Appointment of a Panel of Legal Practitioners - Limpopo -

Returnable Documents:

2.1. The Limpopo Department of Health (“The Department”) is mandated and committed to providing quality health care services to all its people, ensuring a long and healthy life for all by providing and promoting comprehensive, accessible and affordable quality health care services to improve the life expectancy of the people of Limpopo. 2.2. While discharging this mandate, adverse events sometimes do occur; which events lead to litigation against the Department and these cases contribute to the growing contingent liability. In other instances, the Department is owed sums of money and litigation process becomes the only route to take. 2.3. To achieve this, the Department aims to establish a panel of legal practitioners to provide legal services in various categories or areas of law including but not limited to civil & Criminal litigation, Administrative & Constitutional law, Labour & Employment law, Environmental law, Government Procurement Law, Debt collection, Advisory services and drafting of commercial contracts. 2.4. The Department requires the services of qualified Legal Practitioners to render legal services in the fields as stated below, to be appointed for a period of Thirty-Six (36) months. Civil and Criminal Litigation Medical Malpractice/Negligence Labour Litigation and Employment Law Constitutional & Administrative Law Commercial and Contract Law Debt Collection The bidder is required to indicate areas of specialization by ticking on the table above: 3. OBJECTIVE 3.1. The Department is seized with numerous legal matters, including actions instituted against it, claims for monies owed to it, and proceedings wherein it is required to protect its legal rights, reputation, and institutional interests. 3.2. There is therefore a need to defend and institute actions and applications in various courts. The Department institutes and receives court processes from various courts in the country. 3.3. The Department therefore wishes to invite suitably qualified Legal Practitioners to be listed on a panel to provide services for the above listed areas of law. 3.4. Appointment to the Panel will be based on the experience and capacity of the practitioner(s) and/or their experience relating to the above listed areas of law. 3.5. The appointed Legal Practitioner(s) will be used on an “as and when” required basis. 4. LEGISLATIVE AND REGULATORY FRAMEWORK 4.1. This bid and all contracts emanating herefrom will be subject to General Conditions of Contract (GCC) issued in accordance with Treasury Regulation 16A published in terms of the Public Finance Management Act, 1999 (Act ) (PFMA) as well as the Preferential Procurement Policy Framework Act, 2000 (PPPFA) with its associated Regulations. 4.2. The Special Conditions of Contract (SCC) supplement the GCC. However, when the SCC is in conflict with the GCC, the provisions of the SCC will prevail. 4.3. This bid is subject to, but is not limited to the following: 4.3.1. Constitution of the Republic of South Africa (Act ) 4.3.2. Preferential Procurement Policy Framework Act, 2000 (Act No. ) and its associated Regulations. 4.3.3. Legal Practice Act, 2014 (Act No. ). 4.3.4. State Liability Amendment Act, 2011 (Act No. ). 5. DEFINITIONS 5.1 The following words bear the meaning set out below and cognate expressions bear a like meaning: 5.1.1 Day / s shall mean working day / s, unless specifically stated to the contrary. 5.1.2 Department refers to the Limpopo Department of Health. 5.1.3 HOD refers to the Head of Department of the Limpopo Department of Health. 5.1.4 Lead Practitioner means the Legal Practitioner at the Firm or Legal Practice primarily responsible for the provision of services to the Department and shall be a person who has been admitted to appear in the High Court of South Africa for at least 5 (five) years prior to closing date of this bid. 5.1.5 Official Responsible refers to the Director: Legal Services or duly authorized Legal Officer. 5.1.6 Panel of Legal Practitioners means the firms of Legal Practitioners or Joint Ventures entered into by Legal Practitioners appointed to provide the services to the Department. 5.1.7 Service Level Agreement means the Service Level Agreement to be signed by the successful bidders and the Department, together with all annexures hereto, as well as any directives issued by the Department from time to time. 6 SCOPE OF WORK (KEY DELIVERABLES) 6.1 The Legal Practitioner’s scope of work may include but is not limited to: 6.1.1 Briefing counsel, when required. 6.1.2 Drafting or settling pleadings. 6.1.3 Attending all consultations (with Counsel when required). 6.1.4 Handling trial of the matter before the Magistrates’ Court, Labour Court or High Court. 