Ministry of Foreign Affairs Danida Procurement of Tarpaulins - Uganda Contract Notice 2015/S 212-384849 File no. 2015-17950 October 2015 DANIDA – Procurement of Tarpaulins - Uganda 2 TABLE OF CONTENTS INSTRUCTIONS TO TENDERERS 1. 2. 3. 4. 5. 6. 7. 8. 4 Introduction Eligibility of the Tenderer The Tender Documents Preparation of the Tender Submission of the Tender Tender Opening Tender Evaluation Award 4 4 5 6 7 8 8 9 ANNEX A: CRITERIA AND METHOD OF EVALUATION 11 LETTER OF TENDER 12 AGREEMENT 18 BUYER’S ACCEPTANCE 19 APPENDIX TO THE AGREEMENT 20 SCHEDULE OF PRICES INCLUDING DELIVERY DETAILS 25 CONDITIONS OF CONTRACT 26 TECHNICAL SPECIFICATIONS 37 FORM OF ADVANCE PAYMENT SECURITY 41 Introduction DANIDA – Procurement of Tarpaulins - Uganda 3 INTRODUCTION TERMINOLOGY AND DEFINITIONS “Tender Dossier” means the invitation and documents issued to the Tenderers in connection with the tendering. “Tender” or “Tender document” means the document forming the tender submitted by the Tenderer. Other terms shall have the meanings assigned to them in the Instructions to Tenderers and the Contract Documents. Introduction DANIDA – Procurement of Tarpaulins - Uganda 4 INSTRUCTIONS TO TENDERERS 1. Introduction 1.1. These instructions to tender relate to a contract notice published by the office for Official Publications of the European Commission. 1.2. The Tender Dossier comprises: (i) Instructions to Tenderers, and Annex A: Criteria and Method of Evaluation. (ii) Letter of tender, with its appendices (iii) Form of Agreement, and Form of Appendix to the Agreement (iv) Schedule of prices including delivery details (v) Conditions of Contract (vi) Technical Specifications (vii) Format for guarantees 1.3. The Instructions to Tenderers prescribe the procedures to be followed until the Buyer either enters into an agreement with a Tenderer or advises him that the Buyer does not intend to do so. These Instructions should not form any part of the Tenderer's Tender or the Contract. 1.4. Words and expressions defined in Clause 1 of the Conditions of Contract (General Provisions) shall have the same meanings in these Instructions. 1.5. The Tenderer shall bear all its costs incurred in the preparation and submission of the Tender and clarifications of a Contract, including visits, interviews, and other actions mentioned or implied in these Instructions. 1.6. The Buyer will not be responsible or liable for such costs, regardless of the conduct or outcome of the tendering process. The Buyer reserves the right to accept or reject any tender, or to annul the tendering process and reject all Tenders, without incurring liability to any Tenderer and without notifying any tenderer of the reasons for the Buyer's action. 1.7. Tender procedures are subject to the law of Denmark and the rules applicable hereunder. 2. Eligibility of the Tenderer 2.1. Any possible requirement to the eligibility of the tenderer are stipulated in the contract notice published by the office for Official Publications of the European Commission. 2.2 The Tenderer shall notify the Buyer, as soon as practicable, of any change in the information submitted (including changes in the composition of the Tenderer or the legal status and place of establishment, grounds for exclusion, potential conflicts of interest, economic and financial standing, and technical capability/capacity of the Tenderer or its members). Any significant change in such information may disqualify the Tenderer from participation in the Tender and award of contract. 2.3 If the Tenderer is an association as a joint venture, consortium or other unincorporated grouping of two or more legal entities (here called a joint venture) the following shall apply: (i) The Tender shall be signed by all members of the joint venture. (ii) The members shall attach to the Tender a letter of intent including - a definition of the roles and percentage input in monetary terms of each Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 5 member of the joint venture, - a statement that the members of the joint venture will undertake, jointly and severally, the obligations of the joint venture under the contract if awarded, - a statement that the members of the joint venture appoint and authorise the lead member (named) with authority to bind the joint venture, and to act on its behalf in all matters in connection with or arising out of this Agreement, - a statement that the joint venture shall, upon the award of contract, submit for approval of the Buyer, a proper joint venture agreement detailing the role, input and responsibilities of the members as well as the administration and financing of the joint venture, - a statement that the composition or constitution of the joint venture shall not be altered without prior written consent by the Buyer. 2.4 No such member in a joint venture or sole Tenderer shall participate in the preparation of another Tenderer’s Tender for the same assignment. If any member is found to have participated in two or more Tenders, other than alternative Tenders from the same Tenderer, all such Tenders will be rejected. 2.5 However, any entity may be proposed as a prospective sub-contractor by more than one Tenderer. 2.6 Whenever an entity is to be associated as a sub-contractor or member in a joint venture, the major part of the Contract must be rendered by the legal entity or joint venture. 2.7 Tenderers shall not be eligible for the assignment if this would conflict with their prior or current obligations to other Buyers, or may place them in a position of not being able to carry out the assignment in the best interest of the Buyer. A Tenderer (if a joint venture any of its members) who may be affected by a potential conflict of interest shall attached to his Tender notify the Buyer of the details of this conflict of interest. Tenderers shall be disqualified from tendering and entering into a contract if there could be potential conflict between the Tenderer's activities under the supply contract and the Tender's activities in providing services or carrying out works for the same program/component/project. 3. The Tender Documents 3.1 The Tender shall be responsive to the complete Tender Dossier which comprises the documents listed in Clause 1 above and any Addenda to Tender Dossier which may be issued as described in this Clause 3. The Tenderer shall scrutinise each document immediately upon receipt and shall promptly give notice, to the party who issued the document, of any pages that appear to be missing. 3.2 The Tenderer must carefully examine documents of the Tender Dossier. Failure to comply with these Instructions or with any other tendering requirements will be at the Tenderer’s risk. 3.3 If the Tenderer requires any clarification of the Tender Dossier, he shall give notice to the contact point(s) as stated in section I of the Contract Notice. The notice must be in writing in the language as specified in section IV.3.6) of the Contract Notice. Requests that cannot be answered six days before the Tender Submission Date will not be answered. 3.4 The Buyer will respond to the notice by issuing (i) the text of the question or request for clarification and Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda (ii) 6 the clarification. This response shall be in writing and shall give no indication of the identity of the Tenderer who requested the clarification. Requests for clarification and responses shall be sent to all prospective Tenderers who received the Tender Dossier, but shall not constitute amendments to the Tender Dossier. Requests for clarification and responses will be posted on the website of the Buyer: http://um.dk/en/danida-en/activities/business/contracts/long/contract-opportunities/ if issued. It is the responsibility of the Tenderer to obtain clarifications issued by the Buyer. 3.5 If amendments are made to the Tender Dossier the Buyer will issue an addendum to the Tender Dossier. Each addendum to the Tender Dossier will be posted as mentioned in 3.4 above. Each addendum shall be binding upon the Tenderers. It is the responsibility of the Tenderer to obtain addenda issued by the Client. 3.6 At any time the Buyer may similarly issue an addendum to the Tender Dossier that postpones the Tender Submission Date. In this event, all rights and obligations of the Buyer and the Tenderers previously related to the original date shall thereafter be subject to the amended date. Individual meetings or communications (except for requests for clarifications) by the Tenderers with the Buyer or the Recipient are not allowed. 4. Preparation of the Tender 4.1 The Tenderer should obtain for himself, on its own responsibility, all information, which may be necessary for preparing the Tender and entering into the Agreement. 4.2 The Tender and all communications between the Tenderer and the Buyer shall be typed or written in indelible ink in the language specified in section IV.3.6 of the Contract Notice. Supporting documentation submitted by the Tenderer may be in another language if he also submits an appropriate translation of all its relevant passages into the language specified in the Contract Notice. 4.3 The Tender Dossier issued to the Tenderer, including any amendments instructed in an Addendum to Tender Dossier, shall be used without further changes. 4.4 The Tender to be submitted by each Tenderer shall comprise the Letter of Tender including documentation as listed in the Letter of Tender. 4.5 The Tenderer shall also submit the following supplementary information accompanying, but not forming part of his Tender (i) Any proposals for subcontracting the supply of any Goods and associated Services. 4.6 The Tender shall price the whole of the Goods and Services in accordance with the Tender Dossier. A Tender which excludes any part thereof shall be rejected as not responsive. 