REQUEST FOR TENDERS:

Transcription

1 REQUEST FOR TENDERS: PROVISION OF LEGAL SERVICES NCT 4/3/2/2/6 CLOSING DATE: 17 February

2 TABLE OF CONTENTS PAGE 1. BACKGROUND SERVICES REQUIRED TECHNICAL SPECIFICATIONS TECHNICAL COMPONENT TRACK RECORD COMPONENT COST PROPOSAL TERM OF CONTRACT EVALUATION CONDITIONS FOR TENDERS SPECIAL CONDITIONS OF TENDER GENERAL CONDITIONS OF TENDER PROCEDURES FOR SUBMITTING TENDERS FINAL APPROVAL ENQUIRIES...11 ANNEXURE A: SUPPLIER DETAILS

3 1. BACKGROUND The National Credit Act, No. 34 of 2005 ( NCA ), makes provisions for the establishment of a National Consumer Tribunal ( Tribunal ). The functions of the Tribunal are fully detailed in Section 27 of the Act. The Tribunal is expected to adjudicate on cases of inter alia non-compliance with this Act as well as the Consumer Protection Act, 68 of 2008 ( CPA ). Consumers and credit providers may also appeal to the Tribunal against any decision of the National Credit Regulator and the National Consumer Commission. The Tribunal consists of a Chairperson, 2 full time Tribunal members and 12 part time Tribunal members who all have been appointed by the President of South Africa to adjudicate over matters referred to the Tribunal and applications brought to the Tribunal in terms of the NCA and CPA. In terms of the staff complement, the total complement will not exceed 33 staff members in Due to its size, the Tribunal has decided to outsource key support areas such as legal services. Tenderers are by invited to submit proposals to provide legal services, in line with the requirements outlined in this document. The closing date of this tender is at 14h00 on the 17 February SERVICES REQUIRED Legal firms (as well individuals specializing in the provision of legal services) interested in providing legal advisory services and legal support to the Tribunal are invited to provide proposals that would cover the following activities: - Legal services in terms of the National Credit Act and the Consumer Protection Act, including but not limited to the following:- Provide the Tribunal with specific written recommendations on amendments to the Act, Rules and Regulations in terms of the National Credit Act and the Consumer Protection Act. Provide the Tribunal with legal advice on consumer and credit issues and, as necessary, on international consumer and credit issues. Assist in the communication of concerns involving credit and consumer related issues to legislators, Tribunal members, staff, consultants, advisors, and other parties, including testifying before or reporting to elected or appointed officials in government. Present formal and informal legal opinions, concerning consumer and credit related matters, including obtaining necessary opinions, rulings, and 2

4 other documents from the SA Revenue Service, National Treasury, and other government regulatory bodies as requested by the Chairman or Registrar, or their designees. Assist with the evaluation of cases in terms of the Rules of the Tribunal during periods of high case load Assist with the analysis of cases during periods of high case load. Represent the Tribunal on matters that are appealed against. Administrative legal support and advice, including but not limited to the following:- Advise the Tribunal on compliance with applicable government laws, rules, regulations, policies and procedures; Development and review of Tribunal policies; Provide advice and written legal opinions on fiduciary duties and structure, as well as on corporate governance and administrative issues. Develop training material and train members and staff on procedural and substantive matters pertaining to the National Credit Act and the Consumer Protection Act. Law of contracts, including but not limited to the following:- Prepare, review and advise the Tribunal in the negotiation and drafting of various management and consulting contracts, as and when required. Development and review of corporate contracts (e.g. service level agreements, lease agreements etc); Provide legal advice on the implications of outsourcing certain services, and ensure that the Tribunal s interests are protected. Labour Law and employment related matters, including but not limited to the following:- Represent the Tribunal on labour relation matters. 3

