Forbes Shire Council Conditions by ldd0229

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									Forbes Shire Council

Forbes Shire Council Conditions of Tendering Policy

Policy Number: Date approved Effective Authority Contact Officer

CS008 17/09/09 17/09/09 Corporate Services General Manager

________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________ Revision History
Version V1.0 V2.0 Date 21/07/05 17/09/09 Amended Authorised by Approved by General Manager General Manager Revision Date 21/07/07 17/09/09

Change History Version V.1.0 Change Details Initial Policy

Related Documents Document Title File reference: Code of Conduct Location C53/001

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Objectives of Code: To establish and communicate the rules which are to apply to the competitive tendering of services by Forbes Shire Council to ensure equity to in-house and external tenderers and probity over the entire process. Preamble: This code applies to all tendering which Council is to conduct. The code provides guidance particularly for tendering in which the Council receives a tender from its own staff. Other standards, codes and guidelines may be relevant to Council’s tendering. For example, Local Government Act and Regulations, the Australian Standard Code of Tendering AS4120 1994 applies generally; the NSW Government Policy Statement of the Application of Competition Policy to Local Government must be complied with; and NSW Government Guidelines will also be relevant when issued. Equity & Probity: The Council will ensure that the tender process is fair to all parties. More specifically, it will:Clearly separate its role as a purchaser from that of a provider of services; Apply the same conditions of tendering to an in-house tenderer as it does to an external tenderer including regulatory OHS & Industrial-employees to work under awards or agreements; Produce tender documents which clearly specify Council’s required services to allow tenderers to bid for and price their work accurately; Package work put to tender in a manner which encourages the best outcome for residents and ratepayers; Actively discourage improper tendering practices such as collusion, misrepresentation and disclosure of confidential information; Require any conflict of interest to be disclosed immediately; Specifications will be developed to clearly set out Council’s expectations. Most specifications will focus on outcomes, quality and performance requirements; Council will advertise all open tenders and expressions of interest (EOI) in the Forbes Advocate and may advertise them more widely. Expression of Interest: An “expression of interest” process may be used before Council invites tenders. The aim of EOI stage is to assess the capacity of respondents to undertake the work, to seek feedback on draft specifications to assist in refinement of specifications and to shortlist respondents for a selective tender. Evaluation criteria for short listing for selective tender will be included in each EOI. Council may invite tenders from some, all, or none of the registrants by the advertised date. If Council does not invite tenders by that date, it will write to all registrants advising when tenders are to be invited. Respondents who are not invited to tender will be advised in writing. Council will use this list of registrants to invite tenders from advertised contract only.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Invitation to Tender: Where Section 55 of the Local Government Act 1993 requires the calling of tenders then the following procedures are to be observed: a). Prior to the preparation of any contract documentation, consideration must be given to the issues raised in the May 1995 ICAC documents “How to Contract for Services – A Best Practice Model” (Appendix 3), and the Probity Check List (Appendix 4). There must be good intention and capacity to proceed with the contract on both Council’s and the tenderers behalf. When needing to call tenders (whether open, prequalified or expressions of interest) contact the Finance Officer who will arrange for the opening of a file for the tenders. The file number to be used as the tender/contract number. The file is to be labelled “Tenders/Contract/Expression of Interest etc”. The directorate representative will arrange the placement of advertisements in newspapers in accordance with Council’s advertising policy and the Regulation. Specifically advertisements will be placed in the Sydney Morning Herald at least once, and the Forbes Advocate once per week for the public notice period together with the Council website. The closing time for tenders will be as determined by Council from time to time. The General Conditions of Tendering must include clauses specifying: i). That Council expects all tenderers and contractors to Council to conduct their business with Council in an ethical manner and that they should be aware that they may be subject to public scrutiny by such bodies as the Independent Commission Against Corruption.

b).

c).

d).

Section 55(3) of the Act provides for a range of exemptions where the tendering requirements do not apply, included is a contract where because of extenuating circumstances Council decides that a satisfactory result would not be achieved by inviting tenders. To effect such an exception the following three elements must be satisfied:There must be a resolution of Council; The resolution must state the reasons for the Council’s decision; The resolution must state that a satisfactory result would not be achieved by inviting tenders. In addition, the resolution must be passed in good faith and not merely an attempt to avoid the public tender requirements of Section 55(1). ii). That canvassing of Councillors and Council staff, (other than Council‟s nominated „contact staff member‟) at any stage up to and including the acceptance of tenders may automatically disqualify the applicant. The „contact staff member‟ is the person nominated by Council for that purpose in the tender advertisement.

e).

A non-refundable charge may be made for the issue of tender documents. The amount to be determined by the Department calling the tenders. The charge is to reflect the production costs. No initial tender deposit will be required from tenderers. However, security deposits may be required under the Conditions of Tendering and Specifications.

f).

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
g). h). Notification of the closing date and time is to be placed on the front foyer noticeboard by the appropriate directorate. The Directorate representative initiating the tenders is to arrange for the preparation of the specifications for distribution from the Council Chambers Administration ground floor Enquiry Counter.

