|
RULES OF
TENDERING GOVERNING USE OF
PowerGen's E-TENDERS
SYSTEM
1.
Introduction
(a) These
Rules of Tendering between The Power Generation Company of Trinidad and Tobago
Limited ("PowerGen") and the Vendor governs the access and use of the eTenders System
("the System") by the Vendor to respond to an invitation from PowerGen to
participate in its procurement process.
(b) The
procurement process may include
an
Invitation to Tender ("ITT"), a Request for Proposal ("RFP") or a Request for
Quotation ("RFQ").
(c) The System is operated by
PowerGen.
These Rules of
Tendering applies to the Vendor's and any Assigned Vendor Users' access to and
use of the System. The Vendor acknowledges that by an Assigned Vendor User
accessing the System using the user ID and password provided by PowerGen, the Vendor
and Assigned Vendor Users agree to be bound by these Rules of Tendering.
(d) The
Vendor shall only use the System to respond to an invitation to
participate in PowerGen's procurement process in
accordance with these Rules of Tendering and any specific rules expressed
and presented in the System.
2.
Access
(a) PowerGen grants to the Vendor and Assigned Vendor Users access to the
System for the purpose of responding to any invitation to participate in its
procurement
process, subject to these Rules of Tendering.
(b) PowerGen may immediately deny access to the System by the Vendor and/or
one or more
Assigned Vendor Users by giving notice in writing to the Vendor if any of the
following events occur:
(i)
the Vendor commits a material breach of any of its obligations under these Rules
of Tendering;
(ii)
the Vendor
fails to remedy, or persists in, any breach of any of its
obligations under these Rules of Tendering
after having been notified in writing by PowerGen to remedy or desist from
such breach within a period of ten (10) Working Days;
(iii)
the Vendor
has been notified by PowerGen in writing that it has been suspended, de-listed or
otherwise rendered inactive from PowerGen's approved list of pre-qualified
contractors.
(c)
Without prejudice to any of
PowerGen's other
rights, PowerGen reserves the
right to suspend access to the System for technical or legal reasons.
3.
Registration
(a) To be
granted access to the System, the Vendor must register with PowerGen an assigned
person which the Vendor wishes to be the
Assigned Vendor User to act on its behalf for the purpose of utilizing the
System, by providing the required registration data requested by PowerGen.
(b) The Assigned Vendor User's access will be activated by
PowerGen following a
check and verification of the
registration data.
(c) Upon registration of the Vendor and/or Assigned Vendor User,
PowerGen
shall assign a user ID and password together with a Digital Certificate to the
Vendor with a designated Digital Signature assigned to the Assigned Vendor User,
which Digital Signature shall be affixed to such documents as shall be required
by PowerGen when using the System.
(d)
User ID and password are strictly personal to the Assigned Vendor User and
non-transferable. The Vendor shall ensure that its Assigned Vendor User does not
divulge or disclose his/her user ID or password to third parties. In the event
that the Vendor or the Assigned Vendor User becomes aware that a user ID and/or
password may have been divulged, disclosed
or discovered by any third Party, they shall immediately notify PowerGen HelpDesk at
e-mail
helpdesk@digitalbusiness.com and telephone no.
636-4680/4662 ext. 4357 (help) during the hours of 8.00 am to 4.30 pm
(Trinidad and Tobago time) on Mondays to Fridays, or such other designated point
of contact as may be assigned by PowerGen from time to time.
(e) The
Vendor must immediately notify PowerGen HelpDesk (to be confirmed by written
communication to PowerGen) in the event that the
Assigned Vendor User leaves its employment or no longer requires access to the
System. In such case, the Vendor must immediately inform PowerGen HelpDesk of
the new assigned vendor user to act on its behalf for the purpose of utilizing
the System and shall provide additional registration data as may be required by
PowerGen. PowerGen retains the right to deactivate the
Assigned Vendor User's user Id and password if there has been no access
for a period of ninety (90) days.
4.
Invitation to Participate
(a)
PowerGen
shall send through the System, an invitation to participate (by way of an ITT,
RFP or RFQ as the case may be) in a specific
procurement process to appropriate Vendors that have registered and been
activated on the System as described in these Rules of Tendering. Detailed data
and information relating to a specific procurement process shall only be made
available to pre-qualified Vendors.