5 Development and review of human resources and labour related contracts; Provision of advice on disciplinary and grievance-related matters; General Attend meetings at the request of the Chairman or Registrar or their designees. Acting as the Tribunal s legal representative on matters relating to the functioning of the Tribunal In this regard Tenderers must demonstrate the ability to render a service that is efficient, coupled with good turn around times. 3. TECHNICAL SPECIFICATIONS 3.1 Technical Component The Tenderer shall provide a description of services proposed, specifically covering the areas outlined in section 2 above. In addition, a comprehensive list of services being offered together with the area of legal specialization, for instance: - Analysis and drafting of Legislation Consumer and Credit related legislation Commercial Law Competition Law Constitutional Law Financial law (collective investments, insurance, financial markets and pension law) Labour Law Law of Contracts 4

6 3.2 Track Record Component Team Provide resumes of financial institution officers that will be directly involved in the management of the Tribunal account; who the primary contact will be; and what, if any, experience these officers have in working with public sector clients References a) Provide three (3) current references in the public sector, (and if possible, where similar services were provided) who can attest to the bidder s experience as it relates to providing legal services. Such information should include: - the length of time you have provided services, client name, contact name and position in company, address, phone number, and address. b) Provide three (3) previous clients where similar services were provided but who have terminated services in the last three years. Include the following details: - client name, contact name and position in company, address, phone number, and address. 3.3 Cost Proposal Provide the proposed hourly rates for, and indicate how long the prices are valid for. A tender that does not include the pricing schedule as requested will be disqualified. 5

7 4. DESIRED QUALIFICATIONS REQUIREMENT a) Member of a South African Judiciary Bar (e.g. the Johannesburg Bar) or a reputable Legal Profession Association (e.g. the Black Lawyers Association). b) Bidder must have five (5) years experience providing similar services requested under this RFP, to public entities, and such representation must be a material specialization of the bidder; c) Substantial knowledge and experience in the interpretation of laws; d) Substantial experience in working with agencies and public entities similar to the Tribunal; e) Experience in aspects of financial and/ or credit law. f) The selected firm or individual will be required to declare that it will represent the Tribunal to the exclusion of all other clients having potential conflicts with the interests of the Tribunal. g) Bidder must agree to maintain malpractice or errors and omissions insurance of a minimum single occurrence value of R1 million, and R5 million aggregate. h) Bidder must agree that any resulting contract will be subject to and interpreted under the laws of South Africa. i) Bidder must agree that this RFP and the bidder s response will be incorporated by reference to any 6 TENDERER S RESPONSE: INDICATE YES OR NO ATTACHMENTS Also attach proof of membership; State References State References State References State References Attach proof.

8 REQUIREMENT resulting contract. TENDERER S RESPONSE: INDICATE YES OR NO ATTACHMENTS 5. TERM OF CONTRACT The service level agreement resulting from this request for proposals shall be for a five (5) year period. This five (5) year period is subject to an annual review of the quality of service provided to the Tribunal. The Tribunal reserves the right to terminate the agreement upon the unsatisfactory outcome of the annual review performed. 6. EVALUATION The proposals will first be evaluated for functionality. The functionality component consists of two areas that proposals will be evaluated on namely a technical component and a track record and experience component. A minimum score of 90% should be obtained on functionality before a proposal will be considered for further evaluation. Details of the functionality scoring and how the point will be allocated are as follows: CRITERIA FUNCTIONALITY Technical (60) o Services being offered and approach o Project plan o Deliverables and turnaround times Track Record and Experience (40) o Credentials and experience of team members o Resources available to meet the project deliverables o Quality of references WEIGHT Total score 100 7

9 The Tribunal will apply the 90:10 Preference Point System in the evaluation of the proposals that obtained a score of at least 90% for functionality. The points will be allocated as follows: CRITERIA Price 90 B-BBEE Status level 10 Total score 100 WEIGHT B-BBEE status level points will be awarded in accordance with the table below: B-BBEE Status Level of Contributor Number of points Non-compliant contributor 0 8