Council will offer the same tender documents to all those who respond to an invitation to tender. A copy of these guidelines will be attached to all tender documents. If Council gives advice, verbal or in writing, to a respondent clarifying the meaning of the tender documentation it will give the same information to all other respondents in writing. Council will maintain a written record of all advice given. Tenderers will generally be given a minimum of 21 days to respond to the EOI and to the tender. The submission period is determined by the nature and complexity of the tender. Tender periods may be extended in exceptional circumstances. Generally, late tenders should not be considered. However, Clause 177(5) of the Regulation provides that a Council must consider a tender received within a reasonable period after the close of the tenders where the tenderer can satisfy Council that the tender documents and all necessary information were lodged at a recognised delivery agency in sufficient time to enable the documents to have been received before the deadline. Any decision to accept a late tender should be documented including the rationale for the decision. For the purpose of determining what constitutes sufficient proof for the purpose of Clause 177, the tenderer must, if requested by Council to do so, supply Council with written verification from the delivery agency concerned which confirms that the documents were lodged with the agency before the closing of the tender. Receipt of Tenders: The conditions in regard to the submission of tenders to Council are prescribed by Clause 173 of the Regulation, it is the tenderers responsibility to submit a tender in accordance with the conditions of tender and in a legible form. The submission of tenders to Council by electronic means is acceptable if this method of submission is specified in the tender documents in accordance with Clause 177 of the Regulation. Tenders submitted by facsimile must be printed out on receipt, placed in an envelope and placed in the tender box in the same way as hard copy tenders. In-House Tenders: Council will treat an in-house tenderer on the same terms as an external tenderer. Council will ensure there is a clear separation between the in-house tenderers and those responsible for the final tender specification and evaluation of tenders. In-house tenders will be prepared on the basis that all direct costs and indirect or overhead costs attributable to the tender are included.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
When assessing in-house bids the following principles should be maintained:Transparency – Forbes Shire Council should clearly indicate its intention of allowing an in-house bid. All contracts and briefings with the in-house team should be fully documented and the same opportunities afforded to all competitors. Impartiality – the same evaluation criteria should apply to internal and external competitors. Security of information – there must be a tight control of the flow of information between the group preparing the in-house bid and those involved in the bid management and evaluation. Separation of roles/functions – internal competitors must be separated from all aspects of the specification development and bid evaluation process. Tender Evaluation: The Tender box is to be located on the ground floor of the Council Administration building. It is to be opened only by the tender opening group. On opening of the tenders, each tender is to be signed by each member of the tender opening group on every page on which tender dollar amounts are stated. Members of the public and tenderers are welcome to attend tender openings. The public and tenderers can, on request, be informed as to whether the Council has received a particular tender and the number of tenders received but are not entitled to receive any other information about the tenders. Selection criteria based on all factors that will be taken into account during the evaluation process should always be developed prior to the calling of tenders or quotations and included in the bid documentation. Price, experience, quality, safety and environment are examples of such criteria, Any evaluation process should be based on the principle of value for money, which includes non price factors. A notice titled “Tenders Received” detailing names only of the tenders will be posted on the notice board on the ground floor of the Administration building as soon as practical after opening in apparent order. After the tenders have been opened the tender evaluation panel are to prepare a report with their recommendation and submit for referral to the next Ordinary Meeting of Council. As a matter of good practice, where there is an in-house tender, at least one member of the panel will be a person who is independent of Council and has expertise relevant to the tender. The tender evaluation report will disclose the names of the panel members. No member of a panel involved in preparing the in-house tender, will be responsible for the direct management of the inhouse service if it is successful, or have any interest in an external tender. Award of Contract: The Council may negotiate with tenderers to determine the award of the contract but must have regard to the scope of the tender document at all times. Council will not trade the price of one tenderer against that of another tenderer. All negotiations with one tenderer will be exhausted before beginning negotiations with another tenderer.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Any deemed unethical or inappropriate behaviour by a tenderer in any stage of the tender process will result in a tender being automatically disqualified. Where Council suspects unethical or corrupt behaviour the tenderer will be required to make representations to an internal disciplinary panel for appropriate course of action. The decision to award a contract/agreement, which involves an in-house tenderer, will be made by Council in a Council meeting. The Council will award the contract on the basis of the best quality and value for money for ratepayers and the community. The Council will have regard to the tender evaluation report and may also have regard to other factors impacting on the best quality and value for money outcome. New contracts will require suppliers and contractors to declare that they have read Council’s Statement of Business Ethics and that they understand and agree to abide by it. Unsuccessful tenderers will be notified promptly in writing and the advice will include reasons for the award of the contract. Payment for variations should not be seen as an increase in the contract price, but rather, payment for additional work. A formal variation procedure for unforeseen variations should require that:A formal variation request be referred to the approving officer as soon as the potential need is identified. The referral should include a statement outlining the reason for the variation. Before authorising a variation, the approving officer issues a variation as a change in the project scope and not part of the specification. Contractors are issued with written variation orders before any work is undertaken. Contractors should be advised that the agreed cost of a variation is to include all costs and is not subject to price escalation unless agreed to. Contact clauses should clearly stipulate who bears the responsibility for delay costs, such as those associated with bad weather. All variation reports should include a summary of the nature and scope of the contract, the original contract price, and the reasons for variation and the variation amount. Contract should clearly specify procedures for seeking and approving variations or prolongation claims and specify that the onus of the proof for such claim rests with the contractor. Site inspections at critical times as well as randomly over the period of the contract in service delivery should be set out in the conditions of contract. Assessment of contractor performance should occur consistently throughout the life of the contract, not just at the conclusion of the contract or contract term. Any system for monitoring the performance of a contract should be developed and clearly communicated to potential contractors prior to Council entering into a contract. It is important that a system developed to evaluate contractor performance ensures that:There is a process for early intervention if contractor performance in unsatisfactory. The principles of natural justice are adhered to.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
There is a system in place to resolve any disputes over performance. Mechanisms are in place to ensure that contractors with unsatisfactory performance ratings are not awarded any future work until it can be identified that previous performance reports have been rectified. Complaints: Complaints about the tendering process will be dealt with promptly by Council. Each complaint will be recorded in writing and the complainant given an opportunity to discuss the complaint with the General Manager or delegated Senior Officer. Appendices: 1). 2). 3). 4). 5). 6). 7). Local Government Act Section 55; Local Government General Regulation 2005; ICAC “How to Contract for Services – A Best Practice Model”; ICAC Probity Checklist; Important Points; Tender Process Flow Chart; Statement of Business Ethics.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________