(b)
PowerGen
shall configure the System as appropriate for each procurement process. The
selected configuration settings for a procurement process shall be displayed on
the System for pre-qualified Vendors to view. The Vendor acknowledges that by
one of its Assigned Vendor Users participating in a procurement process on the
System, the Vendor agrees to be bound by these configuration settings.
(c) All data, information and material issued through the System in
connection with this procurement process shall remain the property of PowerGen and
shall be used only for the purpose of its
procurement
process.
5.
Vendor's Obligations
(a) The Vendor shall ensure that all its Assigned Vendor Users comply with
these Rules of Tendering.
(b) The Vendor shall use all reasonable care and skill in performing its
obligations
under these Rules of Tendering.
(c) The Vendor shall provide its Assigned Vendor Users with the adequate
equipment and software
needed to access
and use the System.
(d) The
Vendor shall provide adequate software to ensure the security of the System and
use best endeavours to protect the System from viruses when being
accessed and used by its Assigned Vendor Users.
(e) The
Vendor shall use the System for lawful and proper purposes only and
shall, in any event, comply with all
relevant laws and regulations within Trinidad and Tobago.
(f) In
particular, the Vendor agrees that it will not:
(i) manipulate any information supplied on the System in a manner that
would lead to inaccurate, misleading or discriminating presentation of
information being
displayed;
(ii)
post, transmit or disseminate any information on or via the System which is or
may be
harmful, obscene, defamatory or otherwise illegal, including but not limited to
computer viruses, Trojans (a program used to capture unsuspecting people's log
on and passwords) and worms;
(iii)
use the System in a manner which causes or may cause an infringement of the
rights of
others; and
(iv)
use any
software, routine or device to interfere or attempt to interfere
electronically or manually with the
operation or functionality of the System, including uploading or making
available files containing corrupt data or viruses via whatever means.
(g) The Vendor agrees that its Assigned Vendor Users shall act as
authorised agent for
and on behalf of
the Vendor in submitting any response to any invitation to participate in a
procurement process on the System.
(h) The
Vendor shall be responsible for any unauthorised, false or fraudulent
response to any invitation to participate in
a procurement that is submitted using one of its Assigned Vendor Users'
user id and password.
(i) The
Vendor represents and warrants that:
(i) all information it provides will be accurate and complete and shall
accurately
represent the Vendor's capabilities;
(ii)
it shall have the right, through actual ownership or otherwise, to provide any
product or service that is the subject of any response made by it to any
invitation to
participate in a
procurement;
(iii)
it has the
ability to sell the goods/services/works at the prices offered in any
response made by it to any invitation to
participate in a procurement process and according to the relevant criteria
specified by PowerGen in the relevant invitation to participate in a
procurement process.
6.
General Provisions for the Submission of Responses
(a) Vendors are expected to examine all the file attachments published in
the
System,
which indicate what information must be provided. Vendors must provide all of
the items of information requested in the procurement process. Incomplete
submission of the information requested including the submission of information
in file attachments containing viruses that
have been advised by the System shall entitle PowerGen to invalidate or reject
the response to the procurement process.
(b) All responses to any invitation to participate in a procurement
process must
be submitted
through the System by the closing date and time as specified in the particular
procurement process.
(c) Responses may be submitted through the System at any time up to the
closing
date and time as specified on the System for the particular procurement process
but Vendors are advised to desist from submitting voluminous and extensive
responses too close to the closing date and time in the event of a system
malfunction on the Vendor's part and/or the Vendor's server.
(d)
Vendors are advised that no single document larger than 10 MB should be uploaded
into the System at any given time.
(e) The
Vendor agrees to keep any responses valid for a period of one hundred and twenty
(120) days from the closing date and time for the submission of responses,
unless any other period is specified in the terms and conditions of the
particular procurement process.
(f) Responses will be opened by
PowerGen in accordance with the opening
procedures
specified on the System for each procurement process.
(g) Should
the Vendor when submitting a bid experience any technical difficulties within
the System which are within the control of PowerGen, Vendors are advised to
immediately communicate with PowerGen's HelpDesk.
7.
