bureau of public procurement BPP
Small & Medium Scale BusinessSeptember 17, 2018

BUREAU OF PUBLIC PROCUREMENT (BPP) STANDARD BIDDING DOCUMENT 

For the Procurement of Goods

Section 2 & 3.

Section 2.  Special Instructions to Tenderers
Instructions for completing the Special Instructions to Tenderers are provided, as needed, in the notes in italics mentioned for the relevant ITT clauses.
ITT Clause Amendments of, and Supplements to, Clauses in the Instruction to Tenderers

A.      General
ITT 1.1 The Procuring Entity is [state name of Procuring Entity] represented by [state name of representative].

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

The Name of the Tender is:

 

 

The number and identification of lots comprising the Tender are: 

[if there is more than one lot, individual lots are to be identified in conformity with Section 6: Schedule of Requirements].
ITT 2.1 The source of public fund is [state source of funds, FGN or other source of funds].
ITT 2.3 The name of the Development Partner is [state name of Development Partner]
ITT 4.1 Tenderers from the following countries are not eligible:
ITT 5.1 Goods and Related Services from the following counties are not eligible:

B.      Tender Document
ITT 8.1
 For clarification of Tender purposes only, the Procuring Entity’s address is:

Attention:

Address:

 

 

Telephone:

Facsimile number:

Electronic mail address:
ITT 9.1 A Pre- Tender meeting shall not be held.

OR

The Pre- Tender meeting shall be held at

Address:

 

Date:

Time:

C.      Qualification Criteria
ITT 12.1(a) The Tenderer shall have a minimum of [state number] years of overall experience in the supply of goods and related services.
ITT 12.1(b) The Tenderer shall have a minimum of [state number] years of specific experience in the supply of similar goods and related services.
ITT 12.1(c) The minimum production capacity or availability of equipment is/ are:

[state “None” if not applicable]
ITT 13.1(a) The minimum supply value of goods under a single contract in the last five years is Naira. [state value]

[state “None” if not applicable]

D.      Preparation of Tender
ITT 17.1(j) The Tenderer shall submit with its Tender the following additional documents:

[In cases of purchase of capital equipment by the Supplier as part of its overall Contract, a Performance Statement of the capital equipment in Nigeria may be necessary and may be requested. If no other documents are required the specify “none”.]
ITT 19.1    Alternative Tenders will not be  considered, OR
ITT 20.3

      &

ITT 42.5

  

Tenders are being invited for a single lot.

OR

Tenders are being invited for [state number]  lots.

[Mention the Lot Numbers above for Tenders that anticipate the award of more than one Contract and state that Tenderers can submit a Tender for one or more lots in the package. Tenderers will indicate in their Tender any discounts or cross-discounts which they offer for the award of more than one Contract
ITT 20.5 (c) The final destination of the goods is [name destination].

[this may either be the place at which the goods are required, a Procuring Entity’s warehouse, or some other point at which the goods are to be consigned.]
ITT 20.5 (d) The Tenderer shall submit prices for the following incidental services:[If the goods supply includes installation, commissioning, training, etc., then list above the services required which are also to be reflected in Price Schedule G-2, mentioning all incidental services, other than the delivery related services which are covered in ITT 20.5(c)]
ITT 20.7 The prices quoted by the Tenderer shall be fixed for the duration of the Contract, OR
ITT 22.2 A Manufacturer’s Authorisation Letter is not required.

OR

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

OR

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

[delete as appropriate]
ITT 26.1 The Tender validity period shall be […..] days.

[normally 60 to 120 days for simple cases of purchase of goods and up to 150 days for more complex purchases of Goods and Related Services].
ITT 27.1

 

 The amount of the Tender Security shall be [ Naira        ]

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

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

A Tender Security shall not be required
ITT 28.1 In addition to the original of the Tender, [    ] copies shall be submitted.

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

E.      Submission of Tender
ITT 29.2(b) For Tender submission purposes only, the Procuring Entity’s address is:

Attention:

Address:
ITT 29.2(c) The inner and outer envelope shall bear the following additional identification marks:

[indicate any markings that are required on the inner and outer envelopes].
ITT 30.1 The deadline for submission of Tenders is [state time] on [state date]

F.      Opening and Evaluation of Tenders
ITT 33.1 The Tender opening shall take place at:

Address:

On Time & Date:
ITB 42.4 The applicable economic factors for evaluation shall be as follows:

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

 

Option (i), or

Option (ii), or

Option (iii)

 The following quantification methods shall be applied.

