ELECTORAL COMMISSION
ELECTRONIC PROCUREMENT TERMS AND CONDITIONS
[Last amended: 11/04/2017]
This Agreement governs the rights and obligations of you, ("the
Supplier") and the Electoral Commission ("IEC") in respect of Quotes
submitted via the IEC e-Procurement website ("the website").
PART 1
INTERPRETATION
1 Definitions
In these eProcurement Terms the following terms shall have the following meaning:
"Access code" means the Supplier selected User Name and
Password required for log-on;
"Agreement" means these eProcurement terms read with the
standard Electoral Commission procurement terms;
"Auction" means the process where bids are made on an
request for quotation/bid via the website;
"Auction site" means the section of the website requiring an
access code where auctions are conducted;
"Bid" means the offer for the supply of goods or services
specified in the bid;
"Bid criteria" means the specified criteria applied by the Electoral
Commission to calculate the bid score;
"Bid decrement" means the specified minimum amount by which
the bid price can be lowered by a supplier;
"Bid period" means the period from which an auction opens
until the closing date;
"Bid price" means the price stipulated in the bid for the
supply of goods or services;
"Bid score" means the score derived for a particular bid
based on the bid criteria;
"CSD" means the Central Supplier Database;
"Closing date"means the date and time when an auction comes
to a close, as specified;
"Disabled"
means, in respect
of a person, a permanent impairment of a physical, intellectual, or sensory
function, which results in restricted, or lack of, ability to perform an
activity in the manner, or within the range, considered normal for a human
being;
"Electronic signature" means an electronic signature as
defined in applicable legislation and includes the access code;
"Goods or services" means the goods or services on which
bids are made in an auction;
"Guest" means any visitor to the website who is not a
supplier;
"Historically Disadvantaged Individual (HDI)" means a South
African citizen - who,
(1) due to the apartheid policy that had been in place, had no franchise in
national elections prior to the introduction of the Constitution of the
Republic of South Africa,1983 (Act No 110 of 1983) or the Constitution of the
Republic of South Africa,1993 (Act No 200 of 1993) ("the Interim
Constitution"); and / or
(2) who is a female; and / or
(3) who has a disability:
Provided that a person who obtained South African citizenship on or after the
coming to effect of the Interim Constitution, is deemed not to be an HDI;
"Electoral Commission system" means the information
technology infrastructure of the information system underlying online
bidding, owned, leased or managed by the Electoral Commission;
"Information system" means a system for generating, sending,
receiving, storing, displaying or otherwise processing bids;
"Leading bid" means the bid with the highest bid score at
the time of the closing date;
"Preferential Procurement Regulations" means the regulations
issued in terms of the Preferential Procurement Policy Framework Act No. 5 Of
2000;
"Online" means via any information system used for online
bidding, from time to time;
"Online bidding" means the facility provided by the Electoral
Commission to Suppliers to participate in Auctions via the website;
"Previously Disadvantaged Individual (PDI)" who due to the
apartheid policy that had been in place, had no franchise in national
elections prior to the introduction of the Constitution of the Republic of
South Africa,1983 (Act No 110 of 1983) or the Constitution of the Republic of
South Africa,1993 (Act No 200 of 1993) ("the Interim
Constitution");
"Requirements of form" means any requirement in the Standard
Electoral Commission procurement terms or applicable legislation for
documents, writing, signatures, communications, correspondence or actions to
be executed or performed in a certain physical form;
"Bid" means a request for bids from the Electoral Commission
to suppliers to make and offer to the Electoral Commission for the supply of
goods or services;
"Specified" means displayed on or via the website or in the
bid;
"Standard Electoral Commission procurement terms" means the Electoral
Commission standard procurement terms and conditions applicable to all bids
(via the website or otherwise), consisting of the following:
"Submit"means the submission of
information by the supplier to the Electoral Commission through the Electoral
Commission system and includes the clicking of any icon or hyperlink on the
website or functionality on the supplier's Internet browser which transmits
information to the Electoral Commission;
"Supplier" means a person duly registered and authorised to
use online bidding;
"Bid" means an electronic quote for the supply of specified
goods and/or services bid;
"Website" means the Electoral Commission eProcurement
website, including the auction site.