Amendments to a procurement process
(a)
The Vendor acknowledges that:
(i) PowerGen
reserves the right to:
(a) suspend and re-open or cancel a procurement process or extend the
closing
date and time; and/or
(b)
vary or amend the details of a procurement process,
at any time prior to the closing date and time for receipt of response by
publication of a notification through the System and without incurring any
liability whatsoever; and
(b) in the event of a suspension and subsequent re-opening of a
procurement exercise, the procurement process will resume on the basis of the
last response
recorded by
the Vendor through the System.
8.
Notification of Award
Written Notification of Contract Award or bid rejection will be made by
PowerGen to the Vendor
subsequent to the closing date and time and following
evaluation by PowerGen of the Vendor's response
to the procurement process. Such Written Notification of Contract Award
will be in accordance with Clause 16 hereunder. No other notification of
contract award or otherwise sent by the System shall in any way represent any
obligation towards the Vendor on the part of PowerGen.
9.
Intellectual
Property Rights
(a)
All Intellectual Property Rights in the
System are owned by, or are under licence to, PowerGen.
(b) The Vendor and its Assigned Vendor Users shall have no Intellectual
Property Rights in the System, nor shall it have any rights to copy, adapt,
modify or interfere with the
System.
(c)
The System may include PowerGen's logo and/or trade mark. The Vendor
acknowledges that it may not copy, use, or
mask PowerGen's logo and/or trade marks which appear on the System without the
prior consent of the PowerGen.
10.
Limitation of
Liability
(a)
In no event shall PowerGen be liable to the
Vendor for any direct loss, indirect loss or damages incurred by the
Vendor arising from the use of the System caused by:
(i) An event of Force Majeure that affects the availability
and/or performance of
the System;
(ii)
Incorrect use by
Assigned Vendor Users of the System;
Connectivity
failures in respect of the equipment used by the Assigned Vendor Users;
(iii) Breakdown of the System for a period of time not exceeding 30
Working
Days.
(b)
The Vendor acknowledges and accepts that:
(i)
PowerGen reserves the right to interrupt and/or suspend the availability
of the
System and/or revoke access at any time by notice to the Vendor without
incurring any liability;
(ii)
PowerGen provides the System on an ‘as is' basis and ‘as available' basis
without any
warranty of any kind;
(iii) PowerGen does not accept any liability for any information or links on
the
System
that may refer Assigned Vendor Users to external sources outside of PowerGen's
reasonable control.
(c)
The Vendor will indemnify PowerGen in full against all claims, demands,
actions or proceedings (including legal and
other professional advisers' fees) made by any third Party arising out of
or in relation to the Vendor's breach of its obligations under these Rules of
Tendering.
11.
Disclaimer
PowerGen, its servants, agents, directors and officers:
(a)
do not
accept responsibility expressed or implied for the accuracy, suitability,
usefulness, and completeness or otherwise of the information and data contained
on the System;
(b)
do not
warrant that the information and data contained on the System or sites linked to
it are free from infection by computer viruses or that it does not infringe the
intellectual property rights of any person anywhere in the world;
(c)
do not
authorise the infringement of any intellectual property rights contained in
material in other sites linked to the System;
(d)
do not
accept responsibility for any errors in transmission or downloading
documentation from the System;
(e)
do not
accept responsibility for non-adherence by the Vendor to the stipulated closing
dates and times expressed in tender documents or otherwise amended by the
relevant contracting authority;
(f)
do not
accept responsibility for the accuracy, suitability, usefulness, and
completeness or otherwise for material contained on other websites linked to the
System;
(g)
reserve the
right to amend this disclaimer as and when required without notice by updating
this posting;
(h)
shall not
be liable for any delays, interruptions, errors or failures in the provision of
the services not within the reasonable control of PowerGen and its agents including
Force Majeure, failure or fluctuation of electrical power, industrial action,
industrial disputes, breakdown or other malfunctions of the Vendor technical
equipment, including software.
(i)
shall not
be liable, either in contract or in tort, for any direct, incidental,
consequential, indirect or punitive damages or any other losses, costs, expenses
or damage of any kind claimed to have arisen as a result of using the System or
as a result of the non-availability, non-functioning or malfunctioning of the
services or otherwise in connection therewith.
12.