Delivery schedule.

Adjustment expressed as a percentage,

adjustment expressed a percentage,

adjustment expressed as a percentage

[a rate of one-half (0.5) percent per week is a reasonable figure]
ITT 42.4(b) Cost of components and mandatory spare parts

[Specify the applicable factors (e.g., number of years) and reference to the Appendix to the Technical Specifications, as required. State “None” if not applicable]
ITT 42.4(c) Spare parts and after-sales service facilities in Nigeria.

[Minimum service facilities and parts inventories or reference to the Technical Specifications. State “None” if not applicable]
ITT 42.4(d) Projected operating and maintenance costs.

Factors for calculation of the life cycle cost:

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

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

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

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

OR,

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

[state “None” if not applicable].

 
ITT 42.4(e) Performance and productivity of equipment.

[Specify the applicable procedure and the adjustment factor as required. The adjustment factor should apply to the norm that shall be used and that shall either be specified in the Technical Specifications or shall be the value committed in the responsive bid with the best guaranteed performance or productivity. State “None” if not applicable]
ITT 42.7 A margin of preference (specify : “applies” or “does not apply”) to domestic goods . (And if it applies, add “the margin of preference amounts to …. Percent of the evaluated Contract Price ).

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

G.      Award of Contract
ITT 48.1 The maximum percentage by which quantities per item may be increased is [state percentage].

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

[in both instances the maximum percentage is between 15 and 20 %].
ITT 50.1 The amount of Performance Security shall be ten [10] percent of the Contract Price.

[At present a fixed sum of 10 percent is stated in the Regulations]
ITT 53.2 The name and address of the office where complaints to the Procuring Entity are to be submitted is:

H       Evaluation Criteria for Domestic Preference for Goods
a.                   Where a margin of preference is granted for goods manufactured in Nigeria, responsive tenders shall be classified in one of the following two groups:

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

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

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

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

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

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

 

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

 

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

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

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

 

Read: Business/ Company Registration in Nigeria

Read: Debt Recovery / Collection Services in Nigeria

Read: Business Support/ Representation Service in Nigeria

 

Section 3.  General Conditions of Contract

1.         Definitions

 1.1           The following words and expressions shall have the meaning hereby assigned to them. Boldface type is used to identify the defined term:

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

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

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

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

(e)      Day means calendar day;

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

(g)      GCC mean the General Conditions of Contract;

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

(i)        Government means the Federal Government of Nigeria;

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

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

(l)        SCC means the Special Conditions of Contract;

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

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

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

 

2.         `Contract Documents

 2.1              Subject to the order of precedence set forth in the GCC Sub-Clause 5.1, all documents forming the Contract (and all parts thereof) are intended to be correlative, complementary, and mutually explanatory.

3.         Corrupt, Fraudulent, Collusive or Coercive Practices

 3.1              The Government requires that Procuring Entities, as well as Suppliers, shall observe the highest standard of ethics during the implementation of procurement proceedings and the execution of contracts under public funds.
3.2                 In pursuance of this requirement, the Procuring Entity shall:

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

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

            if it at any time determines that the Supplier has engaged in corrupt, fraudulent, collusive or coercive practices in competing for, or in executing, a contract under public funds.
3.3              Should any corrupt, fraudulent, collusive or coercive practice of any kind referred to in GCC Sub-Clause 3.4 hereunder come to the knowledge of the Procuring Entity, it shall, in the first place, allow the Supplier to provide an explanation and shall, take actions as stated in GCC Sub-Clause 3.2 and GCC Sub-Clause 38.1(c) only when a satisfactory explanation is not received. Such exclusion and the reasons thereof shall be recorded in the record of the procurement proceedings and promptly communicated to the Supplier concerned. Any communications between the Supplier and the Procuring Entity related to matters of alleged corrupt, fraudulent, collusive or coercive practices shall be in writing.
3.4              The Government defines, for the purposes of this provision, the terms set forth below as follows:

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

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

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

(d)         “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence the procurement proceedings or affect the execution of a contract.
3.5              The Supplier shall permit the Procuring Entity to inspect the Supplier’s accounts and records and other documents relating to the submission of the Tender and Contract performance.