4.7 The tables in the Appendix shall be fully priced, with a rate entered for each item of Goods and Services as applicable, and the total shall be carried forward to the Offer. All rates and prices shall be entered in the same currency as that which is named in the Offer. 4.8 The completed Tender shall not have any alterations or erasures, except any which may be specified in an Addendum to Tender Dossier issued under Clause 3 of these Instructions. However, if alterations are necessary to correct errors made by the Tenderer, these corrections shall be endorsed with the signature of the person signing the Tender. 4.9 Only one Tender may be submitted by each Tenderer. 4.10 No alternative tenders are permitted. 4.11 It is emphasized that the Buyer will not be able to engage in traditional negotiations with the Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 7 Tenderers regarding the tenders submitted. With respect to negotiations, the Buyer will operate within the rules of negotiation set out, among others, in Council and Commission statement concerning Council Directive 93/37/EEC of 14 June 1993: "The Council and the Commission state that in open and restricted procedures all negotiations with candidates or tenderers on fundamental aspects of contracts, variations in which are likely to distort competition, and in particular on prices, shall be ruled out; however, discussions with candidates or tenderers may be held but only for the purpose of clarifying or supplementing the content of their tenders of the requirements of the contracting authorities and provided this does not involve discrimination." Hence, no contract or price negotiations as such shall be conducted and, therefore, the Tenderers should ensure that the wording of their tenders allows the contract to be concluded without prior negotiations between the tenderer and the contracting authorities. It is thus of the utmost importance that the tenders are comprehensive and consider all relevant issues, contain all necessary information, and are precise in every respect. 5. Submission of the Tender 5.1 The Tenderer shall prepare one original, one copy and one CD ROM/USB stick of the documents comprising the Tender and supplementary information, as described in Clause 4 of these Instructions. Each shall be submitted in an inner envelope within an outer envelope, with each document being clearly marked "ORIGINAL", "COPY" or "CD ROM/USB stick" as appropriate. In the event of any discrepancy between them, the ORIGINAL shall prevail. The documents on the CD ROM/USB stick shall be in PDF format and as a single file only. Brochures shall not be included on the CD ROM/USB stick. 5.2 The original of the Tender shall be signed by a person or persons duly authorised to bind the Tenderer. Proof of authorisation, in the form of a written power of attorney, shall be annexed to the Offer. 5.3 The inner and outer envelopes shall be marked “Do not open” and be addressed as specified in the Contract Notice Annex A with the title attributed to the contracting authority as specified in the Contract Notice Section II.1.1) and the file reference number specified in the Contract Notice Section IV.3.1. 5.4 The inner envelopes shall indicate the name and address of the Tenderer to enable the Tender to be returned unopened in the event of it being declared "late". The outer envelopes shall give no indication of the Tenderer. 5.5 If a Tender is misplaced or opened prematurely because an envelope was not sealed and marked as instructed above, the Buyer shall not be responsible and the Tender may be rejected. 5.6 The original, the copy and the CD ROM/USB stick of the Tender must be delivered to the address specified above no later than the time, on the Tender Submission Date, as stated in the contract notice IV 3.4). Tenders received thereafter will be returned unopened. 5.7 The Tenderer may modify or withdraw its Tender after submitting it, if the modification or notice of withdrawal is received in writing before such prescribed time for submission of Tenders but not thereafter. The Tenderer’s modification or notice of withdrawal shall be prepared, sealed, marked and delivered in accordance with the provisions of this Clause 5, with the inner and outer envelopes additionally marked "MODIFICATION" or "WITHDRAWAL", as appropriate. In particular, the modification or notice of withdrawal shall be signed by a person or persons duly authorised to bind the Tenderer, and proof of authorisation shall be annexed. Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 8 5.8 A Tender submitted other than as described in this Clause 5 may be rejected by the Buyer and returned to the Tenderer. 5.9 The Tender shall remain valid and open for acceptance for the period of 60 days from the Tender Submission Date. The Tenderer shall calculate the date on which validity expires and insert this expiry date in the second paragraph of the Letter of Tender. Prior to this expiry date; the Buyer may by written notice request the Tenderer to extend the validity period. The Tenderer may refuse the request, but shall not modify its Tender other than by extending its validity. 6. Tender Opening 6.1 Tenders and other submissions, which are in accordance with Clause 5 of these Instructions, will be opened after the Tender Submission Date and time. 6.2 The Tenderers' representatives are not permitted to attend the opening. 6.3 Tenders for which the Buyer has received a valid notice of withdrawal in accordance with Clause 5 of these Instructions shall not be opened. 6.4 The Tenders will be examined by the Buyer to determine whether they appear to be complete, properly signed, and generally in order. 6.5 After this opening of Tenders, information relating to the examination, clarification, evaluation, and comparison of Tenders, and recommendations concerning award of the assignment shall not be disclosed to Tenderers or other persons not officially concerned with the tendering process. Any effort by a Tenderer to influence the Buyer or the Agent in these processes may result in the rejection of the Tenderer’s Tender. 7. Tender Evaluation 7.1 The Buyer will determine whether the Tenderer meets the Conditions for participation as specified in part III.2. of the Contract Notice. If a Tender does not meet the required minimum conditions, it shall be rejected by the Buyer. 7.2 As a part of the detailed evaluation of Tenders, the Buyer will determine whether each Tender is substantially responsive to the requirements of the Tender Dossier. 7.3 If a Tender is not substantially responsive to the requirements of the Tender Dossier, it will be rejected by the Buyer. For the purpose of this clause, a substantially responsive Tender is a Tender compliant with all the terms, conditions, and specifications of the Tender Dossier without material deviation or reservation. A material deviation or reservation is one which affects in any substantial way the scope, quality, or performance of the Contract, or which limits in any substantial way, inconsistent with the Tender Dossier, the Buyer's rights or the Tenderer's obligations under the Agreement, and the rectification of which deviation or reservation would affect unfairly the competitive position of other Tenderers presenting substantially responsive Tenders. 7.4 The Buyer will only evaluate and compare the Tenders that have been determined to be substantially responsive to the requirements of the Tender Dossier. The Contract Notice, section II.1.9) will state whether alternative Tenders are permitted or not. If alternative Tenders are permitted, only the alternatives submitted by the Tenderer with the highest rated compliant and responsive Tender shall be considered as a basis for finalising a contract. Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 9 Responsive Tenders will first be checked by the Buyer for any arithmetic errors in computation and summation, and any errors will be corrected as follows: 7.5 (i) The amount entered in the Offer may be considered acceptable without any of the corrections and adjustments described in these sub-paragraphs. If there is any discrepancy between amounts in figures and in words, the amount in words will take precedence. (ii) If there is a discrepancy between the amount entered in the Offer and the equivalent sum computed on the basis of the Appendix, the Buyer may make corrections and/or adjustments, applying the principles described in these sub-paragraphs. The Tenderer shall be notified accordingly, specifying each error, correction and adjustment. If the Tenderer does not accept these notified corrections and adjustments, his Tender may be rejected. (iii) If there is a substantial discrepancy between a stated amount and the correct amount calculated by multiplying the stated unit rate by the quantity, and the rate seems to have been stated in error (inconsistent with the Tenderer's likely intentions), the stated unit rate shall be amended and the stated amount will be binding. (iv) If there is a discrepancy between a stated amount and the correct amount calculated by multiplying the stated unit rate by the quantity, and either the discrepancy is not substantial or it is reasonable to assume that the stated rate is consistent with the Tenderer's intentions, the stated unit rate will be binding and the stated amount shall be amended. (v) For lump sum items, the stated amounts will be binding ("unit" rates will be disregarded). (vi) No discount will be considered unless the discount is carried to the Offer. For the purpose of evaluating Tenders, the Buyer will determine for each Tender the Evaluated Tender Amount, making (i) any correction for errors as described above, and (ii) appropriate adjustment for any acceptable variation, deviation, discount or other alternative offer not reflected in the submitted amount or these corrections. 