"Winning bid" means the bid to which the bid the Electoral
Commission awarded a contract/purchase order in terms of clause 10;
[Terms not defined herein are defined in the standard Electoral Commission
procurement terms]
2
Acceptance
This Agreement is concluded between the parties on the occurrence of the
first of the following events:
(a)
completion of any application for access to online bidding;
(b)
submission of a bid; or
(c)
whenever use is made of online bidding in any manner or form.
3 Registration and
Approval
3.1 Suppliers who are registered on the National Treasury Central Supplier
Database (CSD) are required to apply to the Electoral Commission for access
to online bidding and to complete such documents or provide such information
as may be required by the Electoral Commission from time to time ("the
registration particulars"). The Electoral Commission, in its sole and
absolute discretion and without stating reasons therefore, shall have the
right to reject any application for online bidding.
3.2 The supplier authorises the Electoral Commission to make such enquiries
and conduct such reviews and interviews with supplier personnel, business
partners, existing and previous clients of the supplier, sub-contractors,
Government departments, Central Supplier Database, credit bureaus and any
other person the Electoral Commission deems necessary to determine whether
the supplier should be approved.
3.3 Once approved, a supplier remains subject to the registration particulars
until the supplier notifies the Electoral Commission of any changes thereto
in the specified manner.
3.4 Any bids submitted on a bid shall be deemed to incorporate the
registration particulars, as amended in terms of clause 3.3.
4 Interpretation and
Incorporation
4.1 This Agreement governs the rights and obligations of the supplier, the
guest and the Electoral Commission in respect of online bidding. The rights
of a guest shall be limited to accessing and viewing such information
provided on the website for which no access code is required.
4.2 In this Agreement, all references to supplier shall include reference to
a guest, provided that a guest shall under no circumstances obtain any of the
rights granted to suppliers in this Agreement.
4.3 These eProcurement terms are hereby deemed to be incorporated by
reference into the standard Electoral Commission procurement terms,
notwithstanding any "sole agreement" provisions of the standard Electoral
Commission procurement terms.
4.4 As far as any provisions of the standard Electoral Commission procurement
terms require the Electoral Commission and/or supplier to agree to amendments
to the standard Electoral Commission procurement terms either in writing and
or through the application of signatures, the acceptance by the supplier of
this Agreement shall be deemed to satisfy such requirements in all respects.
4.5 Therefore, each bid remains subject to the relevant standard Electoral
Commission procurement terms applicable to a bid and these eProcurement terms
are merely aimed at facilitating the use of the website to submit bids and
participate in auctions.
4.6 Whenever inconsistencies arise between the interpretation of the standard
Electoral Commission procurement terms and the provisions of these
eProcurement terms or requirements of form, the provisions of these
eProcurement terms shall prevail.
PART 2
AUCTION RULES
5
Introduction
5.1 Auctions are restricted to suppliers that have been approved by the Electoral
Commission to access and use the online bid process.
5.2 The approval of a supplier is an integral part of the supplier’s
registration on the Central Supplier Database (CSD) and any changes,
including non-compliant tax status, may impact on such approval and a
supplier’s ability to participate in any auction.
5.3
By participating in an auction and submitting bids, the supplier is not
required to resubmit the registration particulars as this information is
deemed to be incorporated into each bid.
5.4 The bid, together with the registration particulars shall be deemed to
constitute a bid made on each applicable bid requirement posted on the
website.
5.5 The Electoral Commission may cancel a bid at any time without stating
reasons therefore.
6 Bidding
6.1 The supplier must update the information displayed on the eProcurement
system before placing a bid by selecting the "refresh" function
provided for on that site. Failure to do so could result in the supplier
submitting a bid based on out-dated information.
6.2 The supplier must complete and submit a bid only in the specified manner.
6.3 The supplier may lower its bid price at any time prior to the closing
date but may not increase its bid price once submitted.
6.4 The supplier may not withdraw a bid once it has been submitted as a bid
constitutes an irrevocable offer for the duration of the bid period. Bid prices shall
be valid for at least 180 days following the closure of an auction.
