EC on VAT are fulfilled, i.e. using a qualified electronic signature or through electronic data interchange.

Reception of invoices by standard format (pdf) or email is not accepted.

Price revision

A price revision is not applicable to this contract.

 

Payments and guarantees

Date of payment

Payments are deemed to be effected on the date when they are debited to the contracting authority’s account.

Currency

Payments are made in euros or in the currency provided for in Article I.7.

 

 

Conversion

The contracting authority makes any conversion between the euro and another currency at the daily euro exchange rate published in the Official Journal of the European Union, or failing that, at the monthly accounting exchange rate, as established by the European Commission and published on the website indicated below, applicable on the day when it issues the payment order.

The contractor makes any conversion between the euro and another currency at the monthly accounting exchange rate, established by the Commission and published on the website indicated below, applicable on the date of the invoice.

http://ec.europa.eu/budget/contracts_grants/info_contracts/inforeuro/inforeuro_en.cfm

Costs of transfer

The costs of the transfer are borne as follows:

  1. the contracting authority bears the costs of dispatch charged by its bank,
  2. the contractor bears the costs of receipt charged by its bank,
  3. the party causing repetition of the transfer bears the costs for repeated transfer.

Pre-financing, performance and money retention guarantees

If, as provided for in Article I.6, a financial guarantee is required for the payment of pre-financing, as performance guarantee or as retention money guarantee, it must fulfil the following conditions:

  1. the financial guarantee is provided by a bank or a financial institution approved by the contracting authority or, at the request of the contractor and with the agreement of the contracting authority, by a third party;
  2. the guarantor stands as first-call guarantor and does not require the contracting authority to have recourse against the principal debtor (the contractor).

The contractor bears the cost of providing such guarantee.

Pre-financing guarantees must remain in force until the pre-financing is cleared against interim payments or payment of the balance. Where the payment of the balance takes the form of a debit note, the pre-financing guarantee must remain in force for three months after the debit note is sent to the contractor. The contracting authority must release the guarantee within the following month.

Performance guarantees cover compliance with substantial contractual obligations until the contracting authority has given its final approval for the supply. The performance guarantee must not exceed 10 % of the total price of the contract. The contracting authority must release the guarantee fully after final approval of the supply, as provided for in the contract.

Retention money guarantees cover full delivery of the supplies in accordance with the contract including during the contract liability period and until their final approval by the contracting authority. The retention money guarantee must not exceed 10 % of the total price of the contract. The contracting authority must release the guarantee after the expiry of the contract liability period as provided for in the contract.

The contracting authority must not request a retention money guarantee where it has requested a performance guarantee.

Interim payments and payment of the balance

Interim payments are not applicable to this contract.

Payment of the balance may take the form of recovery.

Suspension of the time allowed for payment

The contracting authority may suspend the payment periods specified in Article I.5 at any time by notifying the contractor (or leader in the case of a joint tender) that its invoice cannot be processed. The reasons the contracting authority may cite for not being able to process an invoice are:

  1. because it does not comply with the contract;
  2. because the contractor has not produced the appropriate supplies or documents or
  3. because the contracting authority has observations on the supplies or documents submitted with the invoice.

The contracting authority must notify the contractor (or leader in the case of a joint tender) as soon as possible of any such suspension, giving the reasons for it.

Suspension takes effect on the date the contracting authority sends the notification. The remaining payment period resumes from the date on which the requested information or revised documents are received or the necessary further verification, including on-the-spot checks, is carried out. Where the suspension period exceeds two months, the contractor (or leader in the case of a joint tender) may request the contracting authority to justify the continued suspension.

Where the payment periods have been suspended following rejection of a document referred to in the first paragraph of this Article and the new document produced is also rejected, the contracting authority reserves the right to terminate the contract in accordance with Article II.17.1(c).

Interest on late payment

On expiry of the payment periods specified in Article I.5, the contractor (or leader in the case of a joint tender) is entitled to interest on late payment at the rate applied by the European Central Bank for its main refinancing operations in euros (the reference rate), plus eight points. The reference rate is the rate in force, as published in the C series of the Official Journal of the European Union on the first day of the month in which the payment period ends.