7.6 The evaluation of the Tenders shall be based upon the principles outlined in the Evaluation Criteria annexed to these Instructions. Unless specifically stated, no criterion will take precedence over any other criteria, and Tender evaluation shall be based on an overall consideration. 7.7 To assist in the examination, evaluation and comparison of Tenders, the Buyer may ask any Tenderer for clarification of his Tender, including breakdowns of unit rates and lump sum prices. The request for clarification and the response shall be in writing. No change in the price or substance of the Tender shall be sought, offered or permitted except as required to confirm the correction of arithmetic errors discovered by the Buyer during the evaluation of the Tenders. 8. Award 8.1 The Buyer intends to award the assignment to the Tenderer whose compliant Tender has been determined to be responsive to the Tender Dossier and has achieved the highest total score in the evaluation (the most economically advantageous Tender), provided that the Tenderer still has the capability and resources to carry out the Contract effectively. The Buyer will award the contract based on the lots as defined in the contract notice. Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 10 The Buyer reserves the right to cancel the tender process or reject any or all Tenders at any time prior to the award, without thereby incurring any liability to the affected Tenderer or Tenderers or any obligation to inform the affected Tenderer or Tenderers of the grounds for the Buyer's action. 8.2 Having decided which Tender to accept, the Buyer will sign the original and a copy of the Acceptance section of the Agreement, and will return a complete signed copy of the Agreement to the successful Tenderer. 8.3 The Buyer may, prior to signing the Acceptance, request the preferred Tenderer to clarify and supplement issues of the compliant Tender or the alternative Tender which the Tenderer has submitted. Such requests and detailing given shall be in writing, or if given at joint discussions, minutes shall be prepared by the Buyer. Thereafter, the Buyer may seek the Tenderer's agreement to a Memorandum of Understanding recording the outcome of the joint discussions of the Tender. This Memorandum of Understanding (if any) will constitute the agreed basis upon which a contract could be concluded and (i) shall be binding on the Tenderer as an acceptable clarification and/or amendment of his Tender until its validity expires, (ii) shall be wholly subject to a subsequent Contract Agreement, and (iii) shall not bind the Buyer nor commit him to entering into any contract under any terms. 8.4 Subject to approval of the funding by the relevant appropriation authorities, the Buyer shall not sign the Acceptance until the expiry of a stand-still period of 10 calendar-days following the Buyer’s electronic notification of all Tenderers of the award of the contract, or 15 calendar days following the Buyer’s notification of the award by letter. 8.5 No offer, payment, consideration, or benefit of any kind, which constitutes illegal or corrupt practices, shall be made, either directly or indirectly, as an inducement or reward in relation to: (i) the tendering, (ii) the award of the contract, or (iii) the execution of the contract. Any such practice will be grounds for the immediate cancellation of the Contract and for such additional actions (civil and/or criminal) as may be appropriate. At the discretion of the Danish Ministry of Foreign Affairs, a further consequence of any such practice can be the definite exclusion from any tendering. Instructions to Tenderers DANIDA – Procurement of Tarpaulins - Uganda 11 ANNEX A: CRITERIA AND METHOD OF EVALUATION Award will be made to the Tenderer with the economically most advantageous Tender. (i) The criteria and sub-criteria shall comprise Criterion/sub-criterion Weights Overall Weighting Price part Evaluated Tender Price 100% Total technical and price part 100% 100% Important notice I: The requirements of technical specifications for the tarpaulins are to be considered as minimum requirements. Tenders containing tarpaulins that fail to meet these minimum requirements will be rejected. The Tenderer must fill in the column labelled “Tenderer’s confirmation/data” of the technical specification. Important notice II: The latest delivery date is the 1st October 2016. Tenders proposing later delivery dates will be rejected. (ii) N/A (iii) The total price is calculated by adding the Evaluated Tender Price and the capitalised costs (if any) and the Tender with the lowest total price given a score of 100 points and other Tenders' scores inversely proportional to their total price. (iv) N/A The Tenderer obtaining the highest total score shall be invited to finalise a contract. ItT, Appendix: Criteria and Method Evaluation DANIDA – Procurement of Tarpaulins - Uganda 12 LETTER OF TENDER (To be printed on the Tenderer’s official letter head, and addressed to the Contact Point stated in the Contract Notice I.1)) Contract Notice: (insert Contract Notice number) Subject: (insert title as stated in Contract Notice II.1.1)) We hereby submit our Tender with reference to for the above mentioned Contract Notice. (if this Tender is being submitted by a group of entities, hereinafter called a Joint Venture, insert the following: This Tender is being submitted by the following entities in Joint Venture: Lead member name and address Name(s) and address(es) of other members of the Joint Venture The members of the joint venture have authorised the Lead Member with authority to bind the joint venture, and to act on its behalf in all matters in connection with or arising out of the Tender. The composition or constitution of the Joint Venture shall not be altered without prior written consent by the Buyer. The members of the Joint Venture shall be jointly and severally bound by this Tender and (if accepted) the Agreement. A letter of intent to enter into a joint venture signed by all the members is attached to the Tender.) With reference to the Contract Notice point: III.1.4): We confirm that we embrace the principles of the United Nations Global Compact if the Tenderer is a Joint Venture confirmation that each member embraces the principle. III.2.1): We confirm that we are not in a conflict of interest which could exclude us from participating in the Tender. We also confirm that the Tenderer and its members are affected by no potential conflict of interest and has no particular link with other parties involved in the particular project other than as informed to the Buyer in writing. III.2.1): We confirm that we are not in a situation which shall or may exclude us from participating in a public contract according to Article 45.1 and 45.2. (a), (b), (c), (d) and (g) of the Directive. III.2.1): We attach documentation that we are not in a situation which shall or may exclude us from participating in a public contract according to Article 45.2. (e) and (f) of the Directive (Format of the Solemn Declaration enclosed. If the Tenderer is a Joint Venture declarations must be attached for each member of the Joint Venture). III.2.2): We confirm that we meet the minimum annual turnover as stated in the Contract Notice and attach a list of our annual turnover over the last three years. Agreement DANIDA – Procurement of Tarpaulins - Uganda 13 III.2.3): We confirm that we meet the minimum requirement of similar contracts provided as stated in the Contract Notice and attach a list of the similar products provided in the last three years. III.2.3): We confirm that we have an ISO 9001 Certificate or similar, and attach documentation to that effect or sufficient extracts thereof, cf. Article 48 of the Directive. We accept that our Tender may not be considered if we in the opinion of the Ministry of Foreign Affairs fail to meet the minimum requirements as specified in part III.2) of the Contract Notice for this contract. We have examined the Instruction to tender, Annex A. Criteria and Measure of evaluation, Agreement, Annex to agreement, Condition of Contract, and Technical specifications. We accordingly offer to deliver the goods in conformity with all these documents and this Tender for the Total Price as stated in the Agreement.. We agree to abide by this Tender for a period of 60 days from the Tender Submission Date, and that it shall remain binding upon us and may be accepted at any time before that date. We undertake, if our Tender is accepted, to commence and complete the deliveries within the periods stated in the Conditions of the Agreement. We accept that any significant change in the information submitted with this letter may disqualify us from participation in the Tender and award of contract. We undertake to notify the Buyer, as soon as practicable, of any change in this information. We also accept that you have the right to cancel the tender process or reject any or all Tenders at any time prior to the award, without thereby incurring any liability to the affected Tenderer or Tenderers. (Authorised signature of Tenderer and each member of a Joint Venture) Attachments: 1. Joint Venture letter of intent, if applicable 2. Documentation(s) on our personal situation, cf. Article 45, 3. in the Directive 3. Solemn declaration 4. Annual reports or extracts thereof. 5. EN ISO 9001 certificate or similar. Agreement DANIDA – Procurement of Tarpaulins - Uganda 14 6. Technical and financial proposal in one original, one copy and on a CD ROM/USB stick as one pdf file not exceeding 10 MB. 7. Power of attorney for the person(s) signing the Letter of Tender. 