6.5 The award of the auction may be subjected to the negotiation of a market-related price with a bidder
in accordance with the provisions of the Preferential Procurement Regulations, 2017.
6.6 A bidder may not be awarded points for B-BBEE status level of contributor
if the bidder indicates that the bidder intends subcontracting more than 25%
of the value of the contract to any other person not qualifying for at least the points that the
bidder qualifies for, unless the intended subcontractor is an EME that has the capability
to execute the subcontract. The bidder’s responses to the conditions of the auction shall be binding as being true and correct.
6.7 The Electoral Commission may, in its sole discretion, extend the closing
date or time at any time without stating reasons therefore.
6.8 A bid must be submitted exclusively via the auction site and any bids
received otherwise than via the auction site shall be null and void.
6.9 The Electoral Commission reserves the right to remove a bid from an
auction should the Electoral Commission, in its sole and absolute discretion,
deem such bid to be:
6.9.1 in breach of any provision of this Agreement;
6.9.2 not in compliance with the conditions of the auction;
6.9.3 not made bona fide; or
6.9.4 prejudicial to or not conforming to the aim and spirit of the online
bidding facility.
7 Proxy Bidding
7.1 The auction site allows the supplier to specify the minimum bid price
(the "minimum price offer") the supplier is willing to make on a
bid.
7.2 The proxy bid functionality (the "proxy bid") allows the eProcurement
system to automatically and continuously lower a bid price to ensure that the
supplier's bid points on a particular bid continue to exceed the bid points
of a competitor with one bid point (the "automatic adjustment").
7.3 The automatic adjustment will continue until the minimum bid is reached
after which time the automatic adjustment will cease and the supplier's
lowest bid will remain as the supplier's final bid.
8 Compare Bid
8.1 The eProcurement system allows the supplier to compare the bid points of
its proposed bid with that of the leading bid, prior to finally submitting
the bid (the "compare bid function").
8.2 The compare bid function allows the supplier to determine what bid price
should be submitted and is therefore merely a value added function.
8.3 The supplier acknowledges that the compare bid function does not
constitute a bid as the supplier has to submit the bid by selecting the
specified submit functionality.
8.4 The compare bid function does not take proxy bidding into account.
9 Notification of
Leading Bid
9.1 The Electoral Commission may, in its sole discretion and without
incurring an obligation to do so or continue to do so, notify suppliers of a
new leading bid.
9.2 Such notification may be provided by such means as the Electoral
Commission may determine from time to time, including e-mail, phone, or short
message system (SMS) messages.
9.3 Notwithstanding any provisions in this Agreement, it remains the sole
responsibility of each supplier to monitor the auction site and determine the
leading bid.
10 The Winning Bid
10.1 Only approved suppliers are eligible to be awarded a winning bid.
10.2 The leading bid will not necessarily constitute the winning bid and
merely forms one of the criteria the Electoral Commission will take into account
in awarding the bid.
10.3 The Electoral Commission will determine the winning bid in accordance
with the bid evaluation criteria and the provisions of the Preferential
Procurement Regulations, 2017;
10.4 The Electoral Commission shall not be compelled to award an auction to a
perceived winning bid and the Electoral Commission shall be entitled to take
such time as it deems fit after the closing date to determine the actual winning
bid.
10.5 The supplier who made the winning bid shall be notified of being awarded
the bid by such means as the Electoral Commission may determine from time to
time.
10.6 Notwithstanding anything to the contrary in this agreement, a bid shall
only be deemed to be awarded once the Electoral Commission has provided the
supplier with a duly executed and signed purchase order for the required
goods or services.
10.7 The procedures to be followed after the determination of the winning bid
and the rights and obligations of the parties in respect of the goods or
services are governed by the standard Electoral Commission procurement terms.
11 Transparency
11.1 A supplier's online bid shall be viewable to other participating
suppliers in an auction.
11.2 The supplier acknowledges that by making this information available to
other suppliers, the Electoral Commission shall not be held liable for any
breach of confidence, confidentiality or secrecy.