4.         Interpretation

 4.1                 In interpreting the GCC, singular also means plural, male also means female or neuter, and the other way around.  Headings in the GCC shall not be deemed part thereof or be taken into consideration in the interpretation or construction thereof or of the Contract. Words have their normal meaning under the English language unless specifically defined.
4.2                 Entire Agreement

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

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

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

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

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

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

5.         Documents Forming the Contract and Priority of Documents

 5.1           The following documents forming the Contract shall be interpreted in the following order of priority:

(a)                the signed Contract Agreement;

(b)               the letter of Notification of Award

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

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

(e)                the Special Conditions of Contract;

(f)                the General Conditions of Contract;

(g)                the Schedule of Requirements;

(h)               the Technical Specifications;

(i)                 the Drawings, and;

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

6.         Eligibility

 6.1           The Supplier and its Sub-Contractors shall have the nationality of a country other than those specified in the SCC.
6.2           All Goods and Related Services supplied under the Contract shall have their origin in the countries except those specified in the SCC.

7.         Governing Language

 7.1            The Contract as well as all correspondence and documents relating to the Contract exchanged by the Supplier and the Procuring Entity shall be written in English. Supporting documents and printed literature that are part of the Contract may be in another language provided they are accompanied by an accurate translation of the relevant passages in English, in which case, for purposes of interpretation of the Contract, this translation shall govern.
7.2            The Supplier shall bear all costs of translation to the governing language and all risks of the accuracy of such translation.

8.         Governing Law

 8.1            The Contract shall be governed by and interpreted in accordance with the laws of the People’s Republic of Nigeria.

9.         Gratuities / Agency fees

 9.1            No fees, gratuities, rebates, gifts, commissions or other payments, other than those shown in the Tender or the contract, shall be given or received in connection with the procurement process or in the contract execution.

10.     Joint Venture, (JV)

 10.1           If the Supplier is a joint venture, all of the parties shall be jointly and severally liable to the Procuring Entity for the fulfilment of the provisions of the Contract and shall designate one party to act as a leader with authority to bind the joint venture. The composition or the constitution of the joint venture; shall not be altered without the prior consent of the Procuring Entity.

11.     Confidential Information

 11.1        The Procuring Entity and the Supplier shall keep confidential and shall not, without the written consent of the other party hereto, divulge to any third party any documents, data, or other information furnished directly or indirectly by the other party hereto in connection with the Contract, whether such information has been furnished prior to, during or following completion or termination of the Contract.  Notwithstanding the above, the Supplier may furnish to its Subcontractor such documents, data, and other information it receives from the Procuring Entity to the extent required for the Subcontractor to perform its work under the Contract, in which event the Supplier shall obtain from such Subcontractor an undertaking of confidentiality similar to that imposed on the Supplier under GCC Clause 11.
11.2        The Procuring Entity shall not use such documents, data, and other information received from the Supplier for any purposes unrelated to the contract.  Similarly, the Supplier shall not use such documents, data, and other information received from the Procuring Entity for any purpose other than the design, procurement, or other work and services required for the performance of the Contract.
11.3        The obligation of a party under GCC Sub-Clauses 11.1 and 11.2 above, however, shall not apply to information that:

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

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

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

(d)  otherwise lawfully becomes available to that party from a third party that has no obligation of confidentiality.
11.4        The above provisions of GCC Clause 11 shall not in any way modify any undertaking of confidentiality given by either of the parties hereto prior to the date of the Contract in respect of the Supply or any part thereof.
11.5        The provisions of GCC Clause 11 shall survive completion or termination, for whatever reason, of the Contract.

12.     Communications and Notices

 12.1        Communications between Parties (notice, request or consent required or permitted to be given or made by one party to the other) pursuant to the Contract shall be in writing to the addresses specified in the SCC.
12.2        A notice shall be effective when delivered or on the notice’s effective date, whichever is later.
12.3        A Party may change its address for notice hereunder by giving the other Party notice of such change to the address.

13.     Patent and Intellectual Property Rights

 13.1        The Supplier shall, subject to the Procuring Entity’s compliance with GCC Sub-Clause 13.2, indemnify and hold harmless the Procuring Entity and its employees and officers from and against any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs, and expenses of any nature, including attorney’s fees and expenses, which the Procuring Entity may suffer as a result of any infringement or alleged infringement of any patent, utility model, registered design, trademark, copyright, or other intellectual property rights registered or otherwise existing at the date of the Contract by reason of:

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

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

Such indemnity shall not cover any use of the Goods or any part thereof other than for the purpose indicated by or to be reasonably inferred from the Contract, neither any infringement resulting from the use of the Goods or any part thereof, or any products produced thereby in association or combination with any other equipment, plant, or materials not supplied by the Supplier, pursuant to the Contract.
13.2        If any proceedings are brought or any claim is made against the Procuring Entity arising out of the matters referred to in GCC Sub-Clause 13.1, the Procuring Entity shall promptly give the Supplier a notice thereof, and the Supplier may at its own expense and in the Procuring Entity’s name conduct such proceedings or claim and any negotiations for the settlement of any such proceedings or claim.

