Conditions of application
Contents
1.General conditions
2.Lodgement of applications and closing time
3Late applications
4Requests for further information
5Reservations
6Conflicts of interest
7Confidentiality and intellectual property
8Disclosure
9Lobbying
10Dumping of goods
11Period of validity
12Pricing
13Payments
14Alternative applications
15Anti-competitive conduct
16Applicant warranties
17General conditions of response
18Sub-contracting
19Victorian Industry Participation Policy
20Complaints
Accommodation for the Homeless Phase 2 and Community Sector Owned Rooming House Upgrade
Conditions of application1
1.General conditions
1.1Conditions
Organisations wishing to apply should submit their application in accordance with the department’s requirements as set out in this document. The conditions under which a response must be made are indicated in this section. Applicants should familiarise themselves with this document and ensure applications conform. Applicants are deemed to have:
1.1.1.Examined the application documents and other information made available by the department to the applicants for the purpose of applying.
1.1.2.Examined all information relevant to risks, contingencies, and other circumstances having an effect on their application and which is obtainable by making reasonable inquiries.
1.1.3.Examined statutory requirements and satisfied themselves they are not participating in any anti-competitive, collusive, deceptive or misleading practices in structuring and submitting their application.
1.1.4.Satisfied themselves as to the correctness and sufficiency of their applications and that their application prices are GST inclusive and cover the cost of complying with all conditions of application and matters and things necessary for due and proper performance and completion of work described in the application documents (or if the goods or services are GST exempt, provided reasons for this).
1.1.5.Complied with the Competition and Consumer Act 2010 and Australian Competition & Consumer Commission (ACCC) guidelines on price exploitation relating to the introduction of the new tax system from July 1 2000.
1.2Evaluationprocess
1.2.1Clarification of application: Where, in the opinion of the department, anapplication is unclear, the department may seek clarification from the applicant. Failure to supply clarification to the satisfaction of the department may render the application liable to disqualification.
1.2.2Notification: All applicants may be advised in writing of the final outcome of the application evaluation, including the identity(s) of the successful applicant(s).
1.2.3Acceptance: Non complying applications may be rejected. The department is not obliged to accept allapplications and reserves the right not to accept any application.
1.3Request for application
1.3.1.Status: This Invited Call for Submission (ICS) is not an offer. This ICS is an invitation for persons to submit anapplication for the provision of the goods and/or services set out in this ICS.
1.3.2.Accuracy: While all due care has been taken in connection with the preparation of this ICS, the department does not warrant the accuracy of the content of the ICS and the Department will not be liable for any omission from the ICS.
1.3.3.Additions and amendments: The department reserves the right to change any information in this ICS, including the conditions of applying and the application evaluation process, or to issue addenda to this ICS, or to make changes to the Department Agreement attached to this document.
1.3.4.Representations: Verbal explanations, representations or instructions given to applicants shall not bind the department. No explanation, representation or instruction made by or on behalf of the department in relation to the ICS (or its subject matter) will be binding on the department unless that explanation, representation or instruction is expressly set out in this ICS or confirmed in writing by the department.
1.3.5.Explanations:
•Reference in this document to a contract means the agreement included with this document (“Department Agreement”), unless otherwise indicated.
•Reference to the department means the Department of Health and Human Services, unless otherwise stated.
1.3.6.Confidentiality: All persons (including applicants) obtaining or receiving the ICS and any other information in connection with the ICS or the application process must keep the contents of the ICS and such other information confidential. The department may require persons and organisations wishing to access or obtain a copy of this ICS or certain parts of it to execute a deed of confidentiality (in a form required by, or satisfactory to, the department) before or after access is granted.
1.4Financial assessments
1.4.1The department reserves the right to engage a third party to carry out assessments of applicants’ financial, technical, planning and other resource capability.
1.5Format of response
1.5.1The Guidance Pack contains Returnable schedules which must be completed. Applicants must address their responses to the specifications and will be assessed against the evaluation criteria.
1.6Legal entity
1.6.1Applicants must provide proof of their legal status. The department can only enter into a legal agreement/contract with a legal person, being either a natural person (who is at least 18 years of age, with mental capacity to understand the agreement, and not under any order or bankrupt), or an organization/agency with legal capacity establisher under:
•The Associations Incorporation Reform Act 2012 (Vic);
•The Co-operatives National Law (Victoria);
•The Corporations Act 2001 (Cth);
•The Health Services Act 1988 (Vic);
•The Trustee Act 1958 (Vic); or
•An individual Act of Parliament.
1.6.2The department prefers to deal with suppliers who have an Australian Business Number (ABN), unless there is clear evidence that the relevant supply is not assessable for income tax purposes (hobby or recreational interest).
1.7Form and application of agreement
1.7.1The successful applicant will be required to enter into the department’s applicable form of agreement.
1.7.2A contract for delivery or provision of goods or services described in this document does not exist until both parties have executed the applicable Department Agreement.