8. The Agreement including the Seller's Offer, the completed Appendix to the Agreement. 9. Each addenda to the Tender Dossier (as described under Clause 3 of the Instructions to Tenderers). 10. Conditions of Contract. 11. Delivery Schedule. 12. Specifications, drawings, prepared by the Buyer and including the Tenderer’s confirmation/data for the technical requirements. 13. Schedule of Prices. Agreement DANIDA – Procurement of Tarpaulins - Uganda 15 Format of the Solemn Declaration referred to in the Contract Notice and above (If the Tenderer is a Consortium the declaration must be submitted by the Leader and each Member of the Consortium) SOLEMN DECLARATION In accordance with Danish Law’s Act no. 336 of 13 May 1997 on limitation of debtors possibilities to participate in public procurements and on change of certain other laws (Making effective the collection of arrears to the authorities), the authorities shall on procurement of construction and plant works as well as purchases of goods and services demand that any tenderer simultaneously with submitting its tender make a solemn declaration on the extent of the tenderer’s unpaid, due debts to the authorities in the form of taxes, duties and social security contributions in accordance to Danish law or the law of the country of the tenderer’s establishment. In accordance with the regulations of the abovementioned law the undersigned hereby solemnly and under liability to punishment give the below mentioned declaration. Company name, address, telephone number and registration number: Information on debts to the authorities (make selection): 1 The company has no unpaid, due debts to the authorities. 2 The company has unpaid, due debts to the authorities but these debts do not exceed DKK 100.000 (or an equivalent amount in another currency). 3 The company has unpaid, due debts to the authorities and these debts exceed DKK 100.000 (or an equivalent amount in another currency). The following points 4 or 5 and 6 shall only be filled, if point 3 has been selected. 4 Security has been provided to the collection authority for payment of the part of the debts that exceed DKK 100.000 (or an equivalent amount in another currency). Security will be provided to the collection authority for payment of the part of the debts that that exceed DKK 100.000 (or an equivalent amount in another currency). 5 6 An arrangement for payments concerning unpaid, due debts has been made with the collection authority, and this arrangement has been kept. Date of establishment of security/arrangement: Collection authority: NA Year: Month: Day: Name Address: Postal code: Signature: Date: City: Company management signature and company stamp: Agreement DANIDA – Procurement of Tarpaulins - Uganda 16 Financial and Technical Capacity of Tenderer CONDITIONS FOR PARTICIPATION If the Tenderer is a consortium, the consortium as a whole should meet the required minimum capacities (add rows as required). Economic and financial ability (Contract Notice III.2.2) Requirements and possible minimum levels to the economic and financial standing of the Tenderer are specified in the Contract Notice, and are requested in accordance with Article 47 of the Directive. a) Annual turnover of the Tenderer (add rows as required) DKK mill. Most recent year Most recent year -1 Annual Turnover Most recent year -2 Technical and/or professional ability (Contract Notice III.2.3) Requirements to the technical and/or professional ability of the Tenderer are specified in the Contract Notice in accordance with Article 48 of the Directive. If the applicant is a consortium only a maximum of the 10 most relevant project references of the consortium members are to be listed. a) List of the similar supplies provided in the last three years - Maximum of 10 project references (add forms as required) Ref. No. 1 Legal entity Project title Country Name of Buyer Dates (mm/yy – mm/yy Project value Mill. Shared carried out by legal entity DKK % Consortium members Description of Project Type of products provided by legal entity b) Technicians or technical bodies Not applicable c) Measures used for ensuring quality d) Capacities for production, studies, and/or research Not applicable Agreement DANIDA – Procurement of Tarpaulins - Uganda 17 e) Educational and professional qualifications Not applicable f) Environmental management measures Not applicable g) Average annual manpower Not applicable h) Tools/plants etc. Not applicable i) Sub-contracting Subcontracting is allowed. Please indicate the proportion of the contract intended subcontracted: j) Products supplied Not applicable Signed on behalf of the Tenderer Date: Name: Signature: Agreement DANIDA – Procurement of Tarpaulins - Uganda 18 AGREEMENT The Buyer is: The Ministry of Foreign Affairs of Denmark, Asiatisk Plads 2, Copenhagen, Denmark The Seller is: (name & address) _________________________________________________________ The Buyer desires Goods to be supplied in conformity with the tender documents. The Seller has examined the Tender Documents and presented its offer dated ………2015, which forms part of this Agreement and offers to supply and deliver the Goods in conformity with the Contract for the sum (in words & figures) of ___________________________________________________________________________________ ______________________________ DANISH KRONER (DKK) ( _____________________________ ) This offer, of which the Seller has submitted an original plus one signed copy, may be accepted by the Buyer by signing and returning a signed copy of this document to the Seller by ___________(date) The Seller undertakes promptly to acknowledge receipt of such copy signed by the Buyer. The Seller understands that the Buyer is not bound to accept the lowest or any other offer. Date Authorised signature(s) of Seller (if a joint venture, authorised signatures of all members): Signature Name in the capacity of Signature Name in the capacity of Signature Name in the capacity of Agreement DANIDA – Procurement of Tarpaulins - Uganda 19 BUYER’S ACCEPTANCE The Buyer has, by signing below, accepted the Seller’s offer and agrees that in consideration for the supply and delivery of the Goods and the Services by the Seller, the Buyer shall pay the Seller in accordance with the Contract. This Agreement comes into effect on the date when the Seller receives this document signed by the Buyer. Date Authorised signature of Buyer Signature Name in the capacity of Unless established otherwise, the Seller shall be deemed to have received this signed Agreement five days after the above date of signature of the Buyer’s Acceptance. Agreement DANIDA – Procurement of Tarpaulins - Uganda 20 APPENDIX TO THE AGREEMENT This Appendix forms part of the Agreement (Note: with the exception of the items for which the Buyer’s requirements have been inserted, the Seller shall complete the following information before submitting his offer) Subject Sub-Clause Data of the Conditions of Contract Documents forming the Contract listed in the order of priority 1.1(a) and 1.2 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Agreement Minutes of Contract clarification meeting Appendix Amendments to the Contract Documents issued as addenda Conditions of Contract Delivery Schedule Specifications, drawings and schedules prepared by the Buyer Seller's comments and detailing of the specifications, drawings, and schedules Seller's brochures and/other details of the main items including spare parts Priced list of the Goods Appendix DANIDA – Procurement of Tarpaulins - Uganda Subject Sub-Clause Data of the Conditions of Contract Buyer and buyer’s Representative 1.1(c) 21 The Buyer is: The Ministry of Foreign Affairs of Denmark. Contact: HCP, Danida Business Contracts, Asiatisk Plads 2, DK-1448 Copenhagen K, Denmark. Email: danidacontracts@um.dk Tel: +45 33920000 HCP, Danida Business Contracts will act in matters pertaining to the administration of the Agreement, and has delegated the authority to act as Buyer’s Representative for matters pertaining to the delivery of the goods in the Recipient Country to: Embassy of Denmark, Uganda Plot 3, Lumumba Avenue, P.O. Box 11243, Kampala, Uganda Tel +256 (0) 312 263 211, Fax +256 (0) 312 264 624 Email: kmtamb@um.dk Recipient and Recipient’s Country 1.1(d) The Recipients are farmers in rural districts of Uganda. The Buyer’s Representative undertakes all tasks assigned in the Contract to the Recipient. The Recipient Country is Uganda. Goods 1.1(h) See the technical specifications for the Goods. Site for deliveries 1.1(j) See the Schedule of prices including delivery details. Time for Delivery 1.1(l) The latest time for delivery is: 1st October 2016 Note: The delivery may not be take place earlier than: 1st September 2016. Contract Price 1.1(m) The Contract Price includes all pre- and postshipment inspections and tests as well as all other costs related to supply under ICC Incoterms trade term DDP (Delivered Duty Paid). Appendix DANIDA – Procurement of Tarpaulins - Uganda 22 Subject Sub-Clause Data of the Conditions of Contract Interpretation of trade terms 1.2(c) ICC Incoterms 2010 Law of the Contract 1.4 Law of the Buyer’s Country Language for communications 1.5 English Provision of Goods 2.1 The Seller shall supply and deliver to the sites specified in the schedule of prices. Tests and Inspections 2.3(a) The Seller shall present a clean certificate of preshipment inspection and tests demonstrating that the product is in conformity with the technical specification. Further to this, upon arrival in the Recipient Country, the Buyer’s Representative shall select one (01) sample of the products for post-shipment inspection and test. The Buyer’s Representative shall