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Conditions of Participation (Panel)

1.     Request

1.1     The Request, as issued under VendorPanel, is a request to submit a Response for the provision of the Services, as set out in Part A.2.

1.2    Nothing in the Request is to be construed, interpreted or relied upon, expressly or implied, as an offer capable of acceptance by any person, or as creating any form of contractual, promissory, restitutionary or other rights. No binding contract (including a process contract) or other understanding (including any form of contractual, promissory, restitutionary or other rights) for the supply of the Services will exist between Cenitex and any Supplier unless and until Cenitex has signed a formal written contract with that Supplier.

1.3    The Supplier must not supply any Services under the Panel Contract in respect of the Request until a Quotation for those Services is signed by both parties.

1.4    Participation in the Request Process is subject to compliance with the rules contained in Part A.1 – About this Request and this Part B – Conditions of Participation. All Suppliers are deemed to accept these rules from the date that the Supplier receives this Request.

1.5    While all due care has been taken in connection with the preparation of the Request, Cenitex makes no representations or warranties that the content in the Request or any part of it or any information communicated to or provided to Suppliers during the Request Process is, or will be, accurate, current or complete.

1.6    Cenitex reserves the right to change any information in, and/or to issue addenda to, the Request before the Closing Time. Where Cenitex exercises its right to change information in accordance with this paragraph, Cenitex may, at its discretion:

(a) seek amended Responses from Suppliers; and/or

(b) amend the Closing Time to allow Suppliers sufficient time to amend their Response.

1.7   The Supplier shall ensure that any of its Representatives, or any other person to whom it supplies this Request and any other documents issued in relation to the Request Process, will, in relation to use of, return of and liability for that material and documentation, be bound by the same terms in or to the same effect as those contained in this Request.

2    Confidentiality

2.1   All persons (including Suppliers) obtaining or receiving the Request must keep, and must ensure that its Representatives keep, the content of the Request and any other information provided to Suppliers by or on behalf of Cenitex in connection with the Request Process confidential, and not disclose or use that information except as required for the purpose of drafting a Response in response to the Request.

3  Communications and requests for clarification or further information

3.1   All communications relating to the Request and the Request Process must be directed to the Cenitex Contact. Any questions or requests for clarification or further information regarding this Request or the Request Process must be submitted to the Cenitex Contact in writing.

3.2   Cenitex is not obliged to respond to any question or request, irrespective of when such question or request is received. Cenitex may use any method of its choosing to provide answers to questions submitted in accordance with this clause 3.

3.3   Communications (including promotional or lobbying activities) with Cenitex, its Representatives or other Victorian Government departments or agencies are not permitted during the Request Process except as provided in this clause 3 or with the prior written consent of the Cenitex Contact. Unauthorised communications with such persons may, in the absolute discretion of Cenitex, lead to disqualification of a Supplier from further participating in the Request Process.

3.4   Suppliers must not otherwise engage in any activities or obtain or provide improper assistance that may be perceived as, or that may have the effect of, influencing the outcomes of the Request Process in any way.

3.5   Suppliers must not seek or obtain the assistance of Representatives of Cenitex or the State of Victoria in the preparation of their Responses.

3.6   Suppliers and their Representatives must not, at all times during the Request Process, engage in any collusive, anti-competitive or any similar conduct with any other potential Supplier or other person, or offer any unlawful inducements in connection with the preparation of their Response.

3.7   Suppliers and their Representatives must not place themselves in a position that may give rise to an actual, potential or perceived conflict of interest between the interest of the State of Victoria and the Supplier’s interests during the Request Process. Suppliers must disclose any conflicts of interest in their Response, notify Cenitex if any conflict of interest arises after lodgement of their Response, and comply with any reasonable directions given by Cenitex. Cenitex may disqualify a Supplier from the Request Process if the Supplier fails to notify Cenitex of any conflict of interest or if Cenitex determines that a conflict (whenever and howsoever arising) cannot be managed to Cenitex’s satisfaction.

4.     Complaints process

4.1  Any complaint about the Request or the Request Process must be submitted in writing to the Cenitex Contact via email to the address set out in the Request. The written complaint must set out the basis for the complaint, how the subject of the complaint affects the person or organisation making the complaint, the outcome desired by the person or organisation making the complaint, and any relevant background information.

5.     Submission of a Response

5.1    Responses are to be submitted electronically in accordance with the VendorPanel process. Responses must be lodged by the Closing Time. The Closing Time may be extended by Cenitex in its absolute discretion by providing written notice to the Suppliers.