10 7. CONDITIONS FOR TENDERS 7.1 Special Conditions of Tender a) Provision of Travel management services, for the Tribunal, which is located at: - Ground Floor, Building B Lakefield Office Park 272 West Avenue Corner of West Avenue and Lenchen Avenue North Centurion 0046 b) The service shall be in accordance with the specifications and conditions of the tender. c) A tender will be disqualified should any attempt be made by the tenderer, either directly or indirectly, to canvass the Tribunal, or any of its consultants or employees in respect of a tender between the date of the tender and the date of the award. d) Preference will be given to tenders that address all the requirements contained in this tender document. 7.2 General Conditions of Tender All Tenderers responding to this request must meet the following conditions in order to be considered: a) The tender must include a cover letter clearly stating the name of the firm and the name, address, and telephone number of the tenderer s representative; b) Annexure A (Supplier Details) must be properly completed, signed and stamped by a Commissioner of Oaths. c) The bidder must complete the attached SBD4, SBD8 and SBD9 forms. 9

11 d) Proof of annual turnover (e.g. copies of the previous two years audited financial statements) in cases where the business has been operation for more than a year. e) An original valid tax clearance certificate obtained from the SA Revenue Services must be provided or proof from SARS that the supplier has no outstanding obligations or has made arrangements to meet outstanding obligations. f) The tenderer must address each of the requirements as stated in sections 2 and 4 above. g) The Tenderer must include the pricing schedule required in Section 3 above. h) Each tender document supplied is for the tenderer only and may not be copied and submitted by another service provider; i) The tenderer shall furnish such additional information that the Tribunal may require; j) The Tribunal will not be liable for any cost incurred in the preparation of tender responses; k) The Tribunal may invite tenderers for an oral interview prior to the approval of a tender. The Tribunal will not be liable for the costs incurred by the tenderer in connection with such interview. l) Any false declaration of information will result in the exclusion of the tender from consideration. 8. PROCEDURES FOR SUBMITTING TENDERS The closing date of this tender is at 14H00 on 17 February Tenders must reach the Tribunal before or on the closing date and time. Late submissions will not be considered. Proposals may be hand-delivered, posted or delivered by courier. or faxed responses will not be considered. 10

12 All proposals must be clearly marked on the outside of the envelope: Tender No. NCT 4/3/2/2/6: Legal Services and addressed to: - The acting registrar The National Consumer Tribunal Ground Floor, Building B Lakefield Office Park 272 West Avenue Corner of West Avenue and Lenchen Avenue North Centurion FINAL APPROVAL The Tribunal reserves the right not to accept the lowest bid. The Tribunal also reserves the right to reject any or all of the submitted proposals, and/or not to appoint any service provider at all. 10. ENQUIRIES Enquiries may be directed to Ms Anel Burger by telephone at or at aburger@thenct.org.za. 11

13 ANNEXURE A: SUPPLIER DETAILS SUPPLIER APPLICATION FORM 2014 IMPORTANT NOTES Please read carefully To be completed by all vendors seeking registration as an approved supplier; The questionnaire must be completed in full and be signed; A company profile may accompany the registration form but will not be accepted as substitute for the application form all fields on application form MUST be completed by applicant; Applicants will be contacted via fax and must therefore submit an operating fax number; failure to comply will result in excluding the supplier from the data base; It should be noted that the TRIBUNAL reserves the right to accept or reject any application without being obliged to give any reasons in this respect; Suppliers will not be notified whether application was accepted or not but will be advised of the outcome if telephonically requested; Supplier must comply with all the registration-criteria for registration to be finalised - failure to do so may result in the application being declined. Supplier detail: Company / Supplier Name: Company / Close Corporation Registration Number VAT registration number (if applicable): Income tax reference number: Web Address: Address: Telephone Number: Fax Number: (compulsory) Toll Free Number: Number of full time employees: Postal Address: (compulsory) Physical Address: Postal Code: Company/Supplier Classification: (Please the relevant box or boxes) ISO Listed Importer Services Manufacturer Repairer Black Owned Distributor Exporter Sales (Please the relevant box) Tax Clearance Certificate (Please attach to application form) Attached To Follow Expiry date: Supplier Grouping Detail: Type of Firm: (Please the relevant box) 12