send the sample for compliance inspection and test. The costs for the inspection and tests shall be included in the Contract Price. The Seller shall engage: Teknologisk Institut Department for Plastics Technology Teknologiparken Kongsvang Allé 29 DK - 8000 Aarhus C Telephone +45 72 20 20 00 Fax +45 72 20 10 19 info@teknologisk.dk Contact Mr Jan Kyster Madsen Cell +45 72 20 15 44 jkym@teknologisk.dk to carry out the pre- and post-shipment inspections and tests. All costs related to the inspections and tests shall be included in the Contract Price ICC Incoterms Trade Term 2.4 The Seller shall supply and deliver the goods DDP (Delivery Duty Paid) according to Incoterms 2010. Warranty 2.6 The Seller’s warranty obligation is as follows: The Goods are: (a) new, unused, and without any defects, damage or deterioration, Appendix DANIDA – Procurement of Tarpaulins - Uganda 23 Subject Sub-Clause Data of the Conditions of Contract Warranty Period 2.7(b) The warranty under Sub-Clause 2.6 shall remain valid until delivery of the Goods in the Recipient’s Country. Performance security 2.10 N/A Amount payable due to late delivery or performance 5.2 0.5% per day of the Contract Price for such Goods, and for Services associated with such Goods, as cannot be used for their intended purposes as a result of the delay. The maximum amount payable shall be 10 % of the Contract Price. When the number of days that the Seller failed to deliver surpasses the number of days corresponding to the maximum payable amount the Buyer shall be entitled to terminate the Contract without further notice. Payment for Goods 6.2 Payment for the Goods shall be made as follows: 40% of the contract value against bank guaranty *) of the same amount and upon presentation of a clean certificate for pre-inspection and tests. Payment of this rate may take place without the results of the UV test being available. 60% upon completion of delivery upon presentation of a clean certificate for postinspection and tests. This rate may be paid when the post-shipment inspection and tests have been accomplished with the exception of the UV test, against a bank guarantee *) of the same amount to be liberated when the UV test has been successfully completed. *) the attached Form of Advance Payment Security must be used. Payment for Goods 6.2 The Seller is only entitled to payment upon delivery of the Goods for a complete delivery and not upon delivery of lesser quantities. Appendix DANIDA – Procurement of Tarpaulins - Uganda 24 Subject Sub-Clause Data of the Conditions of Contract Rate of interest 6.7 2 per cent points above the discount rate of the central bank in the country of the currency of payment. Arbitration, rules 8.1 Unless settled amicably, the dispute shall be settled finally and bindingly by "The Danish Institute of Arbitration" in Copenhagen. The law governing the arbitral proceedings shall be Danish, while the language shall be English or as otherwise agreed between the parties to the Agreement. The arbitration panel shall decide the sharing of the costs of the panel between the parties to the Agreement. Contract Price 6.1, 6.2, 6.3 See the Schedule of Prices. Appendix DANIDA – Procurement of Tarpaulins - Uganda 25 SCHEDULE OF PRICES INCLUDING DELIVERY DETAILS Prices in DKK Recipient organisation Arua DFA AFARD Zombo DFA Kitgum DFA RAU Agago Place of delivery Arua Town, Arua District, West-Nile *) Nebbi Town, Nebbi District, West-Nile *) Zombo Town, Zombo District, West-Nile *) Kitgum Town, Kitgum District, Acholi *) Kalongo Town, Agago District, Acholi *) Total delivery and total contract price No of Unit Price Unit Price tarpaulins EXW DDP DKK DKK Total contract price DDP DKK 6.600 3.900 2.700 6.900 3.900 24.000 *) The precise place of delivery in each of the towns will be communicated later to the successful Tenderer. Appendix DANIDA – Procurement of Tarpaulins - Uganda 26 CONDITIONS OF CONTRACT Subject Definitions Clause 1 GENERAL PROVISIONS 1.1 In the Contract, as defined below, the words and expressions defined shall have the following meanings assigned to them, except where the context requires otherwise: (a) "Contract" means the Agreement and the other documents listed in the Appendix thereto. (b) "Specification" means the document as listed in the Appendix, and any variations to the specification which are agreed between the Buyer and the Seller. (c) "Buyer" means the person named as buyer in the Agreement and the legal successors in title to this person, but not (except with the consent of the Seller) any assignee. "Buyer’s Country" means the country of the Buyer’s address stated in the Agreement. (d) "Recipient" means the person named as recipient in the Appendix and the legal successors in title to this person. "Recipient Country" means the country of the Recipient’s address stated in the Appendix. (e) "Local Partner taking delivery" means the local partner taking delivery of the Goods and Services. (f) "Seller" means the person named as seller in the Agreement and the legal successors in title to this person, but not (except with the consent of the Buyer) any assignee. "Seller’s Country" means the country of the Seller’s address stated in the Agreement. (g) "Party" means either the Buyer or the Seller. (h) "Goods" means the materials, plant, and equipment and other things, as specified in the Contract, which are to be supplied and delivered by the Seller. (i) "Services" means the services (if any), associated with the supply as specified in the Contract, which are to be performed by the Seller. Unless expressly stated otherwise, the meaning of "Services" does not include his obligations of carriage and insurance. (j) "Site" means the place at which the Goods and Services are to be delivered, in the Recipient’s Country, as stated in the Appendix. (k) "Day" means a calendar day. (l) "Time for Delivery" means the date by or on which, or period within which, the Goods are to be delivered as stated in the Appendix, as extended under Sub-Clause 1.6 or as agreed. If a period is so stated, it shall (unless otherwise specified) be calculated from the date on which the Seller receives the Agreement signed by the Buyer, accepting the Seller’s offer. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause (m) (n) Interpretation 27 1.2 "Contract Price" means the price stated in the Agreement for the Goods and Services, and includes adjustments (if any) in accordance with the Contract. Unless expressly stated otherwise, the Contract Prices for Goods stated in the Appendix include all pre-shipment inspections, carriage and insurance. "Force Majeure" means an exceptional event or circumstance: which is beyond a Party’s control, which such Party could not reasonably have provided against before entering into the Contract, which, having arisen thereafter, such Party could not reasonably have avoided or overcome, and which is not substantially attributable to the other Party. In the Contract, except where the context requires otherwise: (a) words indicating persons or parties include corporations and other legal entities, (b) words indicating one gender include all genders, words indicating the singular also include the plural, and words indicating the plural also include the singular, and (c) "EXW", "DDP", and other similar international trade terms shall be interpreted in accordance with the Incoterms as published by the International Chamber of Commerce ("ICC") and as stated in the Appendix, or (if not so stated) with ICC’s Incoterms 2010. The documents forming the Contract are to be taken as mutually explanatory of one another. For the purposes of interpretation, the priority of the documents shall be in accordance with the order as listed in the Appendix. The Contract 1.3 The Contract constitutes the entire agreement between the Buyer and the Seller, and supersedes any previous communications (written and oral) which are not mentioned in the Appendix. No amendment of the Contract, including (without limitation) waiver of a Party’s rights or remedies, shall be valid unless it is in writing and signed by authorised representatives of both Parties. No forbearance, indulgence or other action or inaction of a Party shall be construed as any such waiver. Law 1.4 The Contract shall be governed by the law stated in the Appendix. Communications 1.5 Wherever provision is made for the giving or issue of any notice, instruction or other communication by any person, unless otherwise specified such communication shall be written in the language stated in the Appendix and shall not be unreasonably withheld or delayed. The Buyer, Seller or Recipient may amend his address for communications by notice to the other two, but shall not amend his Country. DANIDA – Procurement of Tarpaulins - Uganda 28 Subject Clause Statutory Obligations 1.6 The Parties shall comply with the laws of the countries where activities are performed. If the laws of the Recipient’s Country are changed (including repeal or modification of existing law or introduction of new law) after the date of the Seller’s Offer and the change affects the Seller’s performance of his obligations under the Contract, the Time for Delivery and/or the Contract Price shall be increased to take reasonable account of any delay and/or of any increase in the Seller’s costs resulting from such change. 