Confidentiality
(a) Each
Party shall:-
(i)
treat all Confidential Information
as Confidential and safeguard it accordingly;
(ii)
not disclose any
Confidential Information to any third Party without the prior
written consent of the other Party, except
to such persons and to such extent as may be necessary for the
performance of these Rules of Tendering: and
(iii) not use any
Confidential Information otherwise than for the purposes of these Rules of
Tendering.
(b)
The Vendor shall take all necessary precautions to ensure that all Confidential
Information obtained from PowerGen under or in connection the System is:
(i) given only to such employee, consultant, sub-contractor,
professional advisor or agent engaged to advise it in connection with the
specific procurement process and these Rules of Tendering as is strictly
necessary for the performance of its obligations hereunder and then only to the
extent necessary for each employee,
consultant, sub-contractor, professional advisor or agent's activities in
the performance of such obligations hereunder;
(ii) is treated as confidential and not disclosed (without prior written
approval of PowerGen) or
used by any
employee, consultant, sub-contractor, professional advisor or agent otherwise
than for the purposes of such obligations hereunder.
(c)
The provisions of
this Clause 12 shall not apply to any information:-
(i) which is or becomes public knowledge (otherwise than by
breach of the
obligations of
confidentiality under these Rules of Tendering);
(ii)
which is in the possession of the Party concerned, without restriction as to its
disclosure,
before receiving it from the disclosing Party;
(iii)
which is received from a third Party who lawfully acquired it and who is under
no
obligation restricting its disclosure; or
(iv)
is
independently developed without access to the Confidential Information.
(d)
Nothing in these Rules of Tendering shall prevent PowerGen from:-
(i)
disclosing any Confidential
Information which is required to be disclosed by an order of court or other
tribunal or required to be disclosed in accordance with any law, statute,
proclamation, by-law, directive, decision, regulation, rule, order, notice,
rule of court, delegated or subordinate legislation parliamentary
obligation; or
(ii)
disclosing any information for the purpose of the examination and
certification of PowerGen's accounts; or
(iii) disclosing any information obtained from the
Vendor:-
(a)
to any other department, office or agency of the Crown; or
(b) to any
person engaged in providing any services to PowerGen for any purpose relating
to or ancillary to these Rules of Tendering,
provided that in disclosing information under this
sub-paragraph, PowerGen
discloses only the
information which is necessary for the purpose concerned and requires that the
information is treated in confidence and that a confidentiality undertaking is
given where appropriate.
(e) Nothing
in these Rules of Tendering shall prevent either Party from using any
techniques, ideas or know-how gained during
the performance of these Rules of Tendering in the course of its normal
business, to the extent that this does not result in a disclosure of
Confidential Information or an infringement of Intellectual Property Rights.
(f) In
the event that the Vendor fails to comply with this Clause 12, PowerGen
reserves
the right to terminate these Rules of Tendering by notice in writing with
immediate effect.
13.
Rights of Third Parties
These Rules of Tendering shall not create any rights that shall be enforceable
by anyone
other than PowerGen and the Vendor.
14.
Amendments to User Agreement
(a)
Subject to Clauses 14.2 and 14.3 hereunder,
the Vendor acknowledges that PowerGen reserves the right to vary or amend
these Rules of Tendering by publication of a
notification or message on the System or through an email or letter to the
Vendor.
(b) The
amendments shall be deemed to have been accepted by the Vendor unless PowerGen
Helpdesk receives, within 15 days of the date of the notice under Clause 14.1, a
written communication from the Vendor expressing refusal of the
amendments. In any case, the Vendor's
continued use of the System shall represent its unconditional acceptance
of the amendments in its entirety.
(c) The Vendor shall be entitled to terminate these Rules of Tendering
with
immediate effect in the event that notice is given pursuant to Clause 14.1.
15.
General Provisions
(a) The
waiver by either Party of any breach of these Rules of Tendering shall not
prevent the subsequent enforcement of that
provision and shall not be deemed to be a waiver of any subsequent breach
of that or any other provision.
(b) If at any time any part of these Rules of Tendering is held to be or
becomes void or
otherwise
unenforceable for any reason under any applicable law, the same shall be deemed
omitted from these Rules of Tendering and the validity and/or enforceability of
the remaining provisions of these Rules of Tendering shall not in any way be
affected or impaired as a result of that omission.