Suspension of the payment period as provided for in Article II.20.7 is not considered as a giving rise to late payment.

Interest on late payment covers the period running from the day following the due date for payment up to and including the date of payment as defined in Article II.20.1.

However, when the calculated interest is EUR 200 or less, it must be paid to the contractor (or leader in the case of a joint tender) only if it requests it within two months of receiving late payment.

Recovery

II.21.1. If an amount is to be recovered under the terms of the contract, the contractor must repay the contracting authority the amount in question.

II.21.2. Recovery procedure

Before recovery, the contracting authority must formally notify the contractor of its intention to recover the amount it claims, specifying the amount due and the reasons for recovery and inviting the contractor to make any observations within 30 days of receipt.

If no observations have been submitted or if, despite the observations submitted, the contracting authority decides to pursue the recovery procedure, it must confirm recovery by formally notifying a debit note to the contractor, specifying the date of payment. The contractor must pay in accordance with the provisions specified in the debit note.

If the contractor does not pay by the due date, the contracting authority may, after informing the contractor in writing, recover the amounts due:

  1. by offsetting them against any amounts owed to the contractor by the Union or by the European Atomic Energy Community;
  2. by calling in a financial guarantee if the contractor has submitted one to the contracting authority;
  3. by taking legal action.

II.21.3 Interest on late payment

If the contractor does not honour the obligation to pay the amount due by the date set by the contracting authority in the debit note, the amount due bears interest at the rate indicated in Article II.20.8. Interest on late payments will cover the period starting on the day after the due date for payment and ending on the date when the contracting authority receives the full amount owed.

Any partial payment is first entered against charges and interest on late payment and then against the principal amount.

II.21.4. Recovery rules in the case of joint tender

If the contract is signed by a group (joint tender), the group is jointly and severally liable under the conditions set out in Article II.6 (liability). The contracting authority first claims the full amount to the leader of the group.

If the leader does not pay by the due date and if the amount cannot be offset in accordance with Article II.21.2 (a), the contracting authority may claim the full amount to any other member of the group by notifying the debit note already sent to the leader under Article II.21.2.

Checks and audits

II.22.1.The contracting authority and the European Anti-Fraud Office may check or require an audit on the performance of the contract. This may be carried out either by OLAF’s own staff or by any other outside body authorised to do so on its behalf.

Such checks and audits may be initiated at any moment during the provision of the supplies and up to five years starting from the payment of the balance.

The audit procedure is initiated on the date of receipt of the relevant letter sent by the contracting authority. Audits are carried out on a confidential basis.

II.22.2.The contractor must keep all original documents stored on any appropriate medium, including digitised originals if authorised under national law, for a period of five years starting from the payment of the balance.

II.22.3.The contractor must grant the contracting authority’s staff and outside personnel authorised by the contracting authority the appropriate right of access to sites and premises where the contract is performed and to all the information, including information in electronic format, needed to conduct such checks and audits. The contractor must ensure that the information is readily available at the moment of the check or audit and, if so requested, that information is handed over in an appropriate format.

II.22.4.On the basis of the findings made during the audit, a provisional report is drawn up. The contracting authority or its authorised representative must send it to the contractor, who has 30 days following the date of receipt to submit observations. The contractor must receive the final report within 60 days following the expiry of the deadline to submit observations.

On the basis of the final audit findings, the contracting authority may recover all or part of the payments made in accordance with Article II.21 and may take any other measure which it considers necessary.

II.22.5.In accordance with Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspection carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities and Regulation (EU, Euratom) No 883/2013 of the European Parliament and the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office, the European Anti-Fraud Office may carry out investigations, including on‑the‑spot checks and inspections, to establish whether there has been fraud, corruption or any other illegal activity under the contract affecting the financial interests of the Union. Findings arising from an investigation may lead to criminal prosecution under national law.