1.8Probity of personnel:
1.8.1Depending on the nature of the services being provided, the successful bidder may be required to ensure that its personnel engaged in providing services to the department have a current police check and/or Working with Children Check.
1.8.2The successful applicant(s) and its/their personnel will be required to comply with the Code of Conduct for Victorian Public Sector Employees where the contractor(s):
•Supervise(s) public sector employees;
•Undertake(s) work that is of a similar nature to the work undertaken by public sector employees at a premise or location generally regarded as a public sector workplace; or
•Use(s) or has access to public sector resources or information that are not normally accessible or available to the public.
1.8.3Contractors will be required to comply with appropriate document retention practices, which may include long-term storage of documents for up to 25 years.
1.9Statement of departures
1.9.1Applicants must state in their application that there are no departures from the specification of this document or the terms and conditions of the Department Agreement attached to this document or, where there are departures to these sections, submit with their application a tabulated statement detailing the departures in order of the relevant clauses.
1.9.2By submission of an application in response to this document, applicants are deemed to have accepted these Conditions of Application.
1.9.3The Department reserves the right, in its sole discretion, to accept or reject proposed departures and to make any changes to the attached Department Agreement or to the Application Specification.
2.Lodgement of applications and closing time
CLOSING TIME: Applications must be lodged by 5:00pm on 15 May 2017.
The Closing Time of 5:00pm is defined as 5:00pm Australian Eastern Standard Time, or 5:00pm Australian Eastern Daylight Saving Time, as determined by Telstra’s Recorded Time Service (phone 1194).
2.1Applicants must lodge their entire application electronically via email at the nominated email address and by the Closing Time (Note: Applicants will receive an email acknowledging receipt of the application).
2.2Late, posted, physically submitted, facsimiled or incomplete applications will not be accepted.
2.3Department officers cannot accept responsibility for lodging applications on behalf of applicants.
2.4Applications must be signed and dated by an authorised officer of the applicant.
2.5All applications must be in the English language.
3Late applications
3.1Applications must be lodged by the Closing Time.
3.2Applications lodged after the Closing Time or lodged at a location or in a manner that is contrary to that specified in this document will be disqualified from the application process and will be ineligible for consideration.
3.3The Closing Time may be extended by the department in its absolute discretion by providing written notice to registered applicants, or by email.
3.4However, a late application may be accepted where the applicant can clearly demonstrate (to the satisfaction of the Department’s Chief Procurement Officer) that late lodgement of the application was caused by a system interruption of the email service or a major/critical incident that hindered the delivery of their application documentsandthe department’s Chief Procurement Officer determines that the integrity of the application process will not be compromised by accepting an application after the Closing Time.
3.5The determination of the department as to the actual time that anapplication is lodged is final. All applications lodged after the Closing Time will be recorded by the department and will only be opened for the purposes of identifying a business name and address of the applicant.
3.6The department will store late applications in a secure location and promptly inform anapplicant that their application was late and could not be considered. Late applications will be returned at the conclusion of the application process, or at a time determined by the department.
4Requests for further information
4.1Clarification of application processes
4.1.1Prospective applicants may telephone the department’s designated officer on the contact telephone number as specified in the Application Cover Page to clarify matters relating to the application process. Oral explanations or instructions given to prospective applicants shall not bind the department.
4.2Clarification of specification or additional Information
4.2.1Requests for clarification of application specifications or additional information must be made in writing via email, marked ‘confidential’, to the contact person at the email address as specified in the Application Cover Page.
4.2.2All requests for clarification or for additional information must be lodged by the nominated date (refer to the Guidance Pack cover page) to allow sufficient time for response and information to be provided to all parties requesting Application documentation. The response of the department to requests for clarification or additional information is entirely at the discretion of the department and the department reserves the right not to respond to any question or request, irrespective of when such question or request is received. In any event, the department will not provide information later than three days before close of application.
4.2.3Except where the department is of the opinion that issues raised apply only to an individual applicant, answers provided by the department to applicant requests for clarification or additional information will be made available (without identifying the source of the inquiry) to all parties who have requested application documentation.
4.3Additional information required by the department
4.3.1If additional information to that contained in anapplication is required by the department when applications are being considered, written information and/or interviews may be requested to obtain such additional information at no cost to the department.
4.3.2The name and telephone number of an officer or employee of the applicant capable of clarifying technical and commercial aspects of the application must be provided with the application.
4.3.3Applicants may be required to complete and submit a Victorian Industry Participation Policy (VIPP) Plan. The department will provide applicants with instructions and further conditions re submission of VIPP plans at that time.
4.3.4The department may invite some or all applicants to give a presentation to the department in relation to their applications, including (where the ICS relates in whole or in part to goods) demonstration of the goods. The department is under no obligation to invite any presentations from applicants.
4.3.5In addition to presentations, the department may request some or all applicants to:
•conduct a site visit;
•provide references; and/or
•make themselves available for panel interviews.
4.4Negotiations and offers
4.4.1The department is under no obligation to conduct any negotiations with applicants.
