Viva Energy Standard Tendering Conditions

Introduction

Capitalised terms and phrases used in these Tendering Conditions are defined in Section 12 below. These Tendering Conditions apply where Viva Energy Australia Pty Ltd or any of its Affiliates (Viva Energy) is seeking quotes, tenders or offers from suppliers to enter a Contract, unless the Invitation Documents issued by Viva Energy states that other conditions of tendering apply.

1. Invitation process

   Supplier acceptance

   1. By participating in the Invitation Process, the Supplier accepts these Tendering Conditions.

   2. By submitting an Offer, the Supplier offers to enter a Contract with Viva Energy under which the Supplier will provide Goods, Services and Deliverables to Viva Energy and acknowledges that Viva Energy may accept the Offer during the Offer Validity Period.

      Viva Energy decisions

   3. Viva Energy may make any changes to the Invitation Process in its absolute discretion, this may include: (a) adding, deleting or modifying the terms and conditions applicable to the Invitation Process, including in respect of these Tendering Conditions and/or the proposed Contract;
      (b) adding or changing Requirements;
      (c) amending dates including extending the Closing Date;
      (d) amending the evaluation criteria stipulated in the Invitation to Offer (if any) and/or

      Without limitation, Viva Energy may, during the Invitation Process: (i) consider, accept or reject an offer received after the Closing Date;
      (ii) consider, accept or reject non-Conforming Offers, alternative or innovative offers, offers in part, or multiple offers;
      (iii) reject any or all offers;
      (iv) accept an offer that did not progress through all phases of the evaluation process;
      (v) exercise discretion in evaluating any subjective evaluation criteria;
      (vi) negotiate with one or more Suppliers and allow any Supplier to vary its offer;
      (vii) interview, negotiate or hold discussions with any Supplier on any matter contained (or proposed to be contained) in an offer to the exclusion of others;
      (viii) request some or all Suppliers to conduct site visits, provide references and additional information, and/or make themselves available for panel interviews; and (ix) conduct checks on the Supplier or request the Supplier to substantiate to Viva Energy’s satisfaction information supplied by the Supplier during the Invitation Process.

   4. The Supplier will not make any claim in connection with a decision by Viva Energy to exercise or not to exercise any of its rights in relation to the Invitation Process.

      Proposed contract

   5. Viva Energy reserves the right, at any time during the Offer Validity Period or during the term of any Contract (subject to the terms and conditions of the Contract) established as a result of this Invitation Process to:

      (a) engage other suppliers for the supply of the Goods, Services and other Deliverables the same or similar to the deliverables and
      (b) enter into Contracts with other suppliers for the supply of Goods, Services and Deliverables, notwithstanding that the other suppliers did not participate in the Invitation Process, for any reason.

      Information provided by Viva Energy

   6. Statistical and other data provided by Viva Energy or accessed by the Supplier in connection with this Invitation Process is not to be construed as a guarantee that Viva Energy will provide any business to the Supplier.

   7. The Supplier shall make no claim for anticipated profit or for loss of profit because of any difference between:

      (a) the data provided by Viva Energy or otherwise accessed by the Supplier to assist the Supplier in compiling an offer; and
      (b) the volume of goods or services required by Viva Energy and so provided by the Supplier during the period of the Contract.

      No process contract

   8. The conduct of the Invitation Process does not give rise to any legal or equitable relationship.

   9. A Supplier will not be entitled to claim compensation or loss from Viva Energy for any matter arising out of the Invitation Process, including but not limited to any failure by Viva Energy to comply with these Tendering Conditions.

2. Invitation Documents

   Supplier’s responsibility to check Invitation Documents

   1. It is the responsibility of Suppliers to ensure that they have received all the documentation detailed in the Invitation Process. The Supplier is responsible for making its own investigation and assessment about all matters relevant to the Invitation Process, the Requirements, the accuracy of all information and documents provided by or on behalf of Viva Energy, and all other matters relevant to the Supplier’s offer.

   2. Should Suppliers identify any discrepancy or inconsistency between any of the Invitation Documents, Suppliers must notify Viva Energy in writing of the details of the discrepancy or inconsistency, and Viva Energy may issue Addenda and supplementary notices to amend or clarify the Invitation Documents, in whole or in part, if required.