6.1.5 Enforcement of judgements/collection. 6.2 Legal Practitioners will be required to render services in all matters relating to, amongst others, the following areas of law: 6.2.1 Civil and Criminal Litigation; 6.2.2 Medical Malpractice/Negligence; 6.2.3 Labour Litigation and Employment Law;; 6.2.4 Constitutional and Administrative Law; 6.2.5 Commercial and Contract Law; and 6.2.6 Debt Collection. 6.3 Litigation (Civil, Criminal, Labour and Personal Injury claims) 6.3.1 Legal Practitioners will attend to litigation on behalf of the Department, either in the court of law or other labour law tribunals such as arbitrations and CCMA. Legal Practitioners are required to have in-depth practical knowledge of civil, and labour litigation procedures through arbitration or in the Superior Courts and Magistrates' Courts. 6.3.2 The entire spectrum of personal injury claims, especially medical malpractice/negligence and the related regulatory environment. 6.3.3 The entire civil procedure in the lower and superior courts, including appearance in the High Court. 6.3.4 The entire spectrum of criminal law and procedure as Legal Practitioners may be required to represent employees who are criminally charged during the course and scope of their employment. 6.3.5 Representation at labour tribunals such as the CCMA, Bargaining Council, Labour Court and Labour Appeal Court. 6.3.6 Ability to investigate alleged misconduct of employees of the Department. 6.3.7 Ability to initiate and chair disciplinary hearings; even those involving members of senior management. 6.4 Constitutional and Administrative Law 6.4.1 Advice on administrative decisions often taken by management in the discharge of their administrative duties. 6.4.2 Advice on the constitutionality of management decisions and actions. 6.4.3 Any other related activity in the constitutional and administrative law sector as and when required to do so. 6.5 Commercial Contracts 6.5.1 Practical knowledge is required of all spheres of commercial contracts including but not limited to knowledge and application of the standard forms of contract, including GCC and JBCC. 6.5.2 Over and above, the above-mentioned standard forms of contract, Legal Practitioners may be required to attend to the interpretation of agreements more specifically but not limited to Service Level Agreements (SLA), Memorandum of Agreements (MOA) and Memorandum of Understandings (MOU). 6.6 Legal Advisory Services 6.6.1 Drafting of opinions and/or certifications of SLA’s , MOA’s and MOU’s. 6.6.2 Attendance at meetings with various stakeholders where opinions may be sought. 6.6.3 Advice and assist in process and compliance with the provisions of the labour law prescripts and procedures. 6.6.4 Negotiation and settlement of labour disputes whether with individual employees or the bargaining unit represented by a union. 6.6.5 Advice on procedural and substantive issues relating to disciplinary hearings conducted and adjudication at these tribunals. 6.6.6 Drafting and review of legislation applicable in the Limpopo province. 7 SPECIAL CONDITIONS OF CONTRACT 7.1 Successful Bidders will be listed on a panel to provide legal services to the Department for a period of Thirty-Six (36) Months and must enter into a Service Level Agreement (SLA) with the Department. 7.2 Performance and quality of the work will be a measure of retention in the panel. 7.3 The Department reserves the right to remove a bidder from the panel if that Legal Practitioner does not meet the performance standards as per the Service Level Agreement. 7.4 The Department may, upon a breach of the Legal Practice Council Code of Conduct or any applicable professional rules, take corrective action up to and including removal from the panel, after giving written notice and affording the Legal Practitioner a reasonable opportunity to make representations 7.5 Legal Practitioners awarded the bid to do any work may not cede, assign or sub-contract any part thereof to any person unless with the written consent of the Department or as may be required by applicable laws, for instance, in cases where correspondent Legal Practitioners may be necessary. 7.6 Fronting is prohibited. Any bidder found to have fronted shall automatically be disqualified. For contracts already awarded the contract shall be terminated and any costs borne shall be for the account of the defaulting Bidder. These costs shall include the costs of appointing another Bidder. 7.7 Fees shall be charged in accordance with the Department’s Service Level Agreement, Tariff of Fees and Milestones. Fees for service rendered shall remain fixed for the first year of the contract and thereafter be adjusted in line with CPI. 7.8 All instruction(s) to the Legal Practitioners shall be given in writing by the Director: Legal Services or the duly authorised official. Charging of collapsed fee shall only be permitted with approval of the Director: Legal Services or the duly authorised official. 