bureau of public procurement BPP

BPP STANDARD TENDER FOR THE PROCUREMENT OF SMALL WORKS 2 & 3

Read: Section One

Read: Section 4, 5, 7 & 8


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

Amendment of, and Supplements to, Clauses in the Instructions to Tenderers

A.      General

ITT 1.1 The Employer is [state name of Employer] represented by [state name of representative].

[the Employer 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 Employer 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 lot are:

 

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

ITT 2.1 The source of public funds is [state source FGN, or other source of funds]

 

ITT 2.3 The name of the Development Partner is [state name of Development Partner or “None” as applicable].

 

ITT 4.1 [Choose option A or B, whichever is applicable, and delete the other option].

Option A: Restricted Tendering method:

The Invitation for Tenders is open to all Tenderers enlisted with [name of Employer]. Option B: Open Tendering method

All Tenderers regardless of whether enlisted or not enlisted with the Employer may submit Tenders providing they otherwise qualify.

 

ITT 4.4 [The following qualification criteria are only applicable for use with the Open Tendering method.  When adopting the Restricted Tendering method using enlisted contractors, these criteria should not be used]
  (a)        Annual Turnover:

The required average annual turnover shall be greater than Naira [insert amount] over the last [insert number] years:

As a guide, the required average annual turn over should be at least equal to the estimated annual cash flow for the Contract. (It is preferable to be more), and the period should be about 5 years minimum.

Example 1:

Estimated Contract Value:                   Naira 10 million

Contract period:                                  3 months

Monthly Cash flow: 30m N:3 =                       Naira 3.3 million

Estimated Annual Cash Flow:  12 x 3.3 m = Naira 39.6 M

[Required Average annual turnover would be Naira 40 million, using a multiplier of 1.0 as a minimum and rounding the figure, however it is not recommended to exceed a multiplier of 1.5].

Example 2:

Estimated Contract Value:                   Naira 5 million

Contract Period:                                  2 months

Monthly Cash flow: 5m N:2 =             Naira 2.5 million

Estimated Annual Cash Flow: 12 x 2.5 million = Naira  30 million

 [Required Average annual turnover would be Naira 30 million, using a multiplier of 1.0 as a minimum, however it is not recommended to exceed a multiplier of 1.5].                    

      (b)        Experience:

The required number of similar contracts completed shall be [insert number] over a period of [insert number] years.

[the minimum number will depend upon the size and type of construction work, and the Employer should make its own judgement based upon its experience in the sector and construction industry. For small contracts, it could be (1) similar work during the past 3 or 5 years].

  (c)        Liquid Assets:

The minimum amount of liquid assets and/or credit facilities net of other contractual commitments of the Tenderer shall be [insert amount].

[usually the required liquid assets are the equivalent of 2-6 months payment flow at the average construction rate (straight line distribution).  The actual period will depend on the speed with which the Employer will pay the Contractor’s monthly certificate, allowing time to prepare an invoice, for the Engineer’s time to certify it, and contingency period for preparing the cheque and making actual payment].

Example:

Contract Value:                                   Naira 10 million

Contract period:                                  3 months

Monthly payment: 10:3 =        Naira 3.3 million

Assuming work time:                            1 month

Invoice period:                                                0.5 month

Certification Time:                               0.5 month

Contingency Time:                               1 month

                                                            ————

                                                            3 months

Therefore, the minimum required liquid assets will be 3 x 3.3 m = Naira 9.9 million, 3 months cash flow based on the above assumptions.

B.      Tender Document

ITT 7.1 For clarification of Tenders purposes only, the Employer’s address is:

Attention:

Address:

Telephone:

Facsimile number:

Electronic mail address:

C.      Preparation of Tenders

ITT 12.1(e) Additional documents to be submitted by Tenderers are:

[list the additional documents required]

ITT 12.2 (e) Additional documents to be submitted by Tenderers are:

[list the additional documents required].

ITT 15.1 The Tender validity period shall be [    ] days.

[normally 45 to 60 days for Works of such a simple nature]

ITT 15.2 A Tender Security in the amount of Naira [insert amount] will be required,

OR

A Tender Security will not be required:

[delete whichever is not required]

.  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 (this may be considered in the case of small works)]

ITT 16.1 In addition to the original of the Tender, [    ] copies shall be submitted.