PART 3
GENERAL PROVISIONS
12 Access Code
12.1 The supplier shall ensure that the access code (password) is neither
easily accessible nor disclosed to anyone. Storing the access code on a
computer or network will be regarded as prima facie negligent for purposes of
evidence with regard to unauthorised transactions.
12.2 The supplier shall be obliged to log-off from online bidding after participating
in an auction. Failure to log-off could result in unauthorised transactions
for which the Electoral Commission will not be held liable.
12.3 The Electoral Commission may, in its sole discretion and for whatever reason,
require a supplier to change its access code from time to time and the
supplier undertakes to comply with such requirement unconditionally.
12.4 The supplier acknowledges that the access code may enable the supplier
to access some or all online eProcurement services of the Electoral
Commission and, accordingly, unauthorised use of the access code could expose
a supplier to fraudulent transactions with the Electoral Commission.
13 Deemed Originator
13.1 The Electoral
Commission shall be entitled to regard all bids purporting to originate from
a supplier as validly and lawfully originating from or authorised by the
supplier and to act on such bid. Under no circumstances shall the Electoral
Commission be held liable for any actions taken on unauthorised bids.
13.2 Any electronic message purporting to originate from the Electoral
Commission shall only be attributed to the Electoral Commission if such
message was actually been sent by an authorised representative of the Electoral
Commission.
14 Deemed Receipt
14.1 The Electoral
Commission shall only be deemed to have received an electronic communication
(including a bid) from the supplier once the electronic communication was
opened by an authorised representative of the Electoral Commission or once
the website displays the information transmitted, as the case may be.
14.2 In the event of a dispute as to the time when an electronic message was
received, the records of the Electoral Commission (including e-mail end web
server log records) shall constitute prima facie proof.
14.3 An electronic message sent by the Electoral Commission shall be deemed
to have been sent at such time as the Electoral Commission records show the
message to have entered an information system outside the control of the Electoral
Commission.
15 Electoral
Commission Server Time
The eProcurement
site displays the time recorded ("server time") on the Electoral
Commission’s ICT server. Save for where a system malfunction can be proved,
the server time constitutes conclusive proof as to the time of all actions
performed and all information received to or transmitted from the eProcurement
system.
16 Sufficient
Notification
16.1 The supplier
hereby grants the Electoral Commission authority to issue notifications
required in terms of the Agreement, legislation or regulation, as the case
may be, by posting such notification on the website or sending such
notification by e-mail.
16.2 Any notices so issued by the Electoral Commission, shall as far as they
contain contractual terms pertaining to online bidding, also form part of the
Agreement.
16.3 A certificate signed by the administrator responsible for the
maintenance of the information system (whose authority it shall not be
necessary to prove) shall be prima facie proof of the first date of
publication, withdrawal or contents of a notification.
17 Amendments
17.1 This
Agreement may be amended by the Electoral Commission from time to time. The
supplier acknowledges that by accessing the website from time to time, it
shall become bound to the current version of the Agreement (the "current
version") and, unless otherwise stated in the current version, all
previous versions shall be superseded by the current version. Suppliers
undertake to view the then current version each time use is made of online
bidding.
17.2 Without derogating from the a foregoing and without imposing any
obligation on the Electoral Commission whatsoever, the Electoral Commission
reserves the right to give suppliers notification of amendment of the
Agreement either by electronic mail or by posting a notice on the website. On
notification of the existence of the amended terms, suppliers are obliged to
visit the website and view the then current version of the Agreement. Unless
the supplier notifies the Electoral Commission otherwise, the amended
Agreement will be deemed to have been perused and accepted by the supplier
whenever the supplier makes use of online bidding.
17.3 A certificate signed by the administrator responsible for the
maintenance of the website shall be prima facieproof of the date of
publication and content of the current version and all previous versions of
the Agreement. The same provisions apply with regard to notices and
disclaimers posted on the website.
18 Unavailability of
Online Bidding
18.1 The Electoral
Commission shall at all times and for whatever reason, have the sole and
exclusive right to suspend or terminate online bidding without any prior
notification or giving any reasons for such termination or suspension.