14 1 Public Company (Ltd) x 7 Sole Proprietor 2 Private company (Pty) Ltd 8 Foreign Company 3 Closed Corporation (cc) 9 Partnership 4 Other (specify) 10 Trust 5 Joint Venture (JV) 11 Section 21 Company 6 Consortium 12 Government / Parastatals Main contact person in your company: Name: Company Position: Cell phone Number: ID Number : address: Contact person (Sales) in your company: Name: Position in company: Cell Phone Number: ID Number: address: List all partners, proprietors and shareholders (Compulsory) Name Position occupied in the enterprise Citizenship ID Number Author: A Burger Note: Where owner are themselves a company or partnership, owners of the holding firm must be identified. SMME status of your enterprise: Please use this table to determine the SMME Status of your enterprise 13

15 (Please the relevant box in each column) A. Sector B. Full time paid employees C. Annual Turnover (millions) Very Medium Small Small Micro Medium Small Author: A Burger Very Small Micro Medium Small D. Total Gross asset value (property excluded) (millions) Very Small Agriculture Mining and Quarrying Manufacturing Construction Retail and Motor trade Wholesale Trade Catering, Accommodation Transport, Storage Finance & Business Services Repair/Allied Services Communications Other Trade Commercial Agents Community& Social Services Personal Services SMME status of your enterprise (Compulsory) (according to SMME table above) Please the relevant box Micro Very Small Small Medium Large Micro Trade names: Maximum of 10 will be registered Trade names (Example: Brother) Description (Example: Cartridge) 14

16 HDI Ownership Status: Please read notes below very carefully Instructions and Definitions: (Please read carefully before completing HDI Ownership Status) Legislation: Procedures are set out in the Accounting Officers Procurement Procedures (AOPP), as referred to in the Public Finance Management Act, 1999 (Act 1 of 1999) (PFMA), to give all prospective suppliers an equal opportunity to submit quotations to a State Department or Public entity. Terminology: Commodities: The commodities the company wishes to be registered for as a supplier to the Department. Only 8 will be registered be sure to select your core business activities. Trade Names: The trade names that the company own or distribute, which you wish to be registered for as a supplier to the Tribunal. Owned: Having all the customary elements of ownership, including the right of decisionmaking and sharing all the risks and profits commensurate with the degree of ownership interests as demonstrated by an examination rather than the form of ownership arrangements. Previously Disadvantaged Individuals (PDI): For the purpose of registering as a supplier for the Tribunal, the refutable presumption shall be made that SA citizens who fall into population groups that had no franchise in national elections prior to the introduction of the 1983 and 1993 constitution are Previously Disadvantaged Individuals. It is incumbent on individuals to demonstrate their claims to fall into such population groups on the basis of identification and association with and recognition by the members of such a group. Women: A female person who is a SA citizen. Establishment of PDI / Women Equity Ownership in a enterprise: Equity ownership shall be equated to the percentage of an enterprise which is owned by individuals, or in the case of a company, the percentage shares that are owned by individuals who are actively involved in the management and daily business operations of the enterprise and exercise control over the enterprise, commensurate with their degree of ownership. Where individuals are not actively involved in the management and daily business operations and do not exercise control over the enterprise commensurate with their degree of ownership, equity ownership may not be claimed. 15

17 HDI Ownership Status: (Failure to complete this section will result in the application being declined) Previously Disadvantaged Individuals (PDI) % Women Equity (WE) % Disabled Individuals (DA) % Declaration of any conflict of interest: I/we the undersigned acknowledge(s) that: The information furnished is true and correct The Equity Ownership claimed is in accordance with the General Conditions Any conflict of interest will be declared in the comment space below SIGNATURE OF OWNER OR AUTHORISED REPRESENTATIVE DATE SIGNATURE OF OWNER OR AUTHORISED REPRESENTATIVE DATE Comments / Notes: COMMISSIONER OF OATHS STAMP: 16