5.2    If an Offer is lodged after the Closing Time, it may be disqualified from the Invitation Process and may be ineligible for consideration unless:

(a) Invitee can clearly document to the satisfaction of Cenitex that an event of exceptional circumstances caused the Offer to be lodged after the Closing Time; and
(b) Cenitex is satisfied that accepting a late submission would not compromise the integrity of the Invitation Process.

5.3    It is the Supplier’s responsibility to understand the requirements of this Request, the Request Process and any reference documentation, examine this Request for Services and any documents referenced or attached to the Request, and to fully inform themselves in relation to all matters arising from the Request.

5.4    Incomplete Responses may, at Cenitex’s discretion, be disqualified or evaluated solely on the information contained in the Response. Cenitex may disregard any content in a Response that is illegible and will be under no obligation whatsoever to seek clarification from the Supplier.

5.5    Suppliers must comply with all applicable laws in preparing and lodging their Responses and in taking part in the Request Process (including Chapter 2 of the Australian Consumer Law and Fair Trading Act 2012 (Vic)).

5.6    Upon submission, all Responses become the property of Cenitex. The Supplier will retain all ownership rights in any Intellectual Property Rights contained in the Response, however each Supplier, by submission of their Response, is deemed to have granted a licence to Cenitex to reproduce the whole, or any portion of their Response for the purposes of enabling Cenitex to evaluate their Response and for the purpose of disclosing it under clause 7.

5.7    Each Response constitutes an irrevocable offer by the Supplier to Cenitex to provide the Services required under, and otherwise to satisfy the requirements of, the Requirements and the terms and conditions of the Panel Contract, subject to the statement in the Response indicating the Supplier’s compliance with the Requirements and the Panel Contract.  

5.8    A Supplier’s participation in any stage of the Request Process is at the Supplier’s sole risk, cost and expense.

5.9    Suppliers are required to provide a statement of its compliance with the Requirements. For the purposes of the Supplier’s preparation of the compliance statements, indefinite responses such as ‘noted’, ‘to be discussed’ or ‘to be negotiated’ are not acceptable. Suppliers are required to indicate specifically why they do not comply with one or more of the Requirements, or the conditions surrounding their compliance. 

6.     Evaluation

6.1   Cenitex will evaluate all Responses complying with the conditions of the Request in accordance with the Evaluation Criteria, the evaluation process described in this clause 6, and the overall value for money proposition presented in the Response. Responses which are significantly deficient as against one or more Evaluation Criteria may result in the Response not being further evaluated.

6.2   Cenitex has absolute discretion in relation to the evaluation of a Response and the conduct of the evaluation process, including whether or not the proposed evaluation process set out in this clause 6 is followed in whole or in part by Cenitex. The commencement of negotiations by Cenitex with one or more other Suppliers is not to be taken as an indication that any particular Supplier has been or has not been successful.

6.3   A Response from a Supplier will not be deemed to be unsuccessful until such time as the Supplier is formally notified of that fact by Cenitex.

6.4   Without limiting Cenitex’s rights in relation to the Request, Cenitex may in its absolute discretion:

  • reject any Response that does not include all the information requested or is not in the format required;
  • reject any Response that does not meet the mandatory Evaluation Criteria in Part A.1 or that, in Cenitex’s opinion, is unacceptable;
  • shortlist one or more Suppliers to proceed to further negotiations;
  • cease to proceed with or suspend the Request Process prior to the execution of a formal written contract;
  • accept one or more of the Responses;
  • reject any or all Responses;
  • alter the structure and/or the timing of this Request or the Request Process;
  • vary or extend any time or date specified in this Request for any or all Suppliers; or
  • elect not to appoint any Supplier or enter into a contract with any Supplier.

6.5   A Response will not be deemed to be unsuccessful until such time as the Supplier is formally notified of that fact by Cenitex.

6.6   Selection as a shortlisted or preferred Supplier does not give rise to a contract (express or implied) between the shortlisted or preferred Supplier and Cenitex for the supply of Goods and/or Services. No legal relationship will exist between Cenitex and the shortlisted or preferred Supplier until such time as a binding contract in writing is executed by both parties.

6.7   The Supplier is bound by its Response and, if selected as the successful Supplier, must enter into a contract on the basis of the Response without negotiation.