APPENDIX 1 LOCAL GOVERNMENT ACT, 1993 Section 55

Part 3 – Restraints and Qualifications That Apply to Service functions: Division 1 – Tendering 55 What are the requirements for tendering? (1). [The need for tenders] A Council must invite tenders before entering into any of the following contracts: a contract to carry out any work directed or authorised by or under any Act to be carried out by the Council. a contract to perform a service or to provide facilities directed or authorised by or under any Act to be performed or provided by the Council. a contract for providing goods or materials to the Council. a contract for disposal of property of the Council. a contract requiring the payment of instalments by or to the Council over a period of 2 or more years. (2). [Public Notice] Tenders are to be invited, and invitations to tender are to be made, by public notice and in accordance with any provisions prescribed by the regulations. [Exceptions] This section does not apply to the following contracts: a contract entered into by a Council with the Crown (whether in right of the Commonwealth, New South Wales or any other State or Territory), a Minister of the Crown or a statutory body representing the Crown. a contract entered into by a Council with another Council. a contract for the purchase or sale by a Council of land. a contract for the leasing of land by the Council. a contract for purchase or sale by a Council at public auction.

(3).

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
a contract for the purchase of goods, materials or services specified by the State Contracts Control board or the Department of Administrative Services of the Commonwealth, made with a person so specified, during a period so specified and at a rate not exceeding the rate so specified. a contract for the employment of a person as an employee of the Council. a contract where, because of extenuating circumstances, remoteness of locality or the unavailability of competitive or reliable tenderers, a Council decides by resolution (which states the reasons for the decision) that a satisfactory result would not be achieved by inviting tenders. contract for which, because of provisions made by or under another Act, a Council is exempt from the requirements to invite a tender. a contract made in a case of emergency. a contract involving an estimated expenditure or receipt of an amount of less than $150,000 or such other amount as may be prescribed by the regulations. (4). A Council that invites tenders from selected persons only is taken to comply with the requirements of this section if those persons are selected: (a). from persons who have responded to a public advertisement for expressions of interest in the particular contract for which tenders are being invited; or; (b). from persons who have responded to a public advertisement for recognition as recognised contractors with respect to contracts of the same kind as that for which tenders are being invited.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________

APPENDIX 2 LOCAL GOVERNMENT (GENERAL) REGULATION 2005

Part 1 Preliminary: 1. 2. 3. 4. 5. 6. Name of Regulation Commencement Application of Regulation Definitions Requirements for contracts to which this Regulation applies Repeal

Part 2 Prerequisites for Tendering: 7. 8. 9. 10. 11. 12. 13. Council decide whether tenders are to be by open tendering or selective tendering Open Tendering Selective tendering method by which invitations to tender for proposed contract are made following public advertisement asking for expressions of interest Selective tendering method by which recognised contractors listed by Council are invited to tender for particular kinds of proposed contracts Tender documents Shortened tender period Extended tender period

Part 3 Submission and Opening Tenders: 14. 15. 16. 17. Submission of Tenders Custody of Tenders after receipt Opening of Tenders Tenders may be varied in certain circumstances

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Part 4 Determination of Successful Tenderer: 18. 19. 20. Consideration of Tenders Acceptance of Tenders Notification of Acceptance of Successful Tender

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Part 1 - Preliminary: 1. Name of Regulation: This Regulation is the Local Government (Tendering) Regulation 1999. 2. Commencement: This Regulation commences on 1 September 1999. 3. Application of Regulation: (1). This Regulation applies to all contracts for which a Council is required by Section 55 of the Act to invite tenders. Note: This Regulation does not apply to other kinds of contracts. However, a Council may apply provisions of the Regulation (with any necessary alterations) to other kinds of contracts if it wishes to do so. (2). 4. This Regulation applies to County Councils in the same way as it applies to Councils.