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

D.      Submission of Tenders

ITT 17.2 The inner and outer envelopes shall bear the following additional identification marks:

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

ITT 17.2 For Tender submission purposes only, the Employer’s address is:

Attention:

Address:

The deadline for the submission of Tenders is:

Time & Date

E.      Tender Opening and Evaluation

ITT 21.1 The Tender opening shall take place at:

Address:

Time & Date:

[Tenders shall be opened immediately only in one place, but in no case more than one hour, after the deadline for submission of Tenders.]

F.      Award of Contract

ITT 32.1 The amount of Performance Security shall be [   ] percent of the Contract Price.

[It should not be less than five (5) percent and not exceed ten (10) percent of the Contract Price. If, in addition, Retention Money is applied, the percentages of the Performance Security and the Retention Money combined should not exceed fifteen (15) percent . Higher percentages will require a more costly financing arrangement between the Tenderer and its Bank or financial provider, and will only increase the cost of the Tenders]

[The Performance Security shall be issued by a reputable bank or financial institution selected by the Tenderer and acceptable to the Employer. A Tenderer may request the Employer 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.]

 

ITT 34.2 The name and address of the office where complaints to the Procuring Entity are to be submitted under paragraph 21 of the Public Procurement Regulations for Goods and Works is:

 

 

Read: DPR Permits Applications 

 

 

 

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 terms:

(a)                Completion Certificate means the Certificate issued by the Engineer as evidence that the Contractor has executed the Works in all respects as per drawing, specifications, and Conditions of Contract.

(b)               The Completion Date is the date of completion of the Works as certified by the Engineer, in accordance with GCC Clause 18.

(c)                Contract means the Agreement entered into between the Employer and the Contractor to execute, complete and maintain the Works.

(d)               Contractor means the person or corporate body whose Tender to carry out the Works has been accepted by the Employer and is named as such in the SCC.

(e)                Contract Price means the price payable to the Contractor as specified in the Contract Agreement.

(f)                The Contractor’s Tender is the completed Tender Document including the priced offer submitted by the Contractor to the Employer.

(g)                Days means calendar days.

(h)               A Defect is any part of the Works not completed in accordance with the Contract.

(i)                 The Employer is the party named in the SCC who employs the Contractor to carry out the Works.

(j)                 The Engineer is the person named in the SCC, who is responsible for supervising the execution of the works and administering the Contract.

(k)               The Intended Completion Date is the date specified in the SCC on which the Contractor shall complete the Works and may be revised if extension of time or an acceleration order is issued by the Engineer.

(l)                 The Site is the area defined as such in the SCC.

(m)             The Works are what the Contract requires the Contractor to construct, install, and hand over to the Employer, as defined in the SCC.

2.      Interpretation & Documents forming the Contract

2.1            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 construance of the Contract. Words have their normal meaning under the language of the Contract unless specifically defined.
2.2            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 priced Schedule of Works including the Technical Specifications as submitted by the Tenderer.

(g)  the Technical Specifications

(h)  the Drawings,

3.         Corrupt, Fraudulent, Collusive, Coercive or Obstructive Practices

3.1            The Government requires that Employers, as well as Contractors 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 Employer shall

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

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

(c)          if it at any time determines that the Contractor has engaged in corrupt, fraudulent, collusive or coercive practices in competing for, or in executing, a Contract under public fund.

 

3.3            Should any corrupt, fraudulent, collusive or coercive practice of any kind referred to in GCC Sub-Clause 3.4 come to the knowledge of the Employer, it shall, in the first place, allow the Contractor to provide an explanation and shall, take actions as stated in GCC Sub-Clause 3.2 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 Contractor concerned. Any communications between the Contractor and the Employer 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 proceedings or the execution of a Contract to the detriment of the Employer;

(c)  “collusive practice” means a scheme or arrangement among two or more Tenderers with or without the knowledge of the Employer (prior to or after proposal submission) designed to establish Tender prices at artificial, non-competitive levels and to deprive the Employer 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.

(e)     obstructive practice which means

i.      deliberately destroying, falsifying, altering or concealing of evidence material to the investigation or making false statements to investigators in order to materially impede relevant authorities’  investigation into allegations of a corrupt, fraudulent, coercive or collusive practice; and/or threatening, harassing or intimidating any party to prevent it from disclosing its knowledge of matters relevant to the investigation or from pursuing the investigation, or

ii.      acts intended to materially impede the exercise of the relevant authorities’ inspection and audit rights provided for under par. 3.2 (c) above.

3.5            The Government requires that the Client’s personnel have an equal obligation not to solicit, ask for and/or use coercive methods to obtain personal benefits in connection with the said proceedings.