18.2 Suppliers acknowledge and accept that online bidding may become
unavailable from time to time due to various circumstances, including:
technical failure or problems with the Electoral Commission system; technical
failure or problems with third party information technology systems;
unavailability of telecommunication or electricity services; or other
circumstances beyond the control of the Electoral Commission.
18.3 Without derogating from the provisions of clause 26, suppliers undertake
to limit their potential losses by utilising other means of communication and
delivery of bids for the duration of the unavailability of online bids.
19 Warranty
The supplier warrants
to the Electoral Commission that it: (a) has the requisite legal capacity to
make use of online bidding; (b) has complied with all applicable statutory
provisions; and (c) has read, understood and accepted the terms of this
Agreement.
20 No Offer
Unless clearly
otherwise stated, no material should be construed as an offer of whatever
kind made by the Electoral Commission. All material on the website merely
constitutes an invitation to do business with the Electoral Commission.
21 Intellectual
Property
The logos and
marks displayed on the website are registered and unregistered trademarks of
the Electoral Commission and/or third parties. Nothing contained on the
website should be construed as granting any licence or right to use any
trademark without the written permission of the Electoral Commission and/or
such third parties. Suppliers are hereby authorised to view, download one
copy to a local hard drive or disk, print and make copies of such printouts,
provided that:
21.1 such material is used for purposes of using or considering using online
bidding and no other commercial purposes;
21.2 any reproduction of the Electoral Commission proprietary material from
the website or portion thereof must include this notice in its entirety.
22 Use of Browser and
Software
22.1 Suppliers
are required to use and maintain only hardware and software of sufficient
quality and performance capability and to use only the specified makes and
versions of internet browser software. Failure to use a specified browser may
result in a higher security risk and/or cause some or all of the
functionality of the website not to operate properly or at all and the Electoral
Commission shall not be held liable in this regard.
22.2 Software, if any, made available for download on or via the website is
governed by licence conditions establishing a legal relationship with the
licensor. Suppliers indemnify the Electoral Commission against any breach of
such licence conditions.
22.3 The Electoral Commission gives no warranty and makes no representation,
whether express or implied, as to the quality or fitness for purpose or use
of such software.
22.4 No warranty, whether express or implied is given that any files,
downloads or applications available via the website are free of viruses, or
any other data or code which has the ability to corrupt or affect the
operation of suppliers' systems.
23 Transmission of
Information
Information
transmitted via the internet, including e-mail, is susceptible to unlawful
access or monitoring. suppliers shall bear all risk of transmitting such
information in this manner and under no circumstances will the Electoral
Commission be liable for any loss, harm or damage suffered by them as a
result thereof. The Electoral Commission reserves the right to request
independent verification of any information transmitted via the website or
e-mail.
24 Information Feeds
The Electoral
Commission may use the services of certain third parties to provide
information on the website from time to time. The Electoral Commission has no
control over this information and makes no representations or warrantees of
any nature as to the accuracy, appropriateness or correctness of such
information. Suppliers agree that such information is provided "as
is" and the Electoral Commission shall not be directly or indirectly
liable for any damages that may arise from the supplier's reliance on such
information.
25 Hyperlinks; Deep
linking; Crawlers and Metatags
25.1 External
hyperlinks may be provided for convenience. These web pages are beyond the
control of the Electoral Commission and no representation or endorsement is
made as to their content.
25.2 No person shall be entitled to link a website or any web pages to any
web pages of the website without the prior written consent of the Electoral Commission.
25.3 No person shall be entitled to send search-software (crawlers) to
retrieve information from the website for reproduction or processing, in any
manner or form, without the prior written consent of the Electoral Commission.
25.4 No person shall be entitled to use the Electoral Commission's name or
that of any of its proprietary products or services for purposes of
metatagging without the prior written consent of the Electoral Commission.