2 THE SELLER Provision of Goods 2.1 The Seller shall supply and deliver to the Site each item of the Goods and its commercial invoice and related documents on or by its Time for Delivery and in accordance with the Contract. Provision of Services 2.2 The Seller shall perform the Services (if any) in accordance with the Contract and exercising reasonable skill, care and diligence. The Seller may import any personnel into the Recipient’s Country who are necessary for performing the Services, and shall arrange for this personnel to be provided with visas and work permits. The Seller and his personnel shall respect the Country’s recognised festivals, days of rest and religious or other customs. Tests and Inspections 2.3 Prior to delivery, the Seller shall (notwithstanding ICC’s Incoterms): (a) carry out all such tests, and facilitate all such Buyer’s inspections, as are specified in the Contract, and (b) arrange for the carrying out of all such pre-shipment inspections as are mandated in the Seller’s Country, in a transit country, or in the Recipient Country, all at the Seller’s cost. All these specified tests, specified inspections and mandated inspections shall be carried out on the premises of the Seller, or on the premises of a subcontractor named in the Contract, or at another suitable location in the Buyer’s or Recipient Country. Unless otherwise stated in the Contract, the suitable location for each such test or inspection shall be the responsibility of, and at the option of, the Seller. The Seller shall give the Buyer (or a notified representative) not less than sixty hours’ notice of the location, timing and other arrangements for each of these tests and inspections. The Seller shall also give the Buyer not less than ten days’ notice in respect of any such location as was at the option of the Seller. Unless the location is in the Buyer’s or Recipient Country, the Seller shall assist the Buyer in obtaining any visas which are required in order to attend the tests or inspections. The Buyer or his designated representative shall be entitled to attend and witness the specified tests and carry out the specified inspections, and the Seller shall obtain any subcontractor’s permission which may be necessary for such attendance. The Seller shall (at his cost) provide all reasonable facilities and assistance, including access to drawings DANIDA – Procurement of Tarpaulins - Uganda Subject 29 Clause and production data on the premises of the Seller or his subcontractor. Unless otherwise stated in the Contract, neither Party shall be required (notwithstanding ICC’s Incoterms) to reimburse the other Party for the costs incurred in connection with the specified tests and the inspections, including travel and accommodation expenses attributable to such attendance. The Buyer or his designated representative shall be entitled to require the Seller to carry out any additional test that he considers necessary to verify that the characteristics and performance of Goods comply with the Contract. Unless any such additional test indicates that Goods do not comply with the Contract, the cost of the additional test shall be borne by the Buyer. The Seller shall supply three copies of a report of the results of each specified test and (if so instructed) of each additional test. If any test or inspection indicates that any Goods do not comply with the Contract, the Seller shall rectify or replace the non-compliant Goods, and shall then repeat the specified tests and inspections, at the Seller’s cost. No test, inspection or report shall release the Seller from any warranty or other obligations, under the Contract or otherwise. Incoterms Trade Terms 2.4 The Seller shall supply and deliver the Goods according to the ICC Incoterms trade terms informed in the Appendix. Insurance of Goods 2.5 In addition to the above requirements and those described more fully in ICC’s Incoterms and the Specification, the Seller shall obtain (at his cost) cargo insurance covering the Goods throughout their transport to and within the Recipient Country, until delivery at the Site. The insurance shall be obtained from underwriters or insurers of good repute, and shall entitle the Buyer to claim directly from the insurers. Warranty 2.6 The Seller warrants that, unless otherwise stated in the Contract, all the Goods are: (a) new, unused, and without any defects, damage or deterioration, (b) fit for the purposes for which Goods of the same description would ordinarily be used, and (c) fit for the particular purposes known to the Seller (if any), and possess the qualities of Goods that the Seller held out to the Buyer as a sample or model (if any), when the Contract was made. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause Validity of Each Warranty 2.7 30 For each item of the Goods, the warranty under Sub-Clause 2.6 shall remain valid until the expiry of: (a) the Maximum Warranty Period stated in the Appendix (if any), (b) the period of 365 days from delivery and taking-over, or (c) for Goods imported into the Recipient Country for the Contract, the period of 546 days from arrival in the Recipient Country, whichever period expires first for such item. This warranty shall not cover damage which is attributable to an act or omission by the Buyer or the Recipient, and shall not cover damage which occurs in the Recipient Country and is beyond the control of the Seller. Non-compliance 2.8 Upon receiving a claim under the warranty from the Buyer or the Recipient, or otherwise becoming aware that an item of Goods or Services does not comply with the Contract, the Seller shall promptly rectify or replace the damaged or defective item at his cost, and shall not be entitled to payment for it until so rectified or replaced. If the Seller fails to rectify or replace a damaged or defective item within a reasonable period of being so notified by (or on behalf of) the Buyer, the Buyer may (at his option) rectify or replace the noncompliant item at the Seller’s risk and cost, and without prejudice to any other rights he may have under the Contract or otherwise. Local Supply 2.9 In respect of any item of Goods which is supplied from within the Recipient Country or was not imported for the purposes of the Contract (or both), the Seller shall not be reimbursed for any element of duties, taxes and other charges which may have been paid, whether in respect of materials imported into the Recipient Country or otherwise. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause Performance Security 2.10 31 If stated in the Appendix, the Seller shall deliver to the Buyer a performance security in a form and from a third party approved by the Buyer. The performance security shall be in the amount and currency stated in the Appendix, and shall be delivered to the Buyer within twenty days of the date on which the Seller received the Agreement signed by the Buyer, accepting the Seller’s offer. The Seller shall not be entitled to receive any payments under the Contract until the Buyer has received the performance security. The Buyer shall not make a claim under the performance security, except for amounts to which the Buyer is entitled in the event of failure by the Seller to comply with the Contract. The Buyer shall return the performance security to the Seller by the earlier of the following dates: (a) fifty two weeks after the Seller becomes entitled to receive the taking-over notice described in Sub-Clause 5.4, or (b) when the validity of the warranties, for all Goods other than spare parts, expires in accordance with Sub-Clause 2.7, and the Seller has completed performance of his obligations under Sub-Clause 2.8. Labour 2.11 The Seller shall ensure that no one under 14 years of age or the age of the end of compulsory schooling in that area, whichever is higher, is engaged for the Contract. The Seller shall respect the rights of freedom of association, right to freedom from forced labour, right to freedom from discrimination on the basis of race, colour, sex, religion, political opinion and the social origin as these principles are defined in the relevant Conventions of the International Labour Organisation. Joint and Several Liability 2.12 If the Seller is a joint venture, consortium or other unincorporated grouping of two or more persons, they shall be deemed to be jointly and severally liable to the Buyer for the performance of the Contract, and shall give notice to the Buyer of the person who has authority to bind the Seller and each of these persons. The Seller’s composition or legal status shall not be altered without the prior consent of the Buyer. 3 THE BUYER AND THE RECIPIENT Payment 3.1 In consideration of the supply and delivery of the Goods and the performance of the Services, in accordance with the Contract, the Buyer shall pay the Contract Price to the Seller in accordance therewith. Inspections 3.2 The Buyer shall, upon receiving reasonable notice from the Seller, carry out all such Buyer’s inspections as are specified in the Contract, or notify the Seller that the Buyer does not wish to do so. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause The Recipient 3.3 32 The Buyer shall require the Recipient to carry out the duties assigned to him in the Contract. Unless the Recipient is the Buyer, the Recipient shall have no authority to amend the Contract or to assign any part of the Contract or any benefit or interest in or under the Contract. The Parties acknowledge that, for the purposes of considering any rights or obligations arising from the Contract, the Buyer and the Recipient are deemed to be the joint beneficiaries of the Goods and Services. Recipient’s General Obligations 3.4 The Recipient shall (at his own cost, notwithstanding ICC’s Incoterms): (a) take delivery when the Seller hands over the Goods, and (b) bear all risks of loss or damage to the Goods from the time when the Recipient is required to take delivery of them, except in respect of loss or damage which is directly attributable to a default by (or on behalf of) the Seller. Recipient’s General Obligations for Services 3.5 The Recipient shall (where he is in a position to do so) provide such reasonable assistance as the Seller may reasonably request for the performance of the Services. The cost of such assistance shall be borne by the Seller, except in respect of the Recipient’s obligations listed in Sub-Clause 3.4 and those specified elsewhere in the Contract. 