Definitions: (1). In this Regulation: “appropriate person”, in relation to a tender submitted to a Council, means a person designated by the General Manager to receive or deal with tenders submitted to the Council and, if a person is not designated, means the General Manager. “goods” includes materials. “instalment contract” means a contract requiring the payment of instalments by or to a Council over a period of two or more years. “public authority” includes a Council. “relevant newspapers”, in relation to a Council means: (a). (b). a Sydney metropolitan daily newspaper, and either or both of the following:(i). (ii). a newspaper circulating in the Council’s area

a newspaper circulating in the district where potential tenderers are likely to be carrying on business or to be residing. “tender” means a tender submitted or proposed to be submitted to a Council in accordance with the Regulation. “the Act” means the Local Government Act 1993.

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
(2). 5). The explanatory note, table of contents and notes in the text of this Regulation do not form part of this Regulation.

Requirements for Contracts to which this Regulation Applies: (1). (2). A Council may enter into a contract to which this Regulation applies only in accordance with the provisions of this Regulation. A contract to which this Regulation applies, and any variation or discharge of the contract, must be in writing and must be executed by or on behalf of the Council.

6).

Repeal: (1). (2). The Local Government (Tendering) Regulation 1993 is repealed. Any act, matter or thing that, immediately before the repeal of the Local Government (Tendering) Regulation 1993, had effect under that Regulation continues to have effect under this Regulation.

Part 2 – Prerequisites for Tendering: 7). Council to Decide whether Tenders are to be by Open Tendering or Selective Tendering: Whenever a Council is required by Section 55 of the Act to invite tenders before entering into a contract, the Council must decide which of the following tendering method is to be used: (a). (b). the open tendering method by which tenders for the proposed contract are invited by public advertisement. the selective tendering method by which invitations to tender for a particular proposed contract are made following a public advertisement asking for expressions of interest. the selective tendering method by which recognised contractors selected from a list prepared or adopted by the Council are invited to tender for proposed contracts of a particular kind.

(c).

8).

Open Tendering: (1). A Council that decides to use the open tendering method for a proposed contract must publish an advertisement in the relevant newspapers inviting tenders for the proposed contract. The advertisement must: (a). (b). express the purpose of the proposed contract, and give details of where and when tender documents relating to the proposed

(2).

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
(c). specify the name of a person to whom requests for information concerning the proposed contract may be addressed and how the person can bee contacted, and; invite any person willing to fulfil the requirements of the proposed contract to submit a tender to the Council by the deadline specified in the advertisement. The deadline must be a specified time on a date that is at lease 21 days after the date of publication or first publication of the advertisement. (3). 9). The tender documents relating to the proposed contract must comply with clause 11.

(d).

Selective tendering method by which invitations to tender for proposed contract are made following public advertisement asking for expressions of interest: (1). A Council that decides to use the selective tendering method referred to in clause 7(b) for allocating a particular proposed contract must publish in the relevant newspapers an advertisement inviting applications from persons interested in tendering for the proposed contract. Every such advertisement must include: (a). (b). a brief description of the work, goods, facilities, services or property concerned, and; the name of a person to whom requests for information concerning the proposed contract may be addressed and how he person can be contacted, and; The deadline for submitting applications. The deadline must be a specific time on a date that is at least 21 days after the date of publication or first publication of the advertisement. (3). A Council must consider all applications made in response to such an advertisement and, in so doing, must take into account: (a). (b). (4). the experience of the applicants in fulfilling the requirements of similar contracts, and; the capacity of the applicants to fulfil the requirements of the proposed contract.

(2).

(c).

After considering the applications, the Council may either: (a). send invitations in writing to all applicants, or such of them as the Council thinks will be able to fulfil the requirements of the proposed contract, to tender for the proposed contract, or; decline to invite tenders from any of the applicants.

(b).

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
(5). In inviting tenders from applicants, the Council must: (a). (b). invite theme to submit tenders to the Council by the deadline specified in the invitations, and; give details of where and when tender documents relating to the proposed contract can be obtained and the purchase price of those documents. The deadline must be a specified time on a date that is at least 21 days after the date of the invitation. (6). 10). The tender documents relating to the proposed contract must comply with clause 11.

Selective tendering method by which recognised contractors listed by Council are invited to tender for particular kinds of proposed contracts: (1). Before using the selective tendering method referred to in clause 7© for the allocation of proposed contracts of a specified kind, a Council must publish in the relevant newspapers an advertisement inviting applications from persons interested in tendering for proposed contracts of that kind so that the Council may prepare a list of suitable tenderers. Every such advertisement must include: (a). (b). a brief description of the kind of work, goods, facilities, services or property concerned, and the name of a person to whom requests for information concerning the proposed contracts may be addressed and how the person can be contacted, and; the deadline for submitting applications.