7.9 The Department shall not be required to pay any deposit for services to be rendered. 7.10 Appointment to the panel does not guarantee that Legal Practitioners will receive instructions as work will be allocated on an “as and when required” basis. 7.11 Work will be allocated to Legal Practitioners using rotational system based on the nature of the case, experience of the Legal Practitioner and field of specialisation. 7.12 Briefing of Counsel may only be done in consultation with the Department's responsible officials and consideration of their applicable rates. (Only Counsel who are members of a recognised bar can be appointed to represent the Department). 7.13 The Department reserves the right to subject Legal Practitioners’ invoices for assessment and review by the Legal Practice Council. All payment claims are to be certified by the officials responsible and be approved by the HOD before payment can be effected. 7.14 Bidders are to note that the Department will monitor and evaluate the services rendered through its responsible officials. 7.15 The Department will carry out site inspections, service evaluations and explanatory meetings in order to verify the nature and quality of services offered by the bidder. 7.16 The Department shall be entitled, in its discretion, to remove any Legal Practitioner from the panel before the expiry of the said Thirty-Six (36) months period by written notice and recall all the files in the possession of the said Legal Practitioner. 7.17 In the case of a new Legal Practice or conversion, individual Legal Practitioner who will be dealing with the Department matters shall have at least five years’ post admission experience in the relevant field of law. 7.18 Legal Practitioners who are litigating against the Department, and are awarded the contract, shall within 7 days after award, terminate their mandate with their clients to ensure that they act in the best interests of the Department. 7.19 Legal practitioners have a duty to disclose to the Department the identity or details of the clients or Plaintiffs they previously represented, where such mandates have been terminated consequent to their appointment to the panel. Should a Legal Practitioner be allocated a matter involving a Plaintiff they had previously represented, the Legal Practitioner must immediately notify the Department in writing and formally decline or withdraw from the instruction. 7.20 Legal Practitioners must disclose to the Department any conflict of interest that may have an impact on them providing any of the legal services referred to above, irrespective of when it may arise. 7.21 The Legal Practitioners must, upon award, furnish an insurance policy in respect of professional liability issued by the Fidelity Fund. This cover shall be maintained under the policy for the duration of the contract period with the Department. 7.22 The Legal Practitioners shall at all times maintain an operational IT & telephony capability as required by the Department and shall inform the Department within 24 hours of any breakdown or other issue that may impact communication between the firm and the Department. 7.23 Intellectual property rights: 7.23.1 All copyright and intellectual property rights that may result as consequences of the work to be performed shall become the property of the Department. 7.23.2 Legal Practitioners must hand over all documents and information in any format, including copies thereof, that it received from the Department or that it had access to during the assignment immediately after completion of the cases to the Department. 7.23.3 Legal Practitioners shall deliver to the Department, on completion of a case, any security devices, passwords or protective mechanisms to the soft versions of documents that were written and the Department will have the right to amend and change these without obligation whatsoever to the Legal Practitioners upon completion of the assignment. 7.24 Skills transfer 7.24.1 Legal Practitioners will also be required to ensure transfer of skills to in-house legal officers or professionals in the employ of the Department and should demonstrate how this shall be done. The demonstration will serve as an objective criteria. 7.24.2 The successful Legal Practitioner undertakes to provide the Department with continuous Legal Education and Training, on reasonable notice from the Department, which shall include but not be limited to the provision of seminars, lectures, newsletters, workshops and regular legislative, case law and other updates. The Legal Practitioner shall provide such continuous Legal Education and Training at no additional cost to the Department. 