(c) Nothing contained either inside or outside these Rules of Tendering
shall be
taken as constituting:
(i) a
contract, including any collateral contract, or any contractual term between
PowerGen
and any other Party as to the procurement of any goods, services or works,
including any potential service provider; or
(ii) any
representation by or on behalf of PowerGen.
(d)
PowerGen shall not be committed to any course of action as a result of:
(i)
issuing any invitation to participate in a procurement process;
(ii) an
invitation to submit any proposal in respect of a procurement process;
(iii)
communicating with a Vendor in respect of this procurement process; or
(v)
any other
communication between PowerGen and any other party.
(e)
The Vendor accepts and acknowledges that:
(i) whilst
every care has been taken to ensure that the data and information
contained within an invitation to
participate in a procurement process is valid, PowerGen shall not accept liability
for the accuracy, adequacy or completeness of such information and data;
and
(ii) that by issuing an invitation to participate
in a procurement process, PowerGen shall not be bound to accept any response and it
reserves the right to award a contract
for some but not
all of the requirements specified or not to award any contract at all;
(iii)
PowerGen shall not accept any liability for any
costs or expenses incurred by a
Vendor responding
to any invitation to participate in a procurement process.
(f)
PowerGen and
the Vendor acknowledge that for the entire duration of the
procurement process, any dates and times
shall be those displayed on or logged by the System and any other
Helpdesk recording and telecommunications equipment, and such recordings shall
represent a full account of the actual facts and circumstances.
(g) The Vendor acknowledges that the System will not allow it to view the
identity of
the other Vendors during a procurement process and before closing .
(h) The waiver by either Party of any breach of these Rules of Tendering
shall not prevent the subsequent enforcement of that provision and shall not be
deemed to be a
waiver of any
subsequent breach of that or any other provision.
(i) The terms and expressions set out in Clause 20 shall have the
meanings
ascribed therein.
(j) While
all reasonable security precautions have been taken by PowerGen and its agents,
including the provision of a secure and robust operating environment, the nature
of communication by the Internet is such that PowerGen cannot absolutely guarantee
the privacy or confidentiality of communications transmitted via the Internet
from interference by third parties.
(k) Vendors
are advised that documents submitted electronically through the System in
response to a particular procurement process will be archived on a periodic
basis by PowerGen and may not be immediately accessible on the System for viewing.
16.
Notices
(a) All communications given under these Rules of Tendering shall be in
writing and
shall be:
(i) served to the Vendor, via e-mail, to the e-mail address the Vendor
has given
upon registration or through the messaging facility available on the System; or
(ii) served on
PowerGen, via e-mail to PowerGen HelpDesk as
aforementioned or through
the messaging
facility available on the System; and
(iii) deemed to be received by the addressee on the same day
as the addressor sending such e-mail, subject to the
(a)
addressor using the addressee's correct e-
mail address; and
(b)
addressee, on receipt of such an e-mail, e-mailing an
acknowledgement of receipt to the addressor
as soon as is practicable and in any event not later than 16:00 hrs of
the following Working Day after the addressee received such e-mail. If the
addressor fails to receive such acknowledgement by 16:00 hrs of the next
Working Day after the addressee received the
e-mail, the addressor may also serve the communication by first class
registered post to (i) the Vendor, to the
postal address the Vendor has given upon registration; or (ii)
PowerGen, to the postal address in Trinidad and
Tobago PowerGen has given in the procurement process, and shall be deemed to
be received by the addressee two working days after posting..
(b) Either Party to these Rules of Tendering may change its postal address
for notification
purposes by giving
the other reasonable prior written notice of the new information and its
effective date pursuant to this Clause 16.
17.
Law and Jurisdiction
These Rules of Tendering and any dispute or claim arising out of or in
connection
with them shall be governed by, and construed in accordance with, the laws of
Trinidad and Tobago.
18.
Interpretations
(a)
The headings to clauses are inserted for
convenience only and shall not affect the interpretation or construction
of these Rules of Tendering.
(b)
Words imparting the singular shall include the plural and vice versa. Words
imparting a gender include every gender and references to persons include an
individual, company, corporation, firm or partnership.
(c) The words and phrases "other", "including" and "in particular" shall
not limit
the generality of any preceding words or be construed as being limited to the
same class as any preceding words where a wider construction is possible.