The investigations may be carried out at any moment during the performance of the contract and up to five years starting from the payment of the balance.

II.22.6 The Court of Auditors has the same rights as the contracting authority, particularly right of access, for the purpose of checks and audits.

 

 

The following annexes shall be completed by the tenderer and send as part of its tender. The annexes shall be completed with tenderer's replies. The tenderers shall insert in the form itself the specific references to all the documents included in its tender.

 

Section 5

Technical tender

Table of compliance with the requirements in the procurement documents

EEAS-DELBWA………-SUP-FWC 2020

Supply and installation of laminated wooden flooring

requirement

Yes / No

Tenderer's reply and or comments

Will there be proper preparation of all surfaces like removal of old tiles prior to placing the wooden flooring?

 

 

Will all cracks and holes on the floor be filled and made smooth prior to placing the wooden flooring?

 

 

Does all equipment and material comply with Botswana standards? 

 

 

Is the proposed material of a high, durable quality and of a well-known brand?  (Specify the brand in the comments)

 

 

At completion, will work be touched up and restored where damaged, defaced or defective?

 

 

Does the tenderer have the necessary professional and experienced staff to perform the contract?

 

 

Specify the warranty on used material:

 

 

Are all documents mentioned in the Selection Criteria (under point 4.2.1 – 4.2.3) included in your tender?

 

 

 

 

I, .................... , the undersigned, being the authorised legal representative of [to be completed with the name of the tenderer; for joint tenders, this must include all members], hereby declare that we have examined and accept without reserve or restriction all the terms and conditions set out in the invitation to tender, in the tender specifications and in the draft purchase order for the tender procedure referred to above and, where appropriate, waive the tenderer's own general or specific terms and conditions. We offer to provide the services on the basis of our technical tender and our financial tender which do not diverge in any way from the requirements described in the tender documents as drafted by the contracting authority. Our tender complies with all the technical requirements indicated in the tender specifications.

We also undertake to respect these requirements scrupulously during the performance of the contract in case we become the awardee of the contract.

 

 

 

 

 

Name of the legal representative of the tenderer:

 

 

 

 

Signature:                                                                                       Date:]

 

 

 

 

Annex A -Financial tender

Price schedule over the duration of the contract in BWP

Item

Description

Type of unit

Number of units over the duration of the contract

Unit price in BWP 

 

Total price in BWP   

 

1

2

3

4

5

6 = 4 x 5

A

807 sqm

HDF (high density conifer fibre board) impregnated with wax treatment

Preferred color:

Sun bleached oak or similar

 

 

 

B

150 sqm

Rigid core vinyl SPC (stone plastic composite)

Suitable for bathrooms and kitchen

Preferrred color: sunstone or similar

 

 

 

C

Full installation for the whole area of floors

 

 

 

 

D

 

 

 

 

 

E

 

 

 

 

 

TOTAL

 

 

 

Please note that the prices should be quoted free of all duties, taxes and other charges including VAT, as the Delegation of the European Union to the Republic of Botswana is exempt from such charges.

 

Prices must be all-inclusive ( = including preparation, materials i.e. paint, spackle, equipment, cleaning, all operational costs, administrative costs, logistical costs and transport costs, etc.)

 

 

Name: …………………………….                                  Date: ………………………………

 

 

Title: ………………………………                                  Signature: …………………………

 

Name of tenderer:

Name of the legal representative of the tenderer:

Date:                                                               Signature:

 

 

 

 

 

[3]    OJ L 94 of 28.03.2014, p. 65

[4]               Regulation (EU, EURATOM) No 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, repealing Regulation (EU, Euratom) No 966/2012 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2016.119.01.0001.01.ENG

 

Deadline to express your interest (inscription): 
31/01/2020
Sending of invitation to tender (Indicative time): 
An on-site visit is planned on 21 January 2020 at the following address: Robinson Road, Plot 758, Gaborone. Each tenderer shall send an email at the latest 4 calendar days prior to the visit to know the time
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