GOVERNMENT CONTRACTS AND PROCUREMENT Public Officers Law Seminar : - - PowerPoint PPT Presentation

government contracts and procurement
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GOVERNMENT CONTRACTS AND PROCUREMENT Public Officers Law Seminar : - - PowerPoint PPT Presentation

GOVERNMENT CONTRACTS AND PROCUREMENT Public Officers Law Seminar : Hjh Nadia Davinia P.D Hj Abas www.agc.gov.bn Understanding the Law Deputy Senior Counsel 11 th and 13 th November 2017 Public Officers Law Seminar : Understanding the


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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

www.agc.gov.bn

GOVERNMENT CONTRACTS AND PROCUREMENT

Hjh Nadia Davinia P.D Hj Abas Deputy Senior Counsel

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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Overview

  • Introduction to Advisory Units under the Civil Division
  • Public Officers’ Responsibility
  • Importance of Contracts
  • Importance of Contract Management
  • Procurement and Contract Process
  • Contract Terms
  • Common and Practical Issues
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Advisory Units under the Civil Division

  • Advisory 1 and Advisory 2
  • Provide advisory services to Ministries, Departments and

Statutory Boards including:

  • drafting, vetting and negotiating contracts, Memorandums of

Understanding

  • statutory interpretations
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Importance of Contracts

  • Government procurement/projects utilise government funds and

for a public purpose.

  • Contracts:
  • provide a description of responsibilities.
  • bind parties to their duties.
  • establishes a time frame for duties.
  • secure payment.
  • provide recourse when the relationship falters.
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Importance of Contract Management

  • Money is involved.
  • Goods and Services are being procured.
  • Failure can result in:
  • Lack of compliance
  • Missed opportunities
  • Broken relationships
  • Costly Arbitration
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Public Officers’ Responsibility

  • Public Officers who manage projects must be familiar with

essential activities in contract planning, tendering and contract administration.

  • Sanctions in place against errant or negligent Public Officers who

have not properly discharged their duties in accordance with the procedural, regulatory and legal framework of tendering.

  • Public Officers are subject to Financial Regulations, 1983.
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Public Officer’s Responsibility

  • Regulation 286 FR : Responsibility of Public Officers for losses.
  • Regulation 339 FR : Responsibility of Heads of Departments to ensure that

Contracts are drawn up in accordance with current requirements particularly with regard to the provision for guarantees, penalties and damages.

  • Regulation 340 FR : Heads of Departments to ensure that any variation to a

Contract receives due authorisation.

  • PMO Circular 01/1984, 11/1984 and 06/2007 (Signatories)
  • MOF Circular 01/2014 (Performance Bond)
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Procurement and Contract Process

  • Tender
  • Contract Drafting
  • Pre or Post Tender
  • Negotiated Contract
  • Contract Signing
  • Contract Performance
  • Contract Closure/Closeout
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Tender/Invitation to Tender

4 sections:

  • Section 1: Instruction to Tenderers
  • Section 2: Government Requirements
  • Section 3: Schedules
  • Section 4: Contract
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Elements of a Contract

  • Offer
  • Acceptance
  • Consideration
  • Intention to create legal relations
  • A contract does not have to be formed in a single document

(where Party A and Party B sign on the same piece of paper.)

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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Contract Format

(1) Main Contract

  • Contains general agreed terms
  • Usually not changed

(2) Schedules

  • Contains specific information
  • Project specific
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Contractual Documents

  • Agreement for the Purchase of Goods and Services
  • Master Supply and Services Agreement
  • Consultancy Services Agreement
  • Technical Services Agreement
  • Construction/Building & Civil Work Agreement
  • Non-Disclosure Agreement
  • Tenancy Agreement
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Contract Terms

  • Parties
  • Commencement Date
  • Type of Procurement
  • Scope of Services/Specification of goods
  • Project Schedule
  • Payment Schedule
  • Performance Bond (if any)
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Contract Terms

  • Liquidated Agreed Damages
  • Acceptance Procedure
  • Intellectual Property Rights
  • Warranty
  • Maintenance
  • Termination
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Boiler Plate Clauses

  • Liability
  • Waiver
  • Confidentiality
  • Severability
  • Personnel
  • Entire Contracts
  • Gifts
  • Amendments and Variations
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Boilerplate Clauses

  • Force Majeure
  • Taxes and Duties
  • Notices
  • Assignment and Sub-contract
  • Compliance with Law
  • Collusion
  • Conflict of Interest
  • Indemnity
  • Governing Law and Dispute Resolution
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Common and Practical Issues

  • Performance before contract signed
  • Backdating of contracts
  • Performance Bond – MOF Circular 1/2014
  • Liquidated Damages
  • Delivery and Acceptance of Services and Goods
  • Verification and supporting documents
  • Timing
  • Delays and Liquidated Damages
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Common and Practical Issues

  • Payment
  • Stamp Duties
  • Indemnity and Liability
  • Termination for Convenience
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Public Officers’ Law Seminar : Understanding the Law 11th and 13th November 2017

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Contract Closure/Closeout

  • The process for completing and settling each contract
  • Ensure that all deliverables are received and services performed as per the agreement
  • Documenting final acceptance
  • Considering any outstanding obligations from either party
  • Considering any outstanding claims or issues
  • Ensuring that final payment is made
  • Collecting Liquidated Damages and returning Performance Bond
  • Ensuring that contract documents are filed
  • Ensuring certifications, warranty, spare parts list, operation manuals and training have been

provided

  • Procedures for record maintenance
  • Post contract review meeting for evaluation
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QUESTION AND ANSWER SESSION

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THANK YOU