(2).

(c). (3).

A Council must consider all applications made in response to such an advertisement and, in so doing, take into account the experience of the applicants in fulfilling the requirements of, and their capacity to undertake, similar contracts. After considering an application under this clause, the Council may either: (a). (b). list the applicant as a recognised contractor for some or all of the kinds of work, goods, facilities, services or property specified in the application, or; reject the application in whole or part.

(4).

(5).

In seeking tenders for a particular proposed contract, a Council may invite some or all of the recognised contractors listed by it under this clause to tender for that contract and may do so on the basis of: (a). their capacity too fulfil the requirements of that contract, and;

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
(b). (6). the number of occasions on which each contractor has previously been invited to tender for similar proposed contracts.

In inviting tenders for a proposed contract from recognised contractors listed by the Council under this clause, the Council must: (a). (b). invite them to submit tenders to the Council by the deadline specified in the invitations, and; give details of where and when tender documents relating to the proposed contract can be obtained and the purchase price of those documents. The deadline must be a specified time on a date that is at least 21 days after the date of the invitation.

(7). (8).

The tender documents relating to the proposed contract must comply with clause 11. As an alternative to listing persons as recognised contractors in accordance with subclauses (1)-(4), a Council may adopt a list of contractors prepared by another public authority, but only if the list was prepared by the authority following the publication of an advertisement similar to that provided for under subclause (1). If a Council adopts such a list, the persons whose names appear on the list are taken to be recognised contractors for the kinds of work, goods, facilities, services or property specified in the list. A person who is a contractor recognised by a Council ceases to be so recognised if the person informs the Council in writing that the person no longer wishes to be listed as a recognised contractor for the purposes of this clause. Nothing in this clause requires a Council too take the action referred to in subclause (1) on each occasion that it decides to invite tenders under this clause.

(9).

(10).

(11). 11).

Tender Documents: (1). The tender documents relating to a proposed contract must:(a). give details of the work to be carried out, the goods or facilities too be provided, the services to be performed or the property to be disposed of and, if the proposed contract is an instalment contract: (i). (ii). (iii). (b). give details of the instalments to be paid by or to the Council, and; specify the period over which the instalments are to be paid, and; Specify the intervals between payment of the instalments, and;

specify the criteria on which the assessment of tenders will be based, and;

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
(c). specify the name of a person to whom requests for information concerning the proposed contract may be addressed and how the person can be contacted.

(2).

If a Council amends tender documents after they have been issued to persons, it must take all reasonably practicable steps to inform those persons of the amendments.

12).

Shortened Tender Period: (1). A Council that believes there are exceptional circumstances rendering inappropriate a deadline that would, but for this clause, be required to be specified in an advertisement under clause 8 or 9 or an invitation under clause 9 or 10 may decide on an earlier deadline. However, the earlier deadline must be a specified time on a date that is at least 7 days after: (a). (b). (2). the date of the publication or first publication of the advertisement, or; the date of the invitation.

A Council must keep a record of: (a). (b). the circumstances requiring an earlier deadline to be specified in such an advertisement or invitation, and; the name of the staff member who made the decision to change the deadline (if not made by the Council).

13).

Extended Tender Period: (1). If, having specified or included a deadline in an advertisement under clause 8, 9 or 10 or an invitation under clause 9 or 10, a Council becomes aware of circumstances that show that the deadline may not allow enough time for meaningful tenders or applications be submitted, it may extend the deadline by specifying a later deadline. If, at the time of extending the deadline, the Council has issued invitations to persons under clause 9 or 10 or has issued tender documents to persons, it must take all reasonably practicable steps to inform those persons, it must take all reasonably practicable steps to inform those persons of the later deadline. A Council must keep a record of: (a). (b). the circumstances requiring a later deadline to be specified in an advertisement or invitation, and; the name of the staff member who made the decision to change the deadline (if not made by the Council).

(2).

(3).

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________________________________________________________________________________ FORBES SHIRE COUNCIL – CONDITIONS OF TENDERING POLICY ________________________________________________________________________________
Part 3 - Submission and Opening of Tenders: 14). Submission of Tenders: (1). (2). A tender must be in writing and must be enclosed in a sealed envelope. However, a tender may be transmitted to a Councill by facsimile machine or electronic means, in which case the appropriate person must place the tender or a print-out of the tender in a sealed envelope. This subclause is subject to subclause (3) and clause 18(3). A tender may be transmitted too a Council by facsimile machine or electronic means only if that means of transmission is specified in the relevant tender documents.

(3).

15).