(d)
References to any statute or statutory provision shall include (i) any
subordinate legislation made under it, (ii)
any provision which it has modified or re-enacted (whether with or
without modification), and (iii) any provision which subsequently supersedes it
or re-enacts it (whether with or without modification).
(e) All references in these Rules of Tendering to Clauses are to the
clauses to these Rules of Tendering
and references to Sections are to sections of these Rules of Tendering unless
otherwise stated.
19.
Products
PowerGen is providing a service in the
System which may facilitate the transfer of data prepared for products not
provided by PowerGen. The provision of this service does not:
(a)
imply
approval of such products by PowerGen;
(b)
imply a
preference of such products over any other similar product which does not
provide the functionality to upload data to the site;
(c)
imply any
liability on PowerGen's part for the accuracy, veracity and completeness of data
prepared by these products and for any errors arising from the use of these
products and for any damage arising from the use of these products.
20.
Definitions
"Confidential
Information" means secret, confidential, commercial, financial, marketing,
technical or other information, know-how, trade secrets and other
information in any form or medium whether
disclosed orally or in writing before or after the date of these Rules of
Tendering, together with any reproductions of such information in any form or
medium or any parties of this information. "Confidential" means that the
information, either in its entirety or in the precise configuration or assembly
of its components, is not publicly available.
"Digital
Certificate" indicates the ownership of a public key by an individual or
other entity. It allows verification of the claim that a given public key does
in fact belong to a given individual. Certificates help prevent someone from
using a phoney key to impersonate someone else. In their simplest form digital
certificates contain a public key and a name. More sophisticated versions also
contain an expiration date, the name of the certifying authority that issues the
certificate, a serial number, and the digital signature of the certificate
issuer. The most widely accepted format for certificates is defined by the
X.509 international standard. Therefore certificates can be read or written by
any application complying with X.509.
"Digital
Signature" verifies the contents of a message and the identity of the
signatory. It also provides a way of ensuring that a document was in fact sent
by a particular sender. This feature is known as non-repudiation. So long as a
secure cryptographic hash function is used to generate the digital signature,
there is no way to extract someone's digital signature from one document and
attach it to another, nor is it possible to alter a signed message in any way.
The slightest change in a signed document will cause the digital signature
verification process to fail.
"Force Majeure"
means any cause affecting the performance by either PowerGen or the Vendor of its
obligations arising from acts, events, omissions, happenings or non-happenings
beyond its reasonable control including (but without limiting the generality
thereof) governmental regulations, fire, flood, or any disaster or an industrial
dispute affecting a third party for which a substitute third party is not
reasonably available, any Act of God or similar causes beyond the control of the
party relying on the Force Majeure event. Any act, event, omission, happening or
non-happening will only be considered Force Majeure if it is not attributable to
the willful act, neglect or failure to take reasonable precautions of the affected Party, its agents
or employees or the failure of either the PowerGen or the Vendor to perform
its obligations under these Rules of Tendering.
"PowerGen Helpdesk"
means the facility provided by PowerGen to handle support queries and issues raised
by Assigned Vendor Users and can be contacted
at e-mail
helpdesk@digitalbusiness.com and telephone no.
636-4680/4662 ext. 4357 (help) during the hours of 8.00 am to 4.30 pm
(Trinidad and Tobago time) on Mondays to Fridays.
"Intellectual
Property" means any patent, copyright, database right, moral right, design
right (whether registered or unregistered), trade mark, service mark, domain
name, know-how, utility model, unregistered design or, where relevant, any
application for any such right, or other industrial or intellectual property
right.
"Vendor" means a pre-qualified contractor that has indicated its
acceptance to be bound by these Rules of Tendering.
"Assigned Vendor User" means an individual duly authorized to represent
the Vendor who has been registered and
been provided with access to the System.
"System"
means the eTenders System provided for Vendors to participate in PowerGen's
procurement process.
"Working Days"
means 08:00-16:00 Monday to Friday in Trinidad and Tobago and excluding public
holidays and weekends.
"Written
Notification of Contract Award" means the PowerGen's standard contract award
process identified for each procurement process that shall be expressly
initiated by PowerGen and may entail a
preliminary e-mail advising the Vendor of the formal contract award
process followed by a formal letter to the Vendor and may set out conditions of
contract award.
| 