 
13.3        If the Supplier fails to notify the Procuring Entity within twenty-eight (28) days after receipt of such notice that it intends to conduct any such proceedings or claim, then the Procuring Entity shall be free to conduct the same on its own behalf.
13.4        The Procuring Entity shall, at the Supplier’s request, afford all available assistance to the Supplier in conducting such proceedings or claim, and shall be reimbursed by the Supplier for all reasonable expenses incurred in so doing.
13.5        The Procuring Entity shall indemnify and hold harmless the Supplier and its employees, officers, and Subcontractors from and against any and all suits, actions or administrative proceedings, claims, demands, losses, damages, costs, and expenses of any nature, including attorney’s fees and expenses, which the Supplier may suffer as a result of any infringement or alleged infringement of any patent, utility model, registered design, trademark, copyright, or other intellectual property right registered or otherwise existing at the date of the Contract arising out of or in connection with any design, data, drawing, specification, or other documents or materials provided or designed by or on behalf of the Procuring Entity.

14.     Copyright

 14.1        The copyright in all drawings, documents, and other materials containing data and information furnished to the Procuring Entity by the Supplier herein shall remain vested in the Supplier, or, if they are furnished to the Procuring Entity directly or through the Supplier by any third party, including suppliers of materials, the copyright in such materials shall remain vested in such third party.

15.     Assignment

 15.1        The Supplier shall not assign, in whole or in part, its obligations under the Contract, except with the Procuring Entity’s prior written consent.

16.     Sub-contracting

 16.1        The Supplier shall obtain approval of the Procuring Entity in writing of all Sub-Contracts to be awarded under the Contract if not already specified in the Tender. Sub-Contracting shall in no event relieve the Supplier from any of its obligations, duties, responsibilities, or liability under the Contract.
16.2        Subcontractors shall comply with the provisions of GCC Clause 3.

17.     Supplier’s Responsib ilities

 17.1        The Supplier shall supply all the Goods and Related Services specified in the Scope of Supply in conformity in all respects with the provisions of the Contract Agreement.

18.     Procuring Entity’s Responsib ilities

 18.1        The Procuring Entity shall pay the Supplier, in consideration of the provision of Goods and Related Services, the Contract Price or such other sum as may become payable under the provisions of the Contract at the times and manner prescribed in the Contract Agreement.

19.     Scope of Supply

 19.1        The Goods and Related Services to be supplied shall be as specified in Section 6: Schedule of Requirements.
19.2        Unless otherwise stipulated in the Contract, the Supply shall include all such items not specifically mentioned in the Contract but that can be reasonably inferred from the Contract as being required for attaining delivery of the Goods and completion schedule of the Related Services as if such items were expressly mentioned in the Contract.

20.     Change Orders and Contract Amendments

 20.1        The Procuring Entity may at any time order the Supplier through a notice in accordance with GCC Clause 12, to make changes within the general scope of the Contract in any one or more of the following:

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

(b)       the method of shipment or packing;

(c)       the place of delivery; and

(d)       the Related Services to be provided by the Supplier.
20.2        If any such change causes an increase or decrease in the cost of, or the time required for, the Supplier’s performance of any provisions under the Contract, an equitable adjustment shall be made in the Contract Price or in the Delivery/Completion Schedule, or both, and the Contract shall accordingly be amended.  Any claims by the Supplier for adjustment under this Clause must be submitted within twenty-eight (28) days from the date of the Supplier’s receipt of the Procuring Entity’s Change Order.
20.3        Prices to be charged by the Supplier for any Related Services that might be needed, but which were not included in the Contract, shall be agreed upon in advance by the parties and shall not exceed the prevailing rates charged to other parties by the Supplier for similar services.