4.4.2The department may elect to engage in detailed discussions and negotiations with any one or more applicants, with a view to maximising the benefits of the applications submitted.
4.4.3As part of this negotiation process, the department may request such an applicant to improve one or more aspects of their application, including any technical, financial, corporate or legal components.
4.4.4Applicants may be invited by the department to submit a best and final offer in relation to all or certain aspects of their respective applications.
4.4.5The department is under no obligation to give an applicant the opportunity to submit a best and final offer. If the department chooses to give an applicant the opportunity to submit a best and final offer, it is under no obligation to give notification before the Closing Time that such opportunity will be given.
4.4.6Notwithstanding the possibility that the department may give an applicant the opportunity to submit a best and final offer, an applicant should be aware that the department will, in conducting its evaluation of applications, rely on all information (including all representations) contained in such applications. applicants are therefore encouraged to submit their best and final offers in the first instance.
4.4.7Any one or more applicants may be required to submit an executed contract based on the Application as part of their best and final offer. Unless and until the department executes such contract, submission of a contract capable of acceptance by the department does not and will not be taken to give rise to a binding contract (expressed or implied) between an applicant and the department.
5Reservations
5.1 Withdrawal from process
5.1.1The department reserves the right to withdraw the application described in this document for any reason, prior to the signing of any Agreement with any party for the delivery of goods and/or services described in this document. In the event of a withdrawal of the application, the department shall not be liable for costs or expenses incurred by anapplicant or prospective applicant in preparing anapplication or participating in the application process.
5.2Negotiation
5.2.1The department may, at its absolute discretion, decide not to enter into pre-contractual or any negotiations with any applicant.
5.2.2Anapplicant is bound by its application (including the Statement of Departures to the Application Specification and Department Agreement forming part of the applicant’s response) and, if selected as a successful applicant, must, if requested by the department, enter into an agreement (contract) on the basis of the application without negotiation.
5.2.3The department is under no obligation to appoint a successful applicant or applicants, or to enter into a contract with a successful applicant or any other person. For the avoidance of any doubt, in these circumstances the department will be free to proceed via any alternative process.
5.2.4The department may conduct a debriefing session for all applicants (successful and unsuccessful). attendance at such debriefing session is optional.
5.3Department’s rights
5.3.1Notwithstanding anything else in this document, and without limiting its rights at law or otherwise, the department reserves the right, at its absolute discretion at any time, to:
•cease to proceed with, or suspend the application process;
•alter the structure, including the conditions of applying, the application evaluation process, and/or the Department Agreement;
•vary or extend any time or date specified in this ICS, including the timing of the application process;
•terminate the participation of any applicant or any other person in the application process;
•require additional information or clarification from any applicant or any other person or provide additional information or clarification;
•negotiate with one or more applicants in relation to some and not all of the scope of activity described and allow any applicant to alter its application;
•accept applications in relation to some and not all of the scope of activity described;
•appoint one, more than one or no organisation on the basis of the applications received;
•reject any application that does not comply with the requirements of this ICS; or
•consider and accept or reject any alternative applications.
5.4Applicant’s rights
5.4.1If the department exercises its right to amend the Department Agreement, the applicantmay submit to the department, an amended Part D5 Application Response ‘Application - Acceptance of Terms and Conditions’.
6Conflicts of interest
6.1Declaration
6.1.1Applicants must declare in writing to the department any matter or issue which is, may be perceived to be, or may lead to, a conflict of interest regarding their application or participation in supply of the goods and/or services described. applicants must provide a written strategy so that any conflict of interest will be avoided.
7Confidentiality and intellectual property
7.1Ownership of applications
7.1.1All applications and any accompanying documents become the property of the department.
7.2Ownership and use of information
7.2.1Ownership of all intellectual property in all information, reports or data provided by the department to applicants resides in the State of Victoria. The applicant shall not, without written approval of the Secretary to the Department, use the information or reports other than in the development of the Application or the performance of the assignment. Such information, in whatever form provided by the department or converted by the applicant, must be destroyed in a secure fashion following advice of the outcome of the application or at completion of the assignment.
8Disclosure
8.1Presumption to full disclosure
8.1.1The Victorian Government has a strong presumption in favour of disclosing contracts and, in determining whether any clauses should be confidential, specific Freedom of Information (FOI) principles (including a public interest test) will apply. The Government cannot pre-empt the workings of the FOI Act or constrain the Auditor General's powers to secure and publish documents as he/she sees fit.
8.2Disclosure of application and contract details
8.2.1Subject to this clause and the Conditions of Application, all documents provided by the applicant during the application process will be held in confidence so far as the law permits. Notwithstanding any copyright or other intellectual property right that may subsist in the application documents, the applicant, by submitting the application, grants to the department an irrevocable, royalty free licence to reproduce the whole or any portion of the application documents for the purposes of application evaluation.
8.2.2In submitting its application the applicant accepts that the department will publish (on the internet or otherwise) information including the name of the successful or recommended applicant(s), the value of the successful application(s) and the contractor’s name together with the provisions of the contract generally.