Government Contracts and Procurement Hjh Noor Sukhairiyani binti - - PowerPoint PPT Presentation

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Government Contracts and Procurement Hjh Noor Sukhairiyani binti - - PowerPoint PPT Presentation

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Government Contracts and Procurement Hjh Noor Sukhairiyani binti DSLJ Hj Md Kassim, Public Officers Law Seminar : Senior Counsel www.agc.gov.bn Understanding the Law Hjh Badariah binti Hj Yahya, 26 th and 27 th October 2016 Deputy Senior

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

Government Contracts and Procurement

Hjh Noor Sukhairiyani binti DSLJ Hj Md Kassim, Senior Counsel Hjh Badariah binti Hj Yahya, Deputy Senior Counsel

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Objective

  • Understanding Government’s procurement and approval process.
  • Understanding Government’s Contractual Documents.
  • Application to Government’s Contractual Documents.
  • Ensuring compliance to Government’s Contractual Documents and

approval process – contract management.

  • A fair and reasonable price for a high quality on-time Scope of Work.

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Government Contract Signatories

  • Who can sign Government contracts?
  • JPM Circulars – 01/1984, 11/1984 & 06/2007
  • Director?
  • Permanent Secretary?
  • Minister?

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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Public Officers’ Responsibility

  • Project manager must be familiar with essential activities in

contract planning, tendering and contract administration.

  • Sanctions in place against errant or negligent Government /

public officers who have not properly discharged their duties in accordance with the procedural, regulatory and legal framework

  • f tendering
  • Public officers are subject to Financial Regulations
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

The 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

26th and 27th October 2016

Procurement & 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

26th and 27th October 2016

Tender / Invitation to Tender

4 sections:

  • Section 1 – Instructions to Tenderer
  • Section 2 – Specifications
  • Section 3 – Requirements

(Schedules to be used)

  • Section 4 – Contract

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Elements of Contract Formation

  • Offer

& Mutuality – X offers, Y accepts

  • Acceptance
  • It is to note that a contract does not have to be formed in a

single document (where X and Y sign on the same piece of paper).

  • Considerations
  • Intention to create legal relations

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Contracting Instruments

  • Letter of award/ letter of appointment / letter of

commissioning/letter of offer/letter of acceptance

  • ‘Award’ / ‘appointment’ following:
  • Tender procedure
  • Non-tender procedure

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Contract Format

(1) Main Contract

  • Contains general agreed terms
  • Usually not changed

(2) Schedules

  • Contain specific information
  • Project specific

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

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Contractual Documents

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

26th and 27th October 2016

Contract Terms

  • Parties to the Contract
  • Commencement date / Duration of the Contract
  • Type of Procurement (services or goods – outright purchase /

leasing / hybrid)

  • Scope / Specifications of services or goods
  • Project Schedule
  • Payment Schedule
  • Performance Bond (if any)

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Contract Terms

  • Liquidated Agreed Damages
  • Acceptance Procedure
  • Intellectual Property Rights
  • Warranty (services included?)
  • Maintenance
  • Termination

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  • Commencement
  • Severity Level
  • Duration
  • Resolution time
  • Response times
  • Compensation
  • Down times
  • Local/Foreign support
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Boilerplate Clauses

  • Liability
  • Waiver
  • Confidentiality
  • Severability
  • Personnel
  • Entire Contract
  • Gifts
  • Amendments and Variations
  • Force Majeure

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  • Taxes and Duties
  • Notices
  • Assignment and Sub-contract
  • Compliance with Law
  • Collusion
  • Conflict of Interest
  • Indemnity
  • Governing Law & Dispute

Resolution

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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Common & Practical Issues in Contracts

  • 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

26th and 27th October 2016

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Common & Practical Issues in Contracts

  • Payment
  • Payment Schedule
  • Payment upon signing
  • Advance Payment Bonds
  • Verification and supporting documents
  • Stamp Duties
  • Indemnity & Liability
  • Termination for Convenience
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Public Officers’ Law Seminar: Understanding the Law

26th and 27th October 2016

Contract Closure/ Closeout

  • The process for completing and settling each contract
  • Ensuring 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 documentation 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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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

QUESTION AND ANSWER SESSION

Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

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Public Officers’ Law Seminar : Understanding the Law 26th and 27th October 2016

www.agc.gov.bn

sukhairiyani.kassim@agc.gov.bn badariah.yahya@agc.gov.bn

THANK YOU