18 PLEASE COMPLETE QUESTIONNAIRE A OR B Questionnaire A: INDIVIDUALS Please answer the questions by marking the appropriate column with an X. Please do not leave out any question relating to your specific circumstances. Contractor/Supplier Name: Natural Persons: Surname: Initials: First two names: Title: ID number or passport number: Nationality: Income Tax reference number: Date of birth: If not a citizen of the RSA, furnish a certified copy of a work permit: Postal address and code: Residential address and code: Telephone numbers: Facsimile numbers: address: If in possession of a tax directive, furnish a certified copy thereof: Jurisdiction in which contractor is ordinarily resident i.e. place of permanent residence: Question Yes No 17

19 18 Author: A Burger Question Yes No 1. Do you supply services on behalf of a Labour Broker? 2. Are you subject to the control or supervision of the TRIBUNAL? Including, but not limited to, the following: The manner of duties performed; The hours of work; The quality of work. 3. Are you paid at regular intervals i.e. daily, weekly, monthly etc? (If the payments are made at regular intervals or by a rate per time period) 4. Will payment to you include any benefits? Including, but not limited to, the following: Leave pay; Medical aid; Training; Sick Leave. 5. Will, or have you be/been in the full time employment of the TRIBUNAL? 6. Will you require of the TRIBUNAL to provide any equipment, tools, materials or office space, in order to fulfill the contract? 7. Do you supply these, or similar, services only to the TRIBUNAL and not to any other client or the general public? 8. Will you be required to work more than 22 hours per week? 8.1 If yes, will payment be made on an hourly, daily or weekly basis? Will you work solely for the TRIBUNAL? Will you provide a written statement to this effect? How much will you be paid per day? Non-Residents of the RSA 9. Will you return to your jurisdiction of residence upon the termination of the contract? 10. Is the contract to exceed a period of three years? 11. Will you be returning to the jurisdiction of residence during the course of the contract? If so, for what periods of time? 12. Is your employer resident in the Republic of South Africa or does a permanent establishment or branch represent the employer in the Republic? 13. If a permanent establishment or branch represents the employer in the Republic, will your salary be paid from such permanent establishment or branch? 14. Will you be required to perform any work outside of the

20 Question Yes No Republic? 15. Do you agree to submit copies of your passport should the TRIBUNAL, so require? PARTICULARS OF PERSON ACTING AS REPRESENTATIVE OF THE ENTERPRISE I, the undersigned, confirm that the information provided above is accurate, and that while in receipt of payment from the Tribunal, will inform the Tribunal of any changes that take place pertaining the information provided above. Representative s Capacity Contact Number Full Names: Signature: : Date: 19

21 PLEASE COMPLETE QUESTIONNAIRE A OR B Questionnaire B: ALL BIDDERS EXCLUDING INDIVIDUALS Please answer the questions by marking the appropriate column with an X. Please do not leave out any question relating to your specific circumstances. Contractor/Supplier Name: Corporate Contractors (including companies, close corporations and trusts): Registered name and furnish a certified copy of registration: Nature of legal entity: Trade name: Registration number: Date of incorporation: Jurisdiction of incorporation: Jurisdiction where effective management is performed: Income tax reference number: Employees Tax reference number: Value Added Tax number and furnish a certified copy of VAT 103 Certificate: Postal address and code: Physical address and code: Telephone numbers: Facsimile numbers: address: 20

22 Question Yes No 1. Are you a Labour Broker i.e. do you provide payment for supplying the TRIBUNAL with a person/s? If so, furnish a certified copy of an IRP30, which is valid for the period of the contract. 2. Is the service to be rendered personally by any person, who is a connected person, in relation to the entity? (For example a shareholder, member or their direct family) 3. Do you employ four or more employees on a full time basis throughout the year, excluding connected parties? If so, are these employees engaged in rendering the service to the TRIBUNAL? (For example secretarial employees would NOT be so engaged) 4. Would you be regarded as an employee of the TRIBUNAL if the service was rendered by the person directly to the TRIBUNAL, other than on behalf of the contractor? 5. Do you, the Company, Close Corporation or Trust receive any form of training supplied or paid for by TRIBUNAL? If yes, please specify the nature and extent of the training: 6. Are you, the Company Close Corporation or Trust free to choose which tools or equipment, or staff, or raw materials, or routines, patents and technology to use in performing your main duties? 7. In order to perform your main duties, do you, or does such a person, Company, Close Corporation or Trust, use any tools or equipment supplied or paid for by TRIBUNAL? If yes, please state the nature thereof: 8. Are you subject to the control or supervision of the TRIBUNAL, as to the manner in which, or hours during which, the duties are performed or are to be performed in rendering the service? 9. Will the amounts paid or payable in respect of the service consist of, or include, earnings of any description, which are payable at regular daily, weekly, monthly, or other intervals? 10. Will more than 80% of your income, during the year of assessment, from services rendered, consist of or be likely to consist of amounts received directly or indirectly from any one client, or any associated institution, in relation to the client? 11. Does your contract contain any elements of an employment contract? [i.e. Job titles, reporting structure in organisation, fixed working hours, employment benefits, performance 21