      Typical Invitation Documents

   3. The Invitation Documents will typically comprise the following parts and steps, depending on the nature, complexity and value of the Goods, Services and/or Deliverables that Viva Energy is seeking to procure:

      (a) Invitation Document;
      (b) Briefing sessions (if required);
      (c) Enquires made by Suppliers;
      (d) Supplementary notices and other information released by Viva Energy (if applicable);
      (e) Required response documentation submitted by Suppliers by the Closing Date;
      (f) Further information requests by Viva Energy (if required) and responses by Suppliers (if applicable);
      (g) Negotiations and discussions with all or shortlisted Suppliers (as required) by Viva Energy;
      (h) Notification to successful Suppliers (and notifications to unsuccessful Suppliers) by Viva Energy; and
      (i) Finalisation of the proposed Contract and commencement of provision of Goods, Services and/or Deliverable under Contract (as applicable).

3. Supplementary notices, deferral or cancellation of the Invitation Process

   1. As explained in section 1.3 above, Viva Energy may, at its own discretion and without recourse from any Supplier or any other third party, choose to make changes to the Invitation Process – including deferral or cancellation of the Invitation Process or the Invitation.

   2. If Viva Energy does make changes to the Invitation Process, Viva Energy will issue Addenda, supplementary notices or other communications to Suppliers participating in the Invitation Process.

   3. Suppliers must provide up-to-date contract information to receive addenda, supplementary notices or other communications from Viva Energy in respect of the Invitation Process.

4. Supplier costs

   1. Participation in the Invitation Process is at the Supplier’s costs.

   2. Viva Energy is not required to make payment to the Supplier as compensation or otherwise in relation to the Invitation Process in any circumstances, for any reason. Without limitation Viva Energy will not pay expenses incurred by Supplier in the preparation of their offer, tender or quotations.

5. Communications

   1. Suppliers must direct all communication and enquiries concerning the Invitation to the Viva Energy contact person named in the Invitation Documents.

   2. Unauthorised communication by a Supplier with any other employee or agent of Viva Energy in respect of the Invitation may lead to their Offer being rejected.

   3. Further if any person (on behalf of a Supplier) makes an attempt to canvass, solicit or approach any member of Viva Energy (other than the named contact person) or another Supplier on any matter relating to, or arising out of, this Invitation, the Supplier’s Offer will be liable to be rejected, and the Supplier may be excluded from being invited to participate in any subsequent Invitation Process for a given period, or indefinitely, at the discretion of Viva Energy. (Note that Viva Energy retains discretion as to who it invites to participate in any Invitation Process.)

6. Compliance and alternative offers

   Compliance with Invitation Documents

   1. Suppliers are required to submit their Offers strictly in conformity with the Invitation Documents.

   2. Suppliers may include qualifications, reservations, changes or other matters which would cause the Offer to fall outside the stated Requirements provided they do not prevent the Goods, Services and/or Deliverables the subject of the Offer from being fit for the purpose specified by Viva Energy in the Invitation Documents. Full details, including drawings and specifications, of any such matters proposed for consideration must be clearly marked: “Deviations from Requirements”.

      Non-compliance

   3. Non-compliance in any respect with any of these Tendering Conditions may render the Supplier’s Offer liable to be rejected.

      Alternative offers

   4. Suppliers are encouraged to submit alternative bids which they consider would be of interest/value to Viva Energy. Any such alternative bid must be:

      (a) separated from the Conforming Offer;
      (b) clearly marked: “Alternative Offer”;
      (c) fit for purpose and industry-proven; and
      (d) supported with full details, including drawings and specifications and all other information that will assist Viva Energy’s evaluation.

      Negotiations and clarifications

   5. During the Invitation Process. Viva Energy may negotiate with, or seek clarifications from, one or more Supplier who have submitted an Offer (whose Offer has not been excluded from evaluation). If a Supplier fails to provide a clarification within the time stipulated by Viva Energy, Viva Energy may nevertheless proceed to assess the Offer as originally submitted. A Supplier cannot use the clarification or negotiation process to materially amend their Offer.