Custody of Tenders after Receipt: (1). A Council must:(a). (b). provide a secure tender box, and; ensure that: (i). (ii). all tenders submitted to it for a proposed contract are kept in the tender box, and; the tender box, when containing tenders, is dept in a safe and secure place,

Until the envelopes containing the tenders are opened in accordance with clause 16. (2). A Council must ensure that, whenever the Council’s office is open for business, its tender box is kept in a place that allows tenderers who wish to do so to deposit their tenders personally. 16. Opening of Tenders: (1). At the time specified for the close of tenders, the appropriate person must remove the envelopes containing the tenders from the Council’s tender box and open them in the presence of:(a). (b). (2). at least two (2) persons designated by the General Manager for the purpose, and; such tenderers and members of the public as wish to attend the opening.

A member of the public who attends the opening of tenders for a proposed contract is entitled, on request, to be informed as to whether the Council has received a particular tender and the number of tenders received.

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(3). As soon as practicable after the tenders for a proposed contract have been opened, the appropriate person must:(a). (b). (4). record the names of the tenderers and the amounts that appear to have been tendered for the contract, and; prepare a tender list specifying, in apparent order of those amounts, the names of the tenderers.

Immediately after preparing a tender list, the appropriate person must display the list in a place where it can be readily seen by members of the public. That person may add to the list such information as he or she considers appropriate.

17).

Tenders may be Varied in Certain Circumstances: (1). At any time before a Council accepts any of the tenders that it has received for a proposed contract, a person who has submitted a tender may, subject to subclause (2), vary the tender by:(a). (b). (2). providing the Council with further information by way of explanation or clarification, or; correcting a mistake or anomaly.

Such a variation may be made either: (a). (b). at the request of the Council, or; with the consent of the Council at the request of the tenderer, but only if, in the circumstances, it appears to the Council reasonable to allow the tenderer to provide the information or correct the mistake or anomaly.

(3).

If a tender is varied in accordance with this clause, the Council must provide all other tenders whose tenders have the same or similar characteristics as that tender with the opportunity of varying their tenders in a similar way. A Council must not consider a variation of a tender made under this clause if the variation would substantially alter the original tender. A Council must keep a record of:(a). (b). the circumstances requiring the variation of a tender, and; the name of the staff member handling the matter.

(4). (5).

Part 4 – Determination off Successful Tenderer: 18). Consideration of Tenders: (1). As soon as practicable after the tenders for a proposed contract have been opened, the Council must assess the tenders.

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(2). A Council must not consider a tender that is not submitted to the Council by the deadline for the closing of tenders. This subclause is subject to subclauses (3) and (4). A Council must consider a tender transmitted to it by facsimile machine or electronic means, but only if:(a). (b). (c). in the case of transmission by electronic means, that means of transmission was specified in the relevant tender documents, and; the transmission was received before the deadline for the closing of tenders, and; the tender is complete.

(3).

This subclause is subject to subclause (4). (4). If, in the relevant tender documents issued by the Council, a Council has specified that a tender will not be considered unless formal tender documents are submitted to the Council, then despite subclause (3), the Council is not obliged to consider a tender transmitted to it in accordance with that subclause unless:(a). the tenderer is able to satisfy the Council that formal tender documents and all other requisite essential information were posted or lodged at a Post Office or other recognised delivery agency before the deadline for the closing of tenders, and; the Council actually receives those documents within such period as it decides to be reasonable in the circumstances.

(b). (5).

A Council must also consider a tender received within such period after the deadline for the closing of tenders as it decides to be reasonable in the circumstances if the tenderer satisfies the Council that the tender documents and all other requisite essential information were posted or lodged at a Post Officer or other recognised delivery agency in sufficient time to enable the documents to have been received by the Council in the ordinary course of business before that deadline.

19).

Acceptance of Tenders: (1). After considering the tenders submitted for a proposed contract, the Council must either:(a). (b). (2). accept the tender that, having regard to all the circumstances, appears to it to be the most advantageous, or; decline to accept any of the tenders.

A Council must ensure that every contract it enters into as a result of a tender accepted by the Council is in accordance with the tender (modified by any variation under clause 17).

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(3). A Council that decides not to accept any of the tenders for a proposed contract or receives no tenders for the proposed contract must, by resolution, do one of the following:(a). (b). (c). (d). (e). (f). (4). postpone or cancel the proposal for the contract, invite, in accordance with clause 8, 9 or 10, fresh tenders based on the same or different details, invite, in accordance with clause 9, fresh applications from persons interested in tendering for the proposed contract, invite, in accordance with clause 9, fresh applications from persons interested in tendering for the proposed contract, enter into negotiations with any person (whether or not the person was a tenderer) with a view to entering into a contract, carry out the requirements of the proposed contract itself.

If a Council resolves to enter into negotiations as referred to in subclause (3) (e), the resolution must state the reasons for declining to invite fresh tenders or applications as referred to in subclause (3) (b)-(d).

20).

Notification of Acceptance of Successful Tender: As soon as practicable after entering into a contract in accordance with clause 19 or deciding not to accept any of the tenders for a proposed contract, a Council must:(a). send by post to all tenderers whose tenders were not accepted notices to the effect that their tenders were unsuccessful or, as the case may be, that none of the tenders for the proposed contract was accepted, and; display in a conspicuous place that is accessible to members of the public notice specifying the name of the tenderer whose tender was accepted and the amount of the successful tender or, if none of the tenders was accepted, a notice to that effect.