4 INTELLECTUAL PROPERTY RIGHTS Copyright 4.1 As between the Parties and unless otherwise stated in the Contract, each Party shall retain the copyright and other intellectual and industrial property rights in its design and other documents. Disclosure of Information 4.2 The Seller shall not be required to disclose, to the Buyer or the Recipient, any information which is described in the Contract as being confidential. The Seller shall disclose any other information which may reasonably be necessary for the Buyer to verify that the Goods comply with the Contract, or will so comply. Use of Documents 4.3 Supplied by the Seller The Seller shall be deemed (by signing the Agreement) to give to the Recipient a non-terminable transferable non-exclusive royalty-free licence to copy, use and communicate the documents which the Specification requires the Seller to supply, if any. Such documents shall not, without the Seller’s consent, be used, copied or communicated to a third party by (or on behalf of) the Buyer or Recipient, other than for the purposes of commissioning, operating, maintaining, altering, adjusting, repairing and dismantling the Goods. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause Indemnities 4.4 33 The Buyer shall indemnify and hold the Seller harmless against and from any claim alleging an infringement of any intellectual or industrial property right, where such alleged infringement is or was: (a) an unavoidable result of compliance with the Specification, or (b) a result of any Goods being used for a purpose other than that indicated by (or reasonably to be inferred from) the Contract. The Seller shall indemnify and hold the Buyer and Recipient harmless against and from any other such claim, where such alleged infringement is or was a result of the proper use of the Goods and not as in (a) or (b). An indemnifying Party may conduct negotiations and legal proceedings in respect of a claim, and may require the other Party to assist in contesting the claim, all at the risk and cost of the indemnifying Party. 5 DELIVERY AND TAKING OVER Time for Delivery 5.1 and Performance Each item of the Goods shall be delivered on or by its Time for Delivery in accordance with Sub-Clause 2.1. Each item of the Services shall be performed in accordance with the timing specified in the Contract. Late Delivery If the Seller fails to comply with Sub-Clause 5.1, the Seller’s only liability to the Buyer for such failure shall be to pay the amount stated in the Appendix for each day by which he fails to deliver or perform. 5.2 When determining such liability, the number of days by which the Seller failed to deliver or perform shall be reduced by the days (if any) of delay attributable to the Buyer, to the Recipient, or to any Force Majeure of which notice was given in accordance with Sub-Clause 7.1. Completion of Delivery 5.3 The Seller may notify the Buyer when he considers that all Goods (other than spare parts) have been delivered to the Site and all precommissioning Services have been performed. Taking-Over Notice 5.4 The Buyer shall notify the Seller and the Recipient when he considers that (a) all Goods have been delivered to the Site and all Services have been performed, or items thereof as specified in the Appendix, stating the date accordingly, or (b) although all spare parts have not yet been delivered and all Services have not yet been performed, all other Goods have been delivered to the Site ready for taking over by the Recipient and all pre-commissioning Services have been performed. Upon the issue of this notice, the Recipient shall take over all delivered Goods which have not been taken over previously. DANIDA – Procurement of Tarpaulins - Uganda Subject 34 Clause 6 CONTRACT PRICE AND PAYMENT The Contract Price 6.1 The Contract Price of each item of Goods and Services shall be the price stated in the Appendix for such item, subject to adjustments (if any) in accordance with the Contract and to adjustments for variations (if any) agreed between the Parties. Prices charged by the Seller for the Goods and Services shall not otherwise vary from the prices in the Appendix. Payment for Goods 6.2 The Seller shall be entitled to separate payment in respect of each item of Goods which complies with the Contract and for which a separate price is stated in the Appendix. Interim part payment shall not be due in respect of any part of any such item, until all of such parts of an item have been delivered. Payment for each item shall be made in instalments as stated in the Appendix. Payment for Services 6.3 The Seller shall be entitled to separate payment in respect of each item of Services which complies with the Contract, which has been completed, and for which a separate price is stated in the Appendix. Interim part payment shall not be due in respect of any part of any such item, until all of such parts of an item have been so completed. Payment for each item shall be made in instalments as stated in the Appendix. Advance Payment 6.4 If stated in the Appendix Sub-clause 6.2 or 6.3, the Buyer shall make an advance payment when the Seller delivers to the Buyer a guarantee in a form and from a third party approved by the Buyer.. The Seller undertakes to repay to the Buyer any amounts paid in excess of the final amount due within 30 days of receiving a request to do so. The Buyer shall be entitled interest at the rate stated in the Appendix Sub-clause 6.7 from this date and until the amount is paid. Terms of Payment 6.5 The Seller’s request for payment shall be made to the Buyer in writing, accompanied by: (a) invoices describing (as appropriate) the Goods delivered and Services performed, (b) a list of previous invoices, including reference numbers, dates, and amounts invoiced, and (c) such other documents as the Buyer may reasonably require. DANIDA – Procurement of Tarpaulins - Uganda Subject Clause Payment 6.6 35 Within sixty days of receiving a valid invoice and request for payment, the Buyer shall (except as stated in Sub-Clause 2.10, if applicable) pay the Seller in the currency stated in the Agreement, subject to any deduction to which the Buyer is entitled under the Contract. Payment shall not be deemed to indicate the Seller’s compliance with the Contract or any waiver by the Buyer of any non-compliance. If the Buyer disagrees with any portion of an invoice, he shall promptly give notice to the Seller of his reasons for disagreement and make payment for the agreed portions. Delayed Payment 6.7 Force Majeure The Seller shall be entitled to interest at the rate stated in the Appendix Sub-clause 6.7 from the date payment is due according to Sub-clause 6.6 and until the amount due is paid. 7 FORCE MAJEURE, DEFAULT AND TERMINATION 7.1 If a Party is or will be prevented from performing any of its obligations by Force Majeure, it shall notify the other Party immediately. Having given notice, the Party shall be excused performance of the obligations for so long as the Force Majeure prevents it from performing them, except that Force Majeure shall not apply to payment obligations. Termination after 7.2 Force Majeure If such notified Force Majeure prevents performance of substantially all of the Seller’s or Recipient’s obligations for a continuous period of 84 days, or for multiple periods which total 140 days, either Party may give notice of termination, which shall take effect 14 days after the giving of the notice. After such termination, the Buyer may purchase (upon such reasonable terms as he considers appropriate) Goods and Services which are similar to the Goods and Services undelivered or not performed. Termination by the Buyer 7.3 If the Seller fails to proceed expeditiously and without delay or is, despite a written complaint, in breach of the Contract, the Buyer may give notice referring to this Clause and stating the default. Unless the Seller takes all practicable steps to remedy the default within 14 days after receiving the Buyer’s notice, the Buyer may by a second notice given within a further 21 days terminate the Contract. If the Seller is declared insolvent under any applicable law, the Buyer may by notice terminate the Contract immediately. After any such termination, the Buyer may purchase (upon such reasonable terms as he considers appropriate) Goods and Services which are similar to the Goods and Services undelivered or not performed. The Seller shall be liable to the Buyer for any additional costs for such similar Goods and Services. Termination by the Seller 7.4 If the Buyer fails to pay in accordance with the Contract or is, despite a written complaint, in breach of the Contract, the Seller may give notice DANIDA – Procurement of Tarpaulins - Uganda Subject 36 Clause referring to this Clause and stating the default. Unless the Buyer takes all practicable steps to remedy the default within 21 days after receiving the Seller’s notice, the Seller may by a second notice given within a further 14 days terminate the Contract. After such termination, the Buyer shall be liable to the Seller for any cost or liability which in the circumstances was reasonably incurred by the Seller in the expectation of supplying the balance of the Goods. If any such cost is that of any materials that were intended to form part of the Goods, the Seller shall permit the Buyer to collect such materials during a reasonable period after making payment. Anti-Corruption 7.5 No offer, payment, consideration, or benefit of any kind, which constitutes illegal or corrupt practices, shall be made, either directly or indirectly by the Seller, as an inducement or reward in relation to the tendering, award or execution of the Contract. Any such practice will be grounds for the immediate termination of the Contract and for such additional actions (civil and/or criminal) as may be appropriate. At the discretion of the Buyer, a further consequence of any such practice can be the definite exclusion from the Buyer’s projects. Other Remedies 7.6 No such termination or other action under Clause 7 shall prejudice any other rights of either Party, under the Contract or otherwise. Limitation of Liability 7.7 Neither Party shall be liable to the other Party for loss of use, loss of production, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party. The total liability of the Seller to the Buyer shall not exceed the Contract Price stated in the Agreement. This Clause shall not limit liability in any case of fraud, deliberate default or reckless misconduct by the defaulting Party. 