21.     Packing and Documents

 21.1        The Supplier shall provide such packing of the goods as is required to prevent their damage or deterioration during transit to their final destination, as indicated in the Contract.  During transit, the packing shall be sufficient to withstand, without limitation, rough handling and exposure to extreme temperatures, salt and precipitation, and open storage.  Packing case size and weights shall take into consideration, where appropriate, the remoteness of the goods’ final destination and the absence of heavy handling facilities at all points in transit.
21.2        The packing, marking, and documentation within and outside the packages shall comply strictly with such special requirements as shall be expressly provided for in the Contract, including additional requirements, if any, specified in the SCC, and in any subsequent instructions ordered by the Procuring Entity

22.     Delivery and Documents and Acceptance

 22.1        Subject to GCC Sub-Clause 20.1, the Delivery of the Goods and completion of the Related Services shall be in accordance with the Delivery and Completion Schedule specified in the Section 6: Schedule of Requirements.

 
22.2        The documents to be furnished by the Supplier shall be specified in the SCC, and shall be received by the Procuring Entity at least one week before arrival of the Goods and, if not received, the Supplier shall be responsible for consequent expenses.
22.3        Acceptance by the Procuring Entity shall be processed not later than fourteen (14) days from receipt of the goods at final destination in the form of an Acceptance Certificate, unless any defects in the supply, any damage during transport or any failure to meet the required performance criteria of the supply are identified and reported to the Supplier in accordance with GCC Clause 31 and GCC Clause 32. In such cases the Acceptance Certificate will be issued only for those parts of the contract supplies which are accepted. The Acceptance Certificate for the remaining supplies will only be issued after the Supplier has remedied the defects and/or any non-conformity in accordance with GCC Clause 31 and GCC Clause 32.

23.     Contract Price

 23.1    The Contract Price shall be as specified in the Contract Agreement subject to any additions and adjustments thereto, or deductions therefrom, as may be made pursuant to the Contract.
23.2    Prices charged by the Supplier for the Goods delivered and the Related Services performed under the Contract shall not vary from the prices quoted by the Supplier in its Tender, with the exception of any price adjustments authorised in the SCC.

24.     Transport ation

 24.1    Where the Supplier is required under the Contract to transport the Goods to a specified place of destination within Nigeria, defined as the Site, transport to such place of destination including insurance, and other incidental costs, and temporary storage, if any, as shall be specified in the Contract, shall be arranged by the Supplier, and related costs shall be included in the Contract Price.

25.     Spare Parts

 25.1    As specified in the SCC, the Supplier may be required to provide any or all of the following materials, notifications, and information pertaining to spare parts manufactured or distributed by the Supplier:

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

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

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

(ii)                 following such termination, furnishing at no cost to the Procuring Entity, the blueprints, drawings, and specifications for the spare parts, if requested.
25.2    The Supplier shall carry sufficient inventories to assure ex-stock supply of spare parts as promptly as possible, but in any case within the time specified in the SCC for placing the order and opening the letter of credit.

26.     Terms of Payment

 26.1    The Contract Price, including any Advance Payments, if applicable, shall be paid in the manner as specified in the SCC.
26.2    The Supplier’s request for payment shall be made to the Procuring Entity in writing, accompanied by an invoice describing, as appropriate, the Goods delivered and Related Services performed, and accompanied by the documents pursuant to GCC Clause 22 and upon fulfilment of any other obligations stipulated in the Contract.
26.3    Payments shall be made promptly by the Procuring Entity, no later than the dates indicated in the SCC.
26.4    In the event that the Procuring Entity fails to pay the Supplier any payment by its respective due date or within the period set forth in the SCC, the Procuring Entity shall pay to the Supplier interest on the amount of such delayed payment at the rate shown in the SCC, for the period of delay until payment has been made in full, whether before or after judgment or arbitration award.

27.     Insurance

 27.1    Unless otherwise specified in the SCC, the Goods supplied under the Contract shall be fully insured against loss or damage incidental to manufacture or acquisition, transportation, storage, and delivery, in the manner specified in the SCC.

28.     Taxes and Duties

 28.1    The Supplier shall be entirely responsible for all taxes, duties, license fees, and other such levies imposed or incurred until delivery of the contracted goods to the Procuring Entity.