 

4.         Governing Language and Law

4.2  The Contract shall be governed by and interpreted in accordance with the laws of the Federal Republic of Nigeria.

5.         Engineer’s Decision

5.1       Except where otherwise specifically stated in the SCC, the Engineer will decide Contractual matters between the Employer and the Contractor in the role as representative of the Employer.

6.         Delegation

6.1       The Engineer may delegate any of his duties and responsibilities to his representative, after notifying the Contractor, and may cancel any delegation, without retroactivity, after notifying the Contractor.

7.         Communications and Notices

7.1       Communications between Parties pursuant to the Contract shall be in writing to the address specified in the SCC. A notice shall be effective when delivered or on the notice’s effective date, whichever is later.

8.         Sub- Contracting & Assigning

8.1       The Contractor shall not be permitted to subcontract any part of the Works, nor shall the Contractor be allowed to assign the Contract in whole or in part.

9.         Contractor’s Personnel

9.1       The Contractor shall employ the key personnel named in the Schedule of Key Personnel, as referred to in the SCC, to carry out the functions stated in the Schedule, or other personnel approved by the Engineer.
9.2       If the Engineer asks the Contractor to remove a person who is a member of the Contractor’s staff or work force from the Site, he shall state the reasons, and the Contractor shall ensure that the person leaves the Site within three (3) days and has no further connection with the work in the Contract.

10.     Welfare of Labourers and wages

10.1   The Contractor shall provide proper accommodation to his labourers and arrange proper water supply, conservancy and sanitation arrangements at the site in accordance with relevant regulations, rules and orders of the government.
10.2   The Contractor shall pay reasonable wages to his labourers, and pay them in time. [In the event of delay in payment the Employer may effect payments to the labourers and recover the cost from the Contractor.]

11.     Safety, Security and Protection of the Environment

11.1   The Contractor shall throughout the execution and completion of the Works and the remedying of any defects therein :

(a)            have full regard for the safety of all persons entitled to be upon the Site and keep the Site and the Works in an orderly state;

(b)           provide and maintain at the Contractors own cost all lights, guards, fencing, warning signs and watching for the protection of the Works or for the safety on-site; and

(c)            (c) take all reasonable steps to protect the environment on and off the Site and to avoid damage or nuisance to persons or to property of the public or others resulting from pollution, noise or other causes arising as a consequence of the Contractors methods of operation.

12.     Access to the Site

12.1       The Contractor shall allow the Engineer and any person authorised by the Engineer access to the Site and to any place where work in connection with the Contract is being carried out or is intended to be carried out.

13.     Documents, Information.

13.1       The Contractor shall furnish to the Engineer all information, schedules, calculations and supporting documentation that may be requested of it.

14.     Property

14.1       All materials on the Site, Plant, Equipment, Temporary Works and Works shall be deemed to be the property of the Employer if the Contract is terminated because of the Contractor’s default.

15.     Insurance

15.1             The Contractor shall provide, in the joint names of the Employer and the Contractor, insurance cover from the Start Date to the end of the Defects Liability Period, in the amounts and deductibles stated in the SCC for the following events which are due to the Contractor’s risks:

(a)            loss of or damage to the Works, Plant and Materials

(b)           loss of or damage to Equipment;

(c)            loss of or damage to property (except the Works, Plant, Materials and Equipment) in connection with the Contract; and

(d)           personal injury or death.

15.2             The Contractor shall deliver policies and certificates of insurance to the Engineer, for the Engineer’s approval, before the Start Date.
15.3             If the Contractor does not provide any of the policies and certificates required, the Employer may effect the insurance which the Contractor should have provided and recover the premiums the Employer has paid from payments otherwise due to the Contractor or, if no payment is due, the payment of the premiums shall be a debt due.
15.4             Alterations to the terms of insurance shall not be made without the approval of the Engineer.
15.5             Both parties shall comply with conditions of the insurance policies.

16.     Possession of the Site

16.1             The Employer shall give possession of the Site, or parts of the Site, to the Contractor on the date(s) specified in the SCC.

17.     Commencement of Works

17.1             The Contractor may commence execution of the Works on the Start Date, or other such date as specified in the SCC, and shall carry out the Works in an expeditious manner.
17.2             If the Contractor fails to commence the works within the above stated period, the Employer may, at his sole discretion, terminate the Contract and forfeit the Performance Security, if any.

18.     Completion of Works

18.1             The Contractor shall complete the Works within the number of days stated in the SCC from the date of commencing the Works on the Site.