7.24.3 The Department reserves the right, under exceptional circumstances, to appoint practitioners outside the panel. 8 KEY ASPECTS OF THE BID PROPOSAL Bidders must take note of the following fundamental aspects before submission of their bid proposals: 8.1 The successful bidder will be bound by Government Legislative Framework i.e. the General Conditions of Contract and the Special Conditions of Contract (SCC), which will form part of the signed contract with the successful bidder. However, LDoH reserves the right to include or waive any condition in the signed contract. 8.2 The signed contract, which is inclusive of the GCC, SCC and Technical Specification shall be signed within seven (7) days after the acceptance of award of the bid. SLA which is regarded as a performance agreement by the Department signed off 30 days after signing of the contract with the Accounting Officer or his/her delegate. 8.3 The Department reserves the right to – 7.3.1 Negotiate the conditions of this Bid, or 7.3.2 Automatically disqualify a bidder for not accepting these conditions. 8.4 If the bidder qualifies the proposal with own conditions and does not specifically withdraw such own conditions when requested upon to do so; the Department may disqualify the bid. 8.5 Bidders must submit their bids on or before the stipulated closing date and time. Late bids will not be accepted. To evaluate and adjudicate the bid effectively, it is imperative that bidders submit responsive bids. 8.6 Each bidder must attach all applicable documents in support of its bid in accordance with the requirements set out in this bid as well as any other relevant materials, photographs and/or attachments. 8.7 The department reserves the right to verify any information supplied by the bidder and should the information be found to be false or incorrect, the department shall disqualify the bid and may further exercise any of the remedies available to it. 8.8 Each bid, once submitted, constitutes a binding and irrevocable offer to provide the services on the terms set out in the bid, which offer cannot be amended after its date of submission except for arithmetic errors. 9 BID AWARD AND CONTRACT CONDITIONS 9.1 Bidders must submit their bid in line with the bid specification; failure to comply which shall render the bid invalid. 9.2 Bidders shall be notified about the decision of the Department by means of publication in the Provincial Tender Bulletin, Departmental website, and E-tender portal. 10 THE BID AWARD AND ALLOCATION STRATEGY 10.1 Subject to Section 2(1)(f) of the Preferential Procurement Policy Act, 200 (Act , a maximum of ten (10) highest scoring bidders for each category, who accepted a standardized all-inclusive hourly rate, will be appointed onto the following caterogies: 10.1.1 Civil and Criminal Litigation; 10.1.2 Medical Malpractice/Negligence; 10.1.3 Labour Litigation and Employment Law; 10.1.4 Constitutional and Administrative Law; 10.1.5 Commercial and Contract Law; and 10.1.6 Debt Collection. 10.2 Work will be allocated on a rotational basis, starting with the bidder who scored the highest total point for price and preference, to the lowest scoring bidder on each category. 10.3 The Department reserves the right not to establish or more of the above categories. 10.4 The department shall conduct market research to determine if bidders did not overquote/underquote their price offers. 10.5 Bidders who are perceived to have underquoted their price offers in line with the market prices may be disqualified subject to price justification. 10.6 Overcharged Prices shall be subjected to price negotiations, or the department may table the offer to overcharging bidders as a process to kickstart the negotiation process. 10.7 In case where any prospective bidder who has been allocated the category in terms of above clauses reject the award, the allocation shall be re-allocated to the remaining acceptable bidders who were evaluated on price and specific goals until the list is exhausted. 11 CONTRACT MANAGEMENT 11.1 Successful bidder(s) must report to contract management unit immediately when unforeseen circumstances will adversely affect the execution of the contract. 11.2 Full particulars of such circumstances, as well as the period of delay, must be furnished. 11.3 The management of the contract shall be the sole responsibility of the Supply Chain Management Unit. 11.4 Bidders are to take note that the Department shall endeavor to complete the process of evaluation and award in a period of 365 days, therefore their prices should consider inflationary fluctuations.

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