29.     Performance Security

 29.1          In the case of Goods having warranty obligations the Performance Security shall be reduced to the amount specified in the SCC after delivery and acceptance of the Goods to cover the Supplier’s warranty obligations in accordance with GCC Sub-Clause 32.3.
29.2.                 The Procuring Entity may claim against the security if any of the following events occurs for fourteen (14) days or more;

(a)                the Supplier is in breach of the Contract and the Procuring Entity has notified him that he is.
29.3           The Performance Security shall be discharged by the Procuring Entity and returned to the Supplier not later than twenty-eight (28) days following the date of completion of the Supplier’s performance obligations under the Contract, including any warranty obligations.

30.     Specifications and Standards

 30.1    The Supplier shall ensure that the Goods and Related Services comply with technical specifications and other provisions of the Contract.
30.2    The Supplier shall be entitled to disclaim responsibility for any design, data, drawing, specification or other document, or any modification thereof provided or designed by or on behalf of the Procuring Entity later than the contract signing date, by giving a notice of such disclaimer to the Procuring Entity.
30.3    The Goods and Related Services supplied under this Contract shall conform to the standards mentioned in Section 7: Technical Specifications and, when no applicable standard is mentioned, the standard shall be equivalent or superior to the official standards whose application is appropriate to the goods’ country of origin.
30.4    Wherever references are made in the Contract to codes and standards in accordance with which it shall be executed, the edition or the revised version of such codes and standards shall be those specified in the Schedule of Requirements. During Contract execution, any changes in any such codes and standards shall be applied only after approval by the Procuring Entity and shall be treated in accordance with GCC Clause 20.

31.     Inspections and Tests

 31.1    The Supplier shall at its own expense and at no cost to the Procuring Entity carry out all such tests and/or inspections of the Goods and Related Services as are specified in the Schedule of Requirements.
31.2        The inspections and tests may be conducted on the premises of the Supplier or its Subcontractor and/or at the Goods’ final destination, or in another place in Nigeria as specified in the SCC. Subject to GCC Sub-Clause 31.3, if conducted on the premises of the Supplier or its Subcontractor, all reasonable facilities and assistance, including access to drawings and production data, shall be furnished to the inspectors at no charge to the Procuring Entity.
31.3        The Procuring Entity or its designated representative shall be entitled to attend the tests and/or inspections referred to in GCC Sub-Clause 31.2, provided that the Procuring Entity bear all of its own costs and expenses incurred in connection with such attendance including, but not limited to, all travelling and board and lodging expenses.
31.4        Whenever the Supplier is ready to carry out any such test and inspection, it shall give a reasonable advance notice, including the place and time, to the Procuring Entity.  The Supplier shall obtain from any relevant third party or manufacturer any necessary permission or consent to enable the Procuring Entity or its designated representative to attend the test and/or inspection.
31.5        The Procuring Entity may require the Supplier to carry out any test and/or inspection not required by the Contract, but deemed necessary to verify that the characteristics and performance of the Goods comply with the technical specifications, codes and standards under the Contract, provided that the Supplier’s reasonable costs and expenses incurred in the carrying out of such test and/or inspection shall be added to the Contract Price.  Further, if such test and/or inspection impede the progress of manufacturing and/or the Supplier’s performance of its other obligations under the Contract, due allowance will be made in respect of the Delivery Dates and Completion Dates and the other obligations so affected.
31.6        The Supplier shall provide the Procuring Entity with a report of the results of any such test and/or inspection.
31.7        The Procuring Entity may reject any Goods or any part thereof that fail to pass any test and/or inspection or do not conform to the specifications.  The Supplier shall either rectify or replace such rejected Goods or parts thereof or make alterations necessary to meet the specifications at no cost to the Procuring Entity, and shall repeat the test and/or inspection, at no cost to the Procuring Entity, upon giving a notice pursuant to GCC Sub-Clause 31.4.
31.8        The Supplier agrees that neither the execution of a test and/or inspection of the Goods or any part thereof, nor the attendance by the Procuring Entity or its representative, nor the issue of any report pursuant to GCC Sub-Clause 31.6, shall release the Supplier from any warranties or other obligations under the Contract.

