Five-year supply, maintenance and support of backup storage through SITA rfb2003

Contract framework

• The National Treasury General Conditions of Contract (July 2010) apply to all bids, contracts and orders, including professional and functional services, but not immovable property.
• Special Conditions of Contract (SCC) issued with a specific bid supplement the GCC; where they conflict, the SCC prevails.
• The GCC may not be amended.

Performance security

• The successful bidder must lodge the performance security stated in the SCC within 30 days of receiving the award notice.
• Acceptable forms: a bank guarantee or irrevocable letter of credit from a reputable bank, or a cashier's or certified cheque.
• The security is held as compensation for loss caused by the supplier's failure to perform and is released within 30 days after completion of all obligations, including warranty work, unless the SCC provides otherwise.

Delivery, inspection and warranty

• Goods must meet the standards in the bid documents and specifications.
• Pre-bid testing is at the bidder's cost; premises must be open for inspection at reasonable hours where inspection is a bid condition.
• Rejected supplies are held, removed and replaced at the supplier's cost and risk; the purchaser may buy substitute supplies at the supplier's expense.
• Goods must be new, unused and current models, with a warranty of 12 months from delivery and acceptance, or 18 months from shipment, whichever ends first, unless the SCC states otherwise.
• Defects must be remedied within the period set in the SCC, failing which the purchaser may act at the supplier's risk and cost.

Payment and prices

• Invoices must be accompanied by the delivery note and any other required documents.
• Payment is due within 30 days of invoice or claim, in Rand unless the SCC states otherwise.
• Bid prices are fixed for the contract except for adjustments authorised in the SCC or in a bid validity extension.

Variations, assignment and subcontracting

• Contract changes require a written amendment signed by both parties.
• The supplier may not assign obligations without the purchaser's prior written consent.
• Subcontracts must be disclosed in writing; disclosure does not reduce the supplier's liability.

Delays and penalties

• Delays must be reported in writing with the cause and expected duration; the purchaser may extend time with or without penalties.
• Late delivery or non-performance attracts a penalty calculated on the delayed value at the prime interest rate for each day of delay, and may lead to termination.
• The purchaser may buy similar goods elsewhere on default and claim the excess cost and damages.

Termination and restriction

• The purchaser may terminate for failure to deliver, failure to meet any obligation, or corrupt or fraudulent conduct.
• Termination may be accompanied by a restriction on doing business with the public sector for up to 10 years.
• A supplier facing restriction has 14 days to give reasons why it should not be imposed.
• Restriction details are reported to National Treasury within 5 working days and loaded onto the central supplier database.
• A court conviction under the Prevention and Combating of Corrupt Activities Act may lead to listing on the Register for Tender Defaulters for 5 to 10 years.

Force majeure, insolvency and disputes

• A supplier is not liable for delay or default caused by force majeure, provided it notifies the purchaser in writing and continues performance as far as reasonably possible.
• The purchaser may terminate without compensation if the supplier becomes bankrupt or insolvent.
• Disputes must first be negotiated; if unresolved after 30 days, either party may give notice to mediate, and failing mediation the dispute goes to a South African court.
• Parties continue performing and the purchaser continues paying during dispute resolution.

Liability, law and notices

• The supplier is not liable for indirect or consequential loss, and its total liability is capped at the contract price, except for criminal negligence, wilful misconduct, patent infringement and the cost of repairing or replacing defective equipment.
• The contract is in English and governed by South African law unless the SCC states otherwise.
• Written notices are served by registered or certified mail to the bidder's stated address.

Taxes and restrictive practices

• A local supplier bears all taxes, duties and licence fees up to delivery; a foreign supplier bears those imposed outside South Africa.
• No contract may be awarded to a bidder whose tax matters are not in order; an original SARS tax clearance certificate is required before award.
• Collusive bidding is prohibited under the Competition Act; the purchaser may refer suspected bid rigging to the Competition Commission, invalidate the bid, terminate the contract, restrict the bidder for up to 10 years and claim damages.