23 Question Yes No bonuses (excluding bonus and penalties for early or late delivery)] 12. Does your contract contain any clause that will enable you to receive payment, even if no work was done? 13. Have you ever been classified as a Labour Broker or personal services company (including Close Corporation and Trust) by SARS or any other client? 14. If the answer to question 13 was "yes", did anything change that no longer classifies you as a labour broker or personal services company? If "yes", elaborate: PARTICULARS OF PERSON ACTING AS REPRESENTATIVE OF THE ENTERPRISE I, the undersigned, confirm that the information provided above is accurate, and that while in receipt of payment from TRIBUNAL, will inform TRIBUNAL of any changes that take place pertaining the information provided above. Representative s Full Names: Capacity: Contact number: Signature: Date: 22

24 SBD 4; SBD 8 and SBD 9 SBD 4 DECLARATION OF INTEREST 1. Any legal person, including persons employed by the state¹, or persons having a kinship with persons employed by the state, including a blood relationship, may make an offer or offers in terms of this invitation to bid (includes a price quotation, advertised competitive bid, limited bid or proposal). In view of possible allegations of favouritism, should the resulting bid, or part thereof, be awarded to persons employed by the state, or to persons connected with or related to them, it is required that the bidder or his/her authorised representative declare his/her position in relation to the evaluating/adjudicating authority where- - the bidder is employed by the state; and/or - the legal person on whose behalf the bidding document is signed, has a relationship with persons/a person who are/is involved in the evaluation and or adjudication of the bid(s), or where it is known that such a relationship exists between the person or persons for or on whose behalf the declarant acts and persons who are involved with the evaluation and or adjudication of the bid. 2. In order to give effect to the above, the following questionnaire must be completed and submitted with the bid. 2.1 Full Name of bidder or his or her representative: Identity Number:. 2.3 Position occupied in the Company (director, trustee, shareholder²): Company Registration Number: Tax Reference Number: VAT Registration Number: The names of all directors / trustees / shareholders / members, their individual identity numbers, tax reference numbers and, if applicable, employee / personnel numbers must be indicated in paragraph 3 below. 23

25 ¹ State means (a) any national or provincial department, national or provincial public entity or constitutional institution within the meaning of the Public Finance Management Act, 1999 (Act No. 1 of 1999); (b) any municipality or municipal entity; (c) provincial legislature; (d) national Assembly or the national Council of provinces; or (e) Parliament. ² Shareholder means a person who owns shares in the company and is actively involved in the management of the enterprise or business and exercises control over the enterprise. 2.7 Are you or any person connected with the bidder YES / NO presently employed by the state? If so, furnish the following particulars: Name of person / director / trustee / shareholder/ member:... Name of state institution at which you or the person connected to the bidder is employed :. Position occupied in the state institution:.... Any other particulars: If you are presently employed by the state, did you obtain YES / NO the appropriate authority to undertake remunerative work outside employment in the public sector? If yes, did you attached proof of such authority to the bid YES / NO document? (Note: Failure to submit proof of such authority, where applicable, may result in the disqualification of the bid If no, furnish reasons for non-submission of such proof: Did you or your spouse, or any of the company s directors / YES / NO trustees / shareholders / members or their spouses conduct business with the state in the previous twelve months? If so, furnish particulars:

26 2.9 Do you, or any person connected with the bidder, have YES / NO any relationship (family, friend, other) with a person employed by the state and who may be involved with the evaluation and or adjudication of this bid? If so, furnish particulars Are you, or any person connected with the bidder, YES/NO aware of any relationship (family, friend, other) between any other bidder and any person employed by the state who may be involved with the evaluation and or adjudication of this bid? If so, furnish particulars Do you or any of the directors / trustees / shareholders / members YES/NO of the company have any interest in any other related companies whether or not they are bidding for this contract? If so, furnish particulars:.. 3 Full details of directors / trustees / members / shareholders. Full Name Identity Number Personal Tax Reference Number State Employee Number / Persal Number 4 DECLARATION I, THE UNDERSIGNED (NAME) 25

27 CERTIFY THAT THE INFORMATION FURNISHED IN PARAGRAPHS 2 and 3 ABOVE IS CORRECT. I ACCEPT THAT THE STATE MAY REJECT THE BID OR ACT AGAINST ME IN TERMS OF PARAGRAPH 23 OF THE GENERAL CONDITIONS OF CONTRACT SHOULD THIS DECLARATION PROVE TO BE FALSE... Signature. Position.. Date Name of bidder SBD 8 DECLARATION OF BIDDER S PAST SUPPLY CHAIN MANAGEMENT PRACTICES 1. This Standard Bidding Document must form part of all bids invited. 2. It serves as a declaration to be used by institutions in ensuring that when goods and services are being procured, all reasonable steps are taken to combat the abuse of the supply chain management system. 3. The bid of any bidder may be disregarded if that bidder, or any of its directors: a) have-abused the institution s supply chain management system; b) committed fraud or any other improper conduct in relation to such system; or c) failed to perform on any previous contract. 4. In order to give effect to the above, the following questionnaire must be completed and submitted with the bid. Item Question Yes No 26

28 4.1 Is the bidder or any of its directors listed on the National Treasury s Database of Restricted Suppliers as companies or persons prohibited from doing business with the public sector? (Companies or persons who are listed on this Database were informed in writing of this restriction by the Accounting Officer/Authority of the institution that imposed the restriction after the audi alteram partem rule was applied). The Database of Restricted Suppliers now resides on the National Treasury s website ( and can be accessed by clicking on its link at the bottom of the home page If so, furnish particulars: 4.2 Is the bidder or any of its directors listed on the Register for Tender Defaulters in terms of section 29 of the Prevention and Combating of Corrupt Activities Act (No 12 of 2004)? The Register for Tender Defaulters can be accessed on the National Treasury s website ( by clicking on its link at the bottom of the home page If so, furnish particulars: Yes Yes No No 4.3 Was the bidder or any of its directors convicted by a court of law (including a court outside of the Republic of South Africa) for fraud or corruption during the past five years? If so, furnish particulars: Yes No 4.4 Was any contract between the bidder and any organ of state terminated during the past five years on account of failure to perform on or comply with the contract? If so, furnish particulars: Yes No CERTIFICATION: 27

29 I, THE UNDERSIGNED (FULL NAME)... CERTIFY THAT THE INFORMATION FURNISHED ON THIS DECLARATION FORM IS TRUE AND CORRECT. I ACCEPT THAT, IN ADDITION TO CANCELLATION OF A CONTRACT, ACTION MAY BE TAKEN AGAINST ME SHOULD THIS DECLARATION PROVE TO BE FALSE.... Signature.. Date. Position.. Name of Bidder SBD 9 CERTIFICATE OF INDEPENDENT BID DETERMINATION 28