6.8   If, in Cenitex’s opinion, a Response is unclear in any respect, Cenitex may, in its discretion, seek clarification from a Supplier. Failure to supply clarification to the satisfaction of Cenitex may render the Response liable to disqualification.

7.     Disclosure requirements

7.1   Responses will be treated as confidential by Cenitex. Cenitex will not disclose Response contents and information except to its Representatives engaged to assist with the Request Process, or as required by law.

7.2   Nothing in the Request, including these Conditions of Participation, restricts the powers or functions of the Auditor General, the Ombudsman or IBAC, or otherwise restricts any other statutory audit or investigative powers under any applicable Laws, including powers to access premises or systems.

8.     Cenitex’s rights

8.1   Notwithstanding anything else in the Request, and without limiting its rights at law or otherwise, Cenitex reserves the right, in its absolute discretion at any time, to:

  • cease to proceed with or suspend the Request Process;
  • alter the structure and/or timing of the Request or the Request Process;
  • vary or extend any time or date specified in the Request for all or any Suppliers;
  • terminate the participation of any Supplier or any other person in the Request Process;
  • require additional information or clarification from any Supplier or any other person or provide additional information or clarification;
  • negotiate with any one or more Suppliers and allow any Supplier to alter its Response;
  • call for new Responses; or
  • reject any Response that does not comply with the requirements of the Request.

9.     Inconsistency

9.1   If there is any inconsistency between the documents that comprise the Request, the documents will be interpreted in the following, descending order of precedence:

  1. the conditions of participation set out in Part A.1 and Part B of this Request for Services;
  2. the Requirements;
  3. the Panel Contract;
  4. Part D of this Request for Services; and
  5. any documents in relation to the Request accessible on VendorPanel,

so that the provision in the higher ranked document, to the extent of the inconsistency, prevails.  

10.     Definitions

10.1 Definitions:

Auditor General means the Auditor General appointed under section 94A of the Constitution Act 1975 (Vic).

Cenitex Contact means the person so designated in the Request.

Closing Time means the time specified as such in the Request by which Responses must be received by Cenitex.

Evaluation Criteria means the criteria set out in the Request.

IBAC means the Independent Broad-based Anti-corruption Commission established under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Ombudsman means the ombudsman appointed under the Ombudsman Act 1973 (Vic).

Panel Contract means the panel agreement described in introduction to this Request.

Representative means a party and its agents, servants, employees, contractors, associates, Suppliers and anyone else for whom that party is responsible and, in respect of a Supplier includes any ‘Related Body Corporate’ of the Supplier (as that term is defined in the Corporations Act 2001 (Cth)) and any proposed subcontractors, vendors and consortia members.

Request means the opportunity identified in the Introduction to this Request for Services, including:

(a)   this Part B – Conditions of Participation, and any other documents so designated by Cenitex; and

(b)   any documents relating to the Request that have been issued by Cenitex under, and are accessible on, VendorPanel.

Request Process means the process commenced by the issuing of the Request and concluding upon formal announcement by Cenitex of the selection of the preferred Supplier(s) or upon the earlier termination of the process.

Requirements means any description of Cenitex’s requirements (including any specifications) contained in or referred to in Part A.2 of this Request for Services.

Response means a document lodged by a Supplier in response to the Request, containing an offer to provide the Services in accordance with the Request, and may include a Quotation from the Supplier. This may also be referred to as a quote, offer, tender, submission, registration or bid.

Services means the services required by Cenitex, as specified in the Requirements.

Supplier means any entity that submits a Response in response to the Request. A Supplier may also be known as a tenderer, service provider, registrant, bidder, invitee or vendor.

VendorPanel means the source-to-award procurement platform supplied to Cenitex in accordance with the eProcurement Platform State Purchase Contract (STA001).

10.2  Interpretation

In this Request, unless expressly provided otherwise:

(a)   the singular includes the plural and vice versa;
(b)   a reference to:

  • ‘includes’ or ‘including’ means includes or including without limitation;
  • any legislation (whether primary or subordinate) is to legislation of the Commonwealth of Australia, or the State of Victoria as amended or replaced from time to time; and
  • ‘$’ or dollars is a reference to the lawful currency of the Commonwealth of Australia;

(c)    if a word or phrase is defined, its other grammatical forms have corresponding meanings;
(d)   words importing a gender include any other gender;
(e)   clause headings are inserted for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer; and
(f)     words importing persons include a partnership and a body whether corporate or otherwise.