8 RESOLUTION OF DISPUTES Arbitration 8.1 Unless settled amicably, any dispute or difference which arises between the Seller and the Buyer out of or in connection with the Contract shall be finally settled by a single arbitrator under the rules of arbitration specified in the Appendix. In the absence of agreement, the arbitrator shall be designated by the appointing authority specified in the Appendix. Any hearing shall be held at the place specified in the Appendix and in the English language, unless the Parties agree otherwise. Litigation 8.2 If no arbitration rules are specified in the Appendix, Sub-Clause 8.1 shall not apply, and the Courts of the law stated in Sub-Clause 1.4 shall have full jurisdiction to resolve any dispute or difference between the Parties. DANIDA – Procurement of Tarpaulins - Uganda 37 TECHNICAL SPECIFICATIONS The Below specification represents the Buyer’s minimum requirementsBuyer’s minimum requirements Materials Material for the plain sheet: Material for the reinforced attachment points: Woven high-density polyethylene (HDPE) black fibers fabric laminated on both sides with white low-density polyethylene (LDPE) coating. Woven high-density polyethylene (HDPE) black fibers fabric laminated on both sides with white low-density polyethylene (LDPE) coating. Strength at state of origin and after UV exposure Tear strength in plain sheet at state of origin: Tensile strength in plain sheet at state of origin: UV resistance of the plain sheet, measured as remaining tensile strength after UV exposure: Tensile strength in the reinforcement bands at state of origin: UV resistance of the reinforcement bands measured as remaining tensile strength after UV exposure: Minimum 120 N under ISO 4674-1 2003, strip of 200x200mm, in plain sheet. Minimum 600 N and 15% to 25% elongation in warp and weft in plain sheet under ISO 1421-1. The tarpaulin tensile strength under ISO 1421-1 after 1500 hours UV under ASTM G154 (UVB 313 nm peak) must be: Minimum 80% of the original value of the actual product, AND not less than 475N. 500N To be tested in the plain sheet. Minimum 840 N inside the reinforcement bands as per ISO 1421-1, pulling lengthwise in a hole of 8mm with a hook of 8mm wire diameter, at 200mm from the end of the band. The reinforcement bands tensile strength under ISO 1421-1 after 1500 hours UV under ASTM G154 (UVB 313 nm peak) must be: Minimum 80% of the original value of the actual product, AND not less than 665N. Tenderer’s confirmation/data DANIDA – Procurement of Tarpaulins - Uganda Welding number and strength at state of origin: Puncture resistance: 675N To be tested inside the reinforcement bands as described above. Only one welding allowed, in the middle of the sheet, lengthwise. The tarpaulin tensile strength crossways at the place of the welding under ISO 1421-1 must be: Minimum 50% of the original value of the actual product, AND not less than 400N. ISO 4593-1993, Federal test method standard no. 101c 2031. There had to be performed puncture strength of 5 repetitions, as prescribed by the standard. The value minimum 180 N. Size, weight and colour Width: Length: Edge enhancement and reinforced grommets/eyelets: Weight, plain sheet only, excluding the bands weight: Weight, complete sheet including bands weight: Colour: White Coating colour definition: 4 m ± 1% net width. 6m minimum net length for the tarpaulins. Tarpaulins shall be provided with an edge enhancement / Overlay in all 4 sides. Width minimum 40 mm. Reinforced grommets/eyelets for fixing in each corner. 220g/m² -20/+ 30g under ISO 3801 (equivalent to 200g/m² minimum to 250g/m² maximum) Plain sheet specific weight plus 10% additional weight for the reinforcement bands under ISO 3801. Total weight from 205g/m² minimum and 271g/m² maximum Specific weight of the bands from 150g/ m² minimum and 200 g/m² maximum. White sun reflective on both sides of the sheet. Grey coating on the outside of the bands. Inner black fibers to ensure opacity. L*, a*, b* Coordinates under ISO 7724 38 DANIDA – Procurement of Tarpaulins - Uganda Minimum L: 82 "a" value between -1.7 and +1.5 "b" value between -4.5 and 0 Marking and packing Printing: Bale dimensions (+/-10%): Bale marking: Bale protection: Bale strapping: Continuous indelible printing on each tarpaulin of the manufacturer name, the month and year of production (Letters of 2.5cm high +/10%) and with the Buyer’s name and logo. Length x Width x Height: 600mm x 400mm x 180mm OR 800mm x 600mm x 150mm There must be 5 tarpaulins per bale. As per indication in contract. The bale must be wrapped with a piece of similar material as the one of the tarpaulins. The wrapping must be properly folded, closely tight to the bale content, making a well-shaped cubic bale. Inside the bales, the tarpaulins are not individually wrapped. The bale must be strapped with 2 heat-sealed plastic straps for the length and 2 for the cross. 39 DANIDA – Procurement of Tarpaulins - Uganda 40 Drawing of tarpaulin: Drawing not to scale. Inspection and tests: The Seller shall provide pre- and post-shipment inspection and test certificates as indicated in the Appendix to the Agreement. The scope of inspections and test shall as minimum be as follows, reference made to the above specifications: 1. Test of tear strength, plain sheet to ISO 4674-1 2. Test of tensile strength before and after UV test to ISO 1421-1 3. Test of UV resistance 1.500 hours test to ISO 1421-1/ASTM G154 (for pre-shipment tests the result of this test may be communicated after shipment) 4. Control of with and length and of weight 5. Test of colour to ISO 7724, L*, a*, b* first sample and composite materials 6. Test of colour to ISO 7724, L*, a*, b* second and third sample DANIDA – Procurement of Tarpaulins - Uganda 41 FORM OF ADVANCE PAYMENT SECURITY (Bank or Insurance Company Guarantee) To: Ministry of Foreign Affairs Danida Business Contracts Asiatisk Plads 2 DK-1448 Copenhagen K Denmark Subject: Contract Agreement: (Name of assignment, name of Program/Component/Project) (Agreement number and reference number) We, (name of Guarantor) whose registered office is at (address of Guarantor) have been informed that: 1. (Name and address of the Seller) (hereinafter called the "Seller") has entered into an Agreement dated (Date) with the (name of Buyer) (hereinafter called the "Buyer") for the supply of certain Goods, namely (Brief description of goods) (hereinafter called the "Goods"). 2. It has been stipulated in the Agreement that the Seller shall be paid by the Buyer advance payments for the supply of Goods for the amounts stated in the Agreement (hereinafter called the "Advance Payments"), subject to the provision by the Seller of an Advance Payments Security in the form of a Guarantee by a recognised bank or insurance company. At the request of the Seller, we hereby issue our unconditional and irrevocable Guarantee in favour of the Buyer, for an amount of (Amount in words and figures) Danish Kroner, as security for the obligation of the Seller to refund Advance Payments to the Buyer, and we hereby undertake to pay the Buyer, upon receipt of its first written demand, without the Buyer having to substantiate its demand or to prove or to show grounds or reasons therefore, provided that this demand shall be supported by a written statement indicating (i) that the balance outstanding of the Advance Payments has become due and payable by the Seller to the Buyer and (ii) the reason for the said balance becoming due by anticipation. We hereby waive the necessity of the Buyer demanding the said amount from the Seller before presenting us with the demand. We further agree that no extension of time limits or other modification of the terms of the Agreement or of the supply of Goods to be performed thereunder, which may be agreed upon between the Buyer and the Seller, shall in any way release us from any liability under this Guarantee. This Guarantee shall be reduced in connection with the invoicing for supply of Goods by the total of the amounts of the Advance Payments repaid by the Seller in accordance with the Agreement, provided that such reduction shall take place upon written request of the Seller to DANIDA – Procurement of Tarpaulins - Uganda 42 the Buyer, and subsequent confirmation to us of the amount of the reduction by the Buyer. This Guarantee shall remain valid and in full force and effect from the date of receipt of the Seller of the Advance Payments until the Buyer receives full repayment thereof from the Seller. This Guarantee shall be governed by the laws of Denmark, with place of venue: Copenhagen. Upon expiry, please return this document to us. Dated this ____________________________ THE GUARANTOR ______________________ Signature ____________________________ In the capacity of