7. Offer Validity Period

   1. The Supplier’s Offer must remain valid and open for acceptance by Viva Energy for the Offer Validity Period, which unless stated otherwise in the Invitation Documents shall be ninety (90) days from the Closing Date.

   2. On expiry of the Offer Validity Period, the Supplier may withdraw its Offer by notice in writing to Viva Energy.

   3. At any time before the expiry of the Offer Validity Period, Viva Energy may request and obtain an extension to the Offer Validity Period.

8. Pricing

   Use of Pricing Forms

   1. Unless otherwise required by the Invitation Documents, Suppliers are required to fill in the template pricing schedule, sheets and other forms included in the Invitation Documents (‘Pricing Schedules’) and return them as part of their Conforming Offer.

      Breakdown of pricing

   2. Separate prices must be submitted for each item specified in the Pricing Schedules, including those items where no estimated quantities are shown.

   3. The failure to provide a price for all items specified in the Pricing Schedules may result in an Offer being excluded from the Invitation Process.

   4. Prices must be stated in Australian Dollars. If items comprising the Goods, Services and Deliverables are to be sourced from overseas and are paid in foreign currency by the Supplier, the Supplier must detail the foreign currency amount together with the exchange rate basis used to calculate the price if the Offer in Australian Dollars. Viva Energy reserves the right to negotiate in source currency where appropriate to do so.

   5. Prices must be stated exclusive of GST (noting GST – as applicable to the Goods, Services and Deliverables - may be charged by the Supplier in accordance with the terms and conditions of the Contract).

      Quantities

   6. All quantities shown (unless explicitly mentioned) are approximate only and do not bind Viva Energy to purchase any quantity. Indicative quantities may be used for assessment purposes.

      All inclusive

   7. Unless otherwise required in the Invitation Documents pricing is all-inclusive of:

      (a) all costs required to provide the Goods, Services and Deliverables including labour, materials, transport, freight, travel, overheads, out of pocket expenses, third party costs, profits and charges;
      (b) All other fees, duties (including customs duties), charges (including governments charges) and taxes (other than GST) applicable to the Goods, Services and Deliverables.

   8. The Supplier is responsible for correctly identifying tariff items and the rates for imported items (if any) and must use their best endeavours to minimise any customs or duty payable. This includes obtaining a concession on duty rates such as tariff concession order rates and/or policy bylaw rates. Any additional duty above the nominated rate/amount will be at the tenderer’s cost. The full benefit of any refund or drawback of customs duty must be passed through to Viva Energy.

9. Acceptance of Offers and entering a Contract

   Acceptance of Offers

   1. Acceptance of an Offer is effective until such time as the successful Supplier has received an official notification from Viva Energy that the offer has been accepted. Viva Energy is not obliged to accept the lowest, or any other bid.

   2. Viva Energy may accept an Offer in full or in part and Viva Energy reserves the right to divide the scope of supply amongst suppliers.

   Entry into a Contract

   1. The successful Supplier (if any) will be required to enter a contract with Viva Energy for the supply of the Goods, Services and Deliverables.

   2. No contractual relationship or other obligation arises between Viva Energy and a Supplier, for the supply of the Goods, Services or Deliverables, until Viva Energy and the successful Supplier sign the Contract. This applies, despite any oral or written advice to a Supplier that its offer, quote or tender is successful or has been or will be accepted by Viva Energy.

   3. Commencement of the provision of Goods, Services and Deliverables should not occur until Viva Energy has issued the Supplier an official purchase order referencing the signed Contract.

10. Confidentiality and privacy

    Confidentiality

    1. All drawings, specifications, and other information (“Information”), printed or graphic, contained in the Information Documents, or obtained by the Supplier from Viva Energy or its Affiliates are confidential to Viva Energy and the Supplier shall:

       (a) keep such Information confidential;
       (b) not disclose it except to its personnel on a need-to-know basis, or to the extent required by law or to its professional advisers; and
       (c) only use such Information for the purpose of assessing whether or not to participate in the Invitation Process and preparing and submitting its Offer.

    2. Suppliers shall not copy or reproduce any Information except when, preparing and submitting their Offer, and then only to the extent that it is reasonably necessary to do so.