30 1 This Standard Bidding Document (SBD) must form part of all bids¹ invited. 2 Section 4 (1) (b) (iii) of the Competition Act No. 89 of 1998, as amended, prohibits an agreement between, or concerted practice by, firms, or a decision by an association of firms, if it is between parties in a horizontal relationship and if it involves collusive bidding (or bid rigging).² Collusive bidding is a per se prohibition meaning that it cannot be justified under any grounds. 3 Treasury Regulation 16A9 prescribes that accounting officers and accounting authorities must take all reasonable steps to prevent abuse of the supply chain management system and authorizes accounting officers and accounting authorities to: a. disregard the bid of any bidder if that bidder, or any of its directors have abused the institution s supply chain management system and or committed fraud or any other improper conduct in relation to such system. b. cancel a contract awarded to a supplier of goods and services if the supplier committed any corrupt or fraudulent act during the bidding process or the execution of that contract. 4 This SBD serves as a certificate of declaration that would be used by institutions to ensure that, when bids are considered, reasonable steps are taken to prevent any form of bid-rigging. 5 In order to give effect to the above, the attached Certificate of Bid Determination (SBD 9) must be completed and submitted with the bid: ¹ Includes price quotations, advertised competitive bids, limited bids and proposals. ² Bid rigging (or collusive bidding) occurs when businesses, that would otherwise be expected to compete, secretly conspire to raise prices or lower the quality of goods and / or services for purchasers who wish to acquire goods and / or services through a bidding process. Bid rigging is, therefore, an agreement between competitors not to compete. 29

31 CERTIFICATE OF INDEPENDENT BID DETERMINATION I, the undersigned, in submitting the accompanying bid: (Bid Number and Description) in response to the invitation for the bid made by: (Name of Institution) do hereby make the following statements that I certify to be true and complete in every respect: I certify, on behalf of: that: (Name of Bidder) 1. I have read and I understand the contents of this Certificate; 2. I understand that the accompanying bid will be disqualified if this Certificate is found not to be true and complete in every respect; 3. I am authorized by the bidder to sign this Certificate, and to submit the accompanying bid, on behalf of the bidder; 4. Each person whose signature appears on the accompanying bid has been authorized by the bidder to determine the terms of, and to sign the bid, on behalf of the bidder; 5. For the purposes of this Certificate and the accompanying bid, I understand that the word competitor shall include any individual or organization, other than the bidder, whether or not affiliated with the bidder, who: (a) has been requested to submit a bid in response to this bid invitation; (b) could potentially submit a bid in response to this bid invitation, based on their qualifications, abilities or experience; and (c) provides the same goods and services as the bidder and/or is in the same line of business as the bidder 6. The bidder has arrived at the accompanying bid independently from, and without consultation, communication, agreement or arrangement with any 30

32 competitor. However communication between partners in a joint venture or consortium³ will not be construed as collusive bidding. 7. In particular, without limiting the generality of paragraphs 6 above, there has been no consultation, communication, agreement or arrangement with any competitor regarding: (a) prices; (b) geographical area where product or service will be rendered (market allocation) (c) methods, factors or formulas used to calculate prices; (d) the intention or decision to submit or not to submit, a bid; (e) the submission of a bid which does not meet the specifications and conditions of the bid; or (f) bidding with the intention not to win the bid. 8. In addition, there have been no consultations, communications, agreements or arrangements with any competitor regarding the quality, quantity, specifications and conditions or delivery particulars of the products or services to which this bid invitation relates. 9. The terms of the accompanying bid have not been, and will not be, disclosed by the bidder, directly or indirectly, to any competitor, prior to the date and time of the official bid opening or of the awarding of the contract. ³ Joint venture or Consortium means an association of persons for the purpose of combining their expertise, property, capital, efforts, skill and knowledge in an activity for the execution of a contract. 10. I am aware that, in addition and without prejudice to any other remedy provided to combat any restrictive practices related to bids and contracts, bids that are suspicious will be reported to the Competition Commission for investigation and possible imposition of administrative penalties in terms of section 59 of the Competition Act No 89 of 1998 and or may be reported to the National Prosecuting Authority (NPA) for criminal investigation and or may be restricted from conducting business with the public sector for a period not exceeding ten (10) years in terms of the Prevention and Combating of Corrupt Activities Act No 12 of 2004 or any other applicable legislation. Signature Date 31

33 . Position Name of Bidder 32

34 0 Author: A Burger