19.     Programme of Works

19.1             Within the time stated in the SCC, the Contractor shall submit to the Engineer for approval a Programme showing the general methods, arrangements, order and timing for all the activities of the Works.
19.2             The Contractor shall submit to the Engineer for approval an updated Programme at intervals no longer than the period stated in the SCC.
19.3             If the Contractor does not submit an up-dated programme at the intervals stated in the SCC, the Engineer may withhold an amount as stated in the SCC from the next payment certificate and continue to withhold this amount until the next due payment after the date on which the overdue Programme has been submitted.

20.     Early Warning

21.     Compens- ation Events

21.1             The following shall be Compensation Events:

(a)    the Employer does not give access to the Site or part of the Site by the Site Possession Date stated in the SCC; and

(b)    if the payment is delayed pursuant to Clause 25.1.

21.2             If a Compensation Event would cause additional cost or would prevent the work being completed before the Intended Completion Date, the Contract Price shall be increased and/or the Intended Completion Date shall be extended, as appropriate, by the Engineer.

22.     Non-Scheduled Items of Works

22.1             The Contractor shall be paid for non-scheduled items of works only when the Engineer approves such works and at the rates and in the manner stated in the SCC.

 

 

 

 

 

 

23.  Contract Price

 

 

22.2        The priced Schedule of Works shall contain the priced activities for the Works to be performed by the Contractor. The Schedule of Works is used to monitor and control the performance of activities on which basis the Contractor will be paid. If payment for Materials on Site shall be made separately, the Contractor shall show delivery of Materials to the Site separately on the Schedule of Works.
23.1   The priced Schedule of Works shall contain the priced activities for the Works to be performed by the Contractor. The Schedule of Works is used to monitor and control the performance of activities on which basis the Contractor will be paid. If payment for Materials on Site shall be made separately, the Contractor shall show delivery of Materials to the Site separately on the Schedule of Works.
23.2   The Schedule of Works shall be amended by the Contractor to accommodate changes of Program or method of working made at the Contractor’s own discretion.  Prices in the Schedule of Works shall not be altered when the Contractor makes such changes to the Activity Schedule.

23.3   The Contractor shall be entirely responsible for all taxes, duties, license fees, and other such levies. The Engineer shall adjust the Contract Price if taxes, duties, and other levies are changed between the date 28 days before the submission of bids for the Contract and the date of the last Completion Certificate.

24.     Payment Certificates

24.1             The Contractor shall submit to the Engineer monthly statements of the estimated value of the work executed less the cumulative amount certified previously.
24.2             The Engineer shall check the Contractor’s monthly statement and certify the amount to be paid to the Contractor.
24.3             The value of work executed shall be determined by the Engineer.
24.4             The value of work executed shall comprise the value of the completed activities in the Schedule of Works.
24.6             The Engineer may exclude any item certified in previous certificates or reduce the proportion of any item previously certified in any certificate in the light of later information.

25.     Payments and Currency

25.1             The Employer shall pay the Contractor the amounts certified by the Engineer within twenty-eight (28) days of the date of each certificate. All payments shall be made in Naira.
25.2             The Employer shall make Advance Payment to the Contractor of the amounts and by the dates stated in the SCC against provision by the Contractor of an unconditional Bank Guarantee, (Form W-7).
25.3             The Contractor is to use the advance payment only to pay for Equipment, Plant, Materials, and mobilisation expenses required specifically for the execution of the Contract. The Contractor shall demonstrate that the advance payment has been used in this way by supplying copies of invoices or other documents to the Employer.
25.4             The advance payment shall be repaid by deducting proportionate amounts from payments otherwise due to the Contractor, following the schedule of completed percentages of the Works on a payment basis. No account shall be taken of the advance payment or its repayment in assessing valuations of work done, claims or any amount payable due to failure to complete

26.     Retention

26.1             The Employer shall retain from each payment due to the Contractor the proportion stated in the SCC until the completion of the whole of the Works.
26.2             On completion of the whole of the Works, half the total amount retained shall be repaid to the Contractor, the remaining half shall be repaid when the Defects Liability Period has passed and the Engineer has certified that all Defects notified by the Engineer to the Contractor before the end of this period have been corrected.

27.     Liquidated Damages

27.1             The Contractor shall pay liquidated damages to the Employer at the rate per day stated in the SCC for each day that the Completion Date is later than the Intended Completion date for the works or for any part thereof.

28.     Performance Security

28.1             If so specified in the SCC, a Performance Security shall be provided to the Employer in the amount stated in the SCC using the  form in the Contract Forms (Form W-5). The Performance Security shall be valid until a date twenty-eight (28) days from the date of issue of the Certificate of Completion.