(b).

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APPENDIX 3 ICAC – HOW TO CONTRACT FOR SERVICES – A BEST PRACTICE MODEL (MAY 1995)

Outlined below are the issues to consider along with a more detailed explanation of each step:A. 1. 2. 3. 4. 5. Establish the need to Contract for Services:

Define the project’s requirements and prepare a statement of objectives; Define the expected outcomes; Estimate the cost of the project, prepare a budget and projection plan; Consider the options (eg. Use in-house expertise or contract out) and select the most appropriate option; Obtain approval for the project. B. Planning & Supervising the Process:

1. 2.

Decide who will oversee the project; Determine the composition of the assessment panel. Include people who have the skills and knowledge appropriate to the project; Panel members should be advised of the need to disclose potential conflicts of interest and any conflicts that may arise during the process;

3.

Establish reporting requirements including timetables for undertaking performance monitoring and evaluation.

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C. 1. 2. 3. 4.

Designing the Project Specifications:

Outline the service to be provided, focusing on desired outcomes; Determine the selection and evaluation criteria for assessing proposals and the weighting to be given to each criteria; Define the performance measures; Decide how the market will be tested; If, for example, the market is to be tested through tendering, determine how submissions will be invited, the information required from potential suppliers and the prescribed format for presenting submission.

5. 6. 7.

Specify how non-conforming proposals will be handled; Specify ownership of any intellectual property arising from the project; Prepare a project brief for potential suppliers. D. Market Testing/Inviting Submissions:

1.

Invite or seek submissions using methods that encourage the greatest competition (eg. Place advertisements in appropriate newspapers, journals etc). This decision should consider the value of the project and the most efficient, effective and practical method to seek and encourage competition.

2. 3. 4. 5.

Provide an equal opportunity to those who wish to submit a proposal; Ensure all potential suppliers have access to the same information as far as possible; Notify all respondents of any change in the requirements of the project. If not possible, or the project is fundamentally altered, consider recommencing the process. Maintain confidentiality of proposals.

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E. 1. 2.

Evaluating Proposals:

Request the disclosure of conflicts of interests of bidders and assessment panel members; The assessment panel must apply predetermined selection criteria consistently. Evaluation should be completed promptly. The perceived integrity of the process may suffer if there is undue and unadvised delay; Document any negotiations undertaken and state the purpose of the negotiations. Negotiations should be undertaken by a team and may include an independent person to protect impartiality; Document all the steps in the process. Details any reference checks, and record the reasons for the final selection and rejection of unsuccessful submissions; Acceptance of the recommended proposal to be approved by the appropriate senior officer; Advise the winning bidder and organise contractual arrangements; Provide all bidders with the name of the successful bidder. F. Managing the Contract:

3.

4. 5. 6. 7.

1. 2.

Oversee the project according to the established reporting requirements and procedures. Ensure performance reviews, based on predetermined performance measures, are undertaken at agreed time frames and milestones. G. Evaluation Performance:

1. 2.

Oversee the project according to the established reporting requirements and procedures. Provide feedback to the contracting agency and the consultant/contractor.

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APPENDIX 4 CONTRACTING FOR SERVICES

PROBITY CHECK LIST: Obtaining Value:  Regular market testing should be undertaken to enable new options to be considered. Existing contractors should be encouraged to perform and new suppliers must be given the chance to compete. Project specifications should be incorporated into predetermined selection criteria. These specifications should include the approximate cost of the project, expected outcomes and the skills and expertise expected of the service provider. The information provided to bidders should allow proper assessment of the predetermined criteria.





Transparency of Process:  * Invitation documents should be designed to elicit the information necessary for proper assessment of each of the selection criteria. Bids must be assessed consistently, using predetermined criteria available to all potential bidders. The determined criteria should be established and documented prior to calling for bids. The awarding of a contract should not be decided from a pre-registered list or from expressions of interest, unless full information, based on predetermined specifications, has been asked for an assessed. For a purchasing process to be fair – and be seen to be fair - criteria should not be changed midstream unless all bidders are given an equal opportunity to revise their bids. Criteria should never be altered to give advantage to any particular party and all bidders should have access to the same information. Confidential information must be protected and no information should be provided for the benefit, or to the detriment, of particular parties. Any extensions of time granted, must be granted to all bidders.

*

* * * *

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Dealing with Conflicts of Interest:  An organisation should establish policies to deal with conflicts of interest at the outset, rather than attempting to manage such issues part way through a purchasing process. Members of evaluation or assessment panels for service suppliers should be selected on the basis of their expertise. Consideration should be given to including an independent panel member who can help to ensure impartial decisions are made. Prior to their appointment to the assessment panel, members should be made aware of the need to disclose any potential conflicts of interest. Members must also disclose any conflicts of interest arising during the purchasing process. Potential service suppliers must be required to divulge all potential conflicts of interest at the time they offer to provide services. Failure to make adequate disclosure may be grounds for ending the contract.