32.     Warranty

 32.1        The Supplier warrants that all the Goods are new, unused, and of the most recent or current models, and that they incorporate all recent improvements in design and materials, unless provided otherwise in the Contract.
32.2        Subject to GCC Sub-Clause 30.1, the Supplier further warrants that the Goods shall be free from defects arising from any act or omission of the Supplier or arising from design, materials, and workmanship, under normal use in the conditions prevailing in Nigeria.
32.3        Unless otherwise specified in the SCC, the warranty shall remain valid for twelve (12) months after the Goods, or any portion thereof as the case may be, have been delivered to and accepted at the final destination indicated in the SCC.
32.4        The Procuring Entity shall give notice to the Supplier stating the nature of any such defects together with all available evidence thereof, promptly following the discovery thereof.  The Procuring Entity shall afford all reasonable opportunity for the Supplier to inspect such defects.
32.5        Upon receipt of such notice, the Supplier shall, within the period specified in the SCC, expeditiously repair or replace the defective Goods or parts thereof, at no cost to the Procuring Entity.
32.6        If having been notified, the Supplier fails to remedy the defect within the period specified in the SCC, The Procuring Entity may proceed to take within a reasonable period such remedial action as may be necessary, at the Supplier’s risk and expense and without prejudice to any other rights which the Procuring Entity may have against the Supplier under the Contract.

 

33.     Extensions of Time

 33.1        If at any time during performance of the Contract, the Supplier or its subcontractors should encounter conditions impeding timely delivery of the Goods or completion of Related Services pursuant to GCC Clause 22, the Supplier shall promptly notify the Procuring Entity in writing of the delay, its likely duration, and its cause.  As soon as practicable after receipt of the Supplier’s notice, the Procuring Entity shall evaluate the situation and may at its discretion extend the Supplier’s time for performance, in which case the extension shall be ratified by the Parties by amendment of the Contract.
33.2        Except in the case of Force Majeure, as provided under GCC Clause 37, a delay by the Supplier in the performance of its Delivery and Completion obligations shall render the Supplier liable to the imposition of liquidated damages pursuant to GCC Clause 34, unless an extension of time is agreed upon, pursuant to GCC Sub-Clause 33.1.

34.     Liquidated Damages

 34.1        Except as provided under GCC Clause 37, if the Supplier fails to deliver any or all of the Goods or perform the Related Services within the period specified in the Contract, the Procuring Entity may, without prejudice to all its other remedies under the Contract, deduct from the Contract Price, as liquidated damages, a sum equivalent to the percentage specified in the SCC of the Contract Price of the delayed Goods and/or Related Services for each week or part thereof of delay until actual delivery or performance, up to a maximum deduction of the percentage specified in those SCC. Once the maximum is reached, the Procuring Entity may terminate the Contract pursuant to GCC Clause 38.

35.     Limitation of Liability

 35.1        Except in cases of criminal negligence or wilful misconduct ,

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

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

36.     Change in Laws and Regulations

 36.1        Unless otherwise specified in the Contract, if after the date twenty eight (28) days before the submission of Tenders for the Contract, any law, regulation, ordinance, order or bylaw having the force of law is enacted, promulgated, abrogated, or changed in Nigeria (which shall be deemed to include any change in interpretation or application by the competent authorities) that subsequently affects the Delivery Date and/or the Contract Price, then such Delivery Date and/or Contract Price shall be correspondingly increased or decreased, to the extent that the Supplier has thereby been affected in the performance of any of its obligations under the Contract.  Notwithstanding the foregoing, such additional or reduced cost shall not be separately paid or credited if the same has already been accounted for in the price adjustment provisions where applicable, in accordance with GCC Clause 23.

37.     Force Majeure

 37.1        The Supplier shall not be liable for forfeiture of its Performance Security, liquidated damages, or termination for default if and to the extent that its delay in performance or other failure to perform its obligations under the Contract is the result of an event of Force Majeure.
37.2        For purposes of this Clause, “Force Majeure” means an event or situation beyond the control of the Supplier that is not foreseeable, is unavoidable, and its origin is not due to negligence or lack of care on the part of the Supplier.  Such events may include, but not be limited to, acts of the Procuring Entity in its sovereign capacity, wars or revolutions, fires, floods, epidemics, quarantine restrictions, and freight embargoes.
37.3        If a Force Majeure situation arises, the Supplier shall promptly notify the Procuring Entity in writing of such condition and the cause thereof.  Unless otherwise directed by the Procuring Entity in writing, the Supplier shall continue to perform its obligations under the Contract as far as is reasonably practical, and shall seek all reasonable alternative means for performance not prevented by the Force Majeure event.

38.     Termination

 38.1             Termination for Default

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

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

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

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

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

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

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

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

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

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

39.     Settlement of Disputes

 39.1          Amicable Settlement

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

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

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

 

 

Read:  Section 1.

Read: Section 4, 5, 6 &7

Source: BUREAU OF PUBLIC PROCUREMENT (BPP)