29.     Cost of Repairs

29.1             Loss or damage to the Works or Materials to be incorporated in the Works between the Start Date and the end of the Defects Correction periods shall be remedied by the Contractor at the Contractor’s cost if the loss or damage arises from the Contractor’s acts or omissions

30.     Completion

30.1             The Contractor shall request the Engineer to issue a Certificate of Completion of the Works, and the Engineer will do so upon deciding that the work is completed.

31.     Correction of Defects

31.1             The Engineer shall give notice to the Contractor of any Defects before the end of the Defects Liability Period, which begins at Completion, and is defined in the SCC. The Defects Liability Period shall be extended for as long as the Defects remain to be corrected.
31.2             If the Contractor has not corrected a Defect within the time specified in the Engineer’s notice, the Engineer will assess the cost of having the Defect corrected, and the Contractor will pay this amount.

32.     Taking Over

32.1             The Employer shall take over the Site and the Works within seven (7) days of the Engineer issuing a Certificate of Completion.

33.     Final Account

33.1             The Contractor shall supply the Engineer a detailed account of the total amount that the Contractor considers payable under the Contract. The Engineer shall certify any final payment that is due to the Contractor within twenty-one (21) days of receiving the Contractor’s account if it is correct and complete.
33.2             The Employer shall effect payment of the final account within twenty-eight (28) days from the date of certification by the Engineer.

34.     Termination

34.1             The Employer or the Contractor by giving twenty-eight (28) days written notice of default to the other party, may terminate the Contract in whole or in part if the other party causes a fundamental breach of Contract.
34.2             Fundamental breaches of the Contract shall include, but shall not be limited to, the following:

(a)            the Contractor stops work for more than twenty-eight (28) days when no stoppage of work is shown on the current Programme and the stoppage has not been authorised by the Engineer;

(b)           the Engineer gives notice that failure to correct a particular defect is a fundamental breach of Contract and the Contractor fails to correct it within a reasonable period of time determined by the Engineer;

(c)            the Contractor has delayed the completion of the Works by the number of days for which the maximum amount of Liquidated Damages can be paid;

(d)           the Contractor, in the judgment of the Employer, has engaged in corrupt or fraudulent practices, as defined in GCC Clause 3, in competing for or in executing the Contract; or

(e)            a payment certified by the Engineer is not paid to the Contractor by the Employer within seventy (70) days of the date of the Engineer’s certificate.

34.3             The Employer and the Contractor may at any time terminate the Contract by giving notice to the other party if either of the parties 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 to the other party.
34.4             Notwithstanding the above, the Employer may terminate the Contract for convenience.
34.5             If the Contract is terminated, the Contractor is to stop work immediately, make the Site safe and secure and hand over the Site to the Employer as soon as reasonably possible.

35.     Payment upon Termination

35.1             If the Contract is terminated because of a fundamental breach of Contract by the Contractor, the Engineer shall issue a certificate for the value of the work done and Plant and Materials ordered less advance payments received up to the date of the issue of the certificate and less the percentage to apply to the value of the work not completed, as indicated in the SCC. Additional Liquidated Damages shall not apply.  If the total amount due to the Employer exceeds any payment due to the Contractor, the difference shall be a debt payable to the Employer.
35.2             If the Contract is terminated for the Employer’s convenience or because of a fundamental breach of Contract by the Employer, the Contractor shall be entitled to payments for completed works and the materials that have been brought to the site for the purpose of the works, but not used as certified by the Engineer after adjusting any payments received by the Contractor.

36.     Release from Performance

36.1             If the Contract is frustrated by the outbreak of war or by any other event entirely outside the control of either the Employer or the Contractor, the Engineer shall certify that the Contract has been frustrated. The Contractor shall make the Site safe and stop work as quickly as possible, after receiving this certificate. The Contractor shall be paid for all works carried out before stoppage of work and any work carried out afterwards to which a commitment was made.

37.     Settlement of Disputes

37.1             The Employer and the Contractor shall use their best efforts to settle amicably all disputes arising out of or in connection with this Contract or its interpretation.
37.2             Any dispute between the parties to the Contract that may not be settled amicably will be referred to Arbitration at the initiative of either of the parties.
37.3             The arbitration shall be conducted in accordance with the [Arbitration Act (Act No  of…..) of Nigeria] as at present in force and in the place shown in the SCC.

 

Read: Section One

Read: Section 4, 5, 7 & 8