26
DISCLAIMER & LIMITATION OF LIABILITY
26.1 THE WEBSITE
AND ePROCUREMENT SYSTEM ARE PROVIDED "AS IS" AND THE ELECTORAL
COMMISSION MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
REGARD THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING:-
26.1.1 THE ELECTORAL COMMISSION DOES NOT WARRANT THAT THE WEBSITE OR ONLINE
BIDDING WILL BE ERROR-FREE OR WILL MEET ANY PARTICULAR CRITERIA OF ACCURACY,
COMPLETENESS OR RELIABILITY OF INFORMATION, PERFORMANCE OR QUALITY.
26.1.2 THE ePROCUREMENT SYSTEM IS INTEGRATED WITH THE NATIONAL TREASURY
CENTRAL SUPPLIER DATABASE (CSD) AT TIMED 24HOUR INTERVALS. THE SUPPLIER
REGISTRATION INFORMATION DISPLAYED AT ANY POINT IN TIME SHALL CORRESPOND WITH
THE DATA ON THE CSD AS IT WAS AT THE LAST TIMED EVENT. ANY EXPECTED UPDATES
WILL ONLY BE DISPLAYED FOLLOWING THE NEXT TIMED EVENT.
26.1.3
THE ELECTORAL COMMISSION EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND
ACCURACY.
26.2 NEITHER THE ELECTORAL COMMISSION, ITS SHAREHOLDERS, AGENTS, CONSULTANTS
OR EMPLOYEES WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER RELATING TO THE USE OF
THE WEBSITE, ONLINE BIDDING OR THE INFORMATION CONTAINED THEREIN, INCLUDING,
WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF CONTRACT, STATUTE, DELICT OR
OTHERWISE. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, THE
ELECTORAL COMMISSION SHALL NOT BE LIABLE FOR:
26.2.1 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER FAILURE OF THE
WEBSITE OR ONLINE BIDDING, THE ELECTORAL COMMISSION SYSTEM, DATABASES OR ANY
COMPONENT PART THEREOF FOR WHATEVER REASON;
26.2.2 ANY LOSS OR DAMAGE WITH REGARD TO SUPPLIER DATA OR OTHER DATA DIRECTLY
OR INDIRECTLY CAUSED BY MALFUNCTION OF THE ELECTORAL COMMISSION SYSTEM, POWER
FAILURES, UNLAWFUL ACCESS TO OR THEFT OF DATA, COMPUTER VIRUSES; PROGRAMMING
DEFECTS OR NEGLIGENCE ON THE PART OF THE ELECTORAL COMMISSION;
26.2.3 ANY INTERRUPTION, MALFUNCTION, DOWNTIME OR OTHER FAILURE OF GOODS OR
SERVICES PROVIDED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, THE PUBLIC
SWITCHED TELECOMMUNICATION SERVICE PROVIDERS (CURRENTLY TELKOM), INTERNET
SERVICE PROVIDERS, ELECTRICITY SUPPLIERS (CURRENTLY ESKOM), LOCAL AUTHORITIES
AND CERTIFICATION AUTHORITIES;
26.2.4 AN EVENT OF VIS MAJOR OR ANY OTHER EVENT OVER WHICH THE
ELECTORAL COMMISSION HAS NO DIRECT CONTROL.
27 Technology
Neutrality
The Electoral Commission makes online bidding available to suppliers subject
to the principle of technology neutrality, which principle suppliers hereby
accept. The principle of technology neutrality means that:
27.1 Online bidding is subject to the same business fundamentals and
principles governing the Electoral Commission's standard evaluation
procedures of bids.
27.2 Online bidding is subject to the same processing turn-around times and
performance criteria as applied by the Electoral Commission in evaluating
bids received through other mediums of communication and delivery.
27.3 Any requirements of form shall include electronic or online forms
thereof.
27.4 Documents or displays viewed or printed by suppliers via an information
system shall prima facie be deemed to be "true copies" of the
original.
27.5 The supplier hereby designates the access code as the supplier's
signature for purposes of all subsequent actions performed or bids made
during an auction.
27.6 In as far as a signature is required for each bid in terms of the
Agreement or applicable legislation, the supplier hereby designates each
submission of a bid as its written signature.
27.7 Whenever required in the Agreement or applicable legislation, the
submission of the access code, together with the submission of a bid shall,
collectively, constitute and have the same effect as a written, signed
authority.