*



Accountability:  Records should be maintained throughout the purchasing process, detailing evaluation criteria, weightings, decision-make processes and decisions made. These records should provide sufficient information to enable audit and independent review functions to be carried out. Departure from established procedures for purchasing of services should only be for sound, well-documented reasons. These reasons should be approved at senior level by those not directly involved in the process. Bids, submissions, expressions of interest and the like, should be assessed by more than one person. The process should incorporate suitable internal and external experts to ensure sound and accountable decision-making. For large, complex or controversial contracts, consideration should be given to the appointment of a probity auditor who can provide external scrutiny and ensure integrity of the process.







Monitoring and Evaluation Performance:  Regular and systematic monitoring of performance must be undertaken to determine whether requirements are being satisfied. Complete an evaluation at the end of the contract taking into account the complexity, quality, duration, cost and any other key issues relating to the service provided. Outcomes should be measured against the stated objectives.



Process:  The procedures used to select a contractor/supplier/consultant whether by Tender or Quotation are documented in Council’s Tender and Quotation Policy A3.07. This Policy is binding on Council staff and Council Committees.

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APPENDIX 5 IMPORTANT POINTS To be read in conjunction with the ‘Tendering’ & Purchasing & Procurement’ Policy

1.

Identify the purchasing value in order to ascertain procurement requirements as per Council’s ‘Purchasing and Procurement’ Policy. Where any procurement transaction may generate negative perceptions including conflicts of interest, corruption, sensitivity about process or decisions tenders maybe invited. Where the requirement to tender is identified the action must be resolved by Council at the Ordinary Meeting stating the acquisition and contract purpose. Where an in-house tender may be supplied this must be resolved by Council. The tender scope and specifications should be carefully determined together with evaluation criteria and weightings. Specifications should be determined utilising all expected service delivery requirement, variations on the contract should not be necessary on practical implementation. The tender package must include Council’s Statement of Business Ethics. Where an in-house tender is submitted it is imperative that high levels of independence and transparency are maintained. Refer to the ‘Tendering’ Policy for required treatment. The tender must be advertised for a period no less than 21 days in a Sydney metropolitan paper and the Forbes Advocate. The Finance Officer must be advised of the intent to advertise the tender to enable record of contract. The opening and evaluation of the tender must be dealt with in accordance with the ‘Conditions of Tendering’ Policy. The contractor performance evaluation system should be consulted to ensure unsatisfactory contractors are not awarded repeat work. The panels recommendation must be clearly stated setting out the assessment criteria and applicable weighting applied against each tender. This recommendation may be resolved by Council. The draft contract should include performance criteria and milestones as well as Council’s Statement of Business Ethics. This document should be forwarded to the Corporate Services Department for review prior to signing by parties. Ongoing review of contractors performance to be maintained by duplicate record filed by Council within the contractor performance evaluation.

2.

3.

4. 5.

6.

7.

8.

9.

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APPENDIX 6 S TENDER PROCESS FLOW CHART

OBTAIN APPROVAL FROM COUNCIL TO CALL TENDER

ISSUE TENDER NO & RECORD IN TENDER REGISTER

LIASE WITH RESPONSIBLE OFFICER TO PREPARE TENDER

ENSURE 'CHECKLIST' IS FULLY ADHERED TO

RESPONSIBLE OFFICER TO CHECK AND SIGN

ADVERTISE TENDER

CLOSE TENDER

OPEN TENDER

ANALYSIS

REPORT TO COUNCIL FOR RECOMMENDATION

ADVISE SUCCESSFUL TENDERER AND ARRANGE EXECUTION

EXECUTE

ADVISE UNSUCCESSFUL TENDERERS

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APPENDIX 7 S Tender Preparation and Checklist
TENDER NO. TENDER RESPONSIBLE OFFICER DATE SUBMITTED TOCOUNCIL ISSUE DATE CLOSING DATE & TIME INCLUSION CHECK LIST.. _________________________________________ ______________________________________________ __________________________________________ _____________________________________________ _____________________________ ____________________________ SUPPORTING MATERIAL INSURANCE TENDER PERIOD SPECIAL CONDITIONS PRICE SCHEDULES CODE OF CONDUCT FSC TENDER POLICY OTHER INCLUSIONS SPECIFIC TO TENDER_______________________ _______________________ SIGNED RESPONSIBLE OFFICER…………………………………………………………………… (DOCUMENT CHECKED & APPROVED FOR DISTRIBUTION) YES NO

TENDER TENDER DISTRIBUTION, RECEIVED & EXECUTED
CLOSING DATE & TIME INCLUSION CHECK LIST.. SUPPORTING MATERIAL INSURANCE TENDER PERIOD SPECIAL CONDITIONS PRICE SCHEDULES CODE OF CONDUCT FSC TENDER POLICY OTHER INCLUSIONS SPECIFIC TO TENDER_______________________ _______________________ SIGNED RESPONSIBLE OFFICER…………………………………………………………………… (TENDER EXECUTED & COMPLETE) YES NO

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