       Privacy

    3. If the Supplier collects or has access to any Personal Information in connection with the Invitation Process, the Supply must comply as if it was Viva Energy with the Australian Privacy Principles in the Privacy Act, as applicable, in relation to that Personal Information, and comply with all reasonable directions of Viva Energy relating to the Personal Information

11. Miscellaneous

    Proposed sub-contractors

    1. If any part of the Goods, Services and Deliverable is proposed to be subcontracted to a third party, the Supplier is required to submit as part of its Offer, a list of the proposed sub-contractors applicable to specific items and components of Goods, Services and Deliverables.

    2. Viva Energy reserves the right to reject any proposed sub-contractors either before the Contract is in place, or during its fulfilment.

       Trustee companies

    3. If the Supplier is acting as trustee, the Supplier (in its capacity as trustee company) must:

       (a) warrant that it has authority to enter the Contract as trustee for the trust;
       (b) agree to be bound under the Contract as trustee and in its own right; and
       (c) make available on request such evidence as Viva Energy may require determining the scope of trust and financial substance of the Supplier.

       Referees

    4. If requested by Viva Energy, Suppliers must state three of their corporate customers for whom they provide goods, services and deliverables of a similar nature to those described in the Invitation, with reference contact names and phone numbers, length of association and annual volume of business.

    Goods, Services and Deliverables warranties

    5. Unless otherwise requested Suppliers are required to state in their Offer:

       (a) standard warranty conditions and nominated period which will apply to the Goods, Services and Deliverables;
       (b) where different conditions of warranty and periods apply to components of the Goods, Services and Deliverable specify each different warranty and period; and
       (c) where Goods comprise third party manufactured goods sourced by the Supplier the Supplier, if requested by Viva Energy shall provide an option for Viva Energy’s consideration of taking the full benefit of the third-party manufacturer warranty for item(s) those manufactured items separate from and additional to the Supplier’s standard warranties.

       Other Supplier warranties

    6. The Supplier warrants that neither it, nor its personnel have engaged in, or will engage in, any collusive, anti-competitive or similar conduct in connection with the Invitation Process, or any actual or potential Contract with any entity for goods and services like the Goods and Services.

    7. The Supplier warrants that all representations, declarations, statements, information and documents made or provided by the Supplier (including its representatives) in connection with the Invitation Process are complete, accurate, up-to-date and not misleading in any way.

       Publicity

    8. The Supplier must not make any public announcements or advertisement relating to the Invitation Process.

12. Definitions

    1. The following words and phrases have the below meanings.

    Addenda	means documents issued by Viva Energy to change, amend or clarify the Invitation and/or the Invitation Process
    Affiliates	means Viva Energy Australia Pty Ltd or any subsidiary (as defined in Section 46 of the Corporations Act 2001 (Cth) of Viva Energy Group Ltd.
    Closing Date	means the date and time stated in the Invitation, or such later time as may be notified by Viva Energy by which the Supplier must submit its Offer.
    Conforming Offer	means an Offer by the Supplier to enter Contract, which includes all the information requested, is received by the Closing Date, and meets all other requirements for offers/quotes set out in the Invitation.
    Contract	means a written agreement between Viva Energy and the Supplier for the Goods, Services and Deliverables (or part thereof), made up of the documents listed in the applicable contract conditions as forming part of the Contract.
    Goods, Services and Deliverables	means the goods, services and deliverables the subject of the Invitation and where the context requires the Offer.
    Invitation	means an invitation to offer issued by Viva Energy or any of its Affiliates to Suppliers seeking offers, expressions of interest, quotations or other proposals for the provision of goods, services and/or deliverables
    Invitation Documents	means the documents comprising the Invitation as issued by Viva Energy during the Invitation Process and includes Addenda.
    Invitation Process	means the process commenced by the issuing of a Request for Quote, Invitation to Tender/Offer or any other communication between Viva Energy and Supplier in relation to the potential supply of goods, services and deliverables, including the preparation and submission of any offer, the evaluation of offers, any negotiations and the acceptance or rejection of offers, and concluding upon entering the Contract with the Supplier or upon the termination of the process.
    Offer	means the proposal, quote, tender submitted by the Supplier (as applicable) in response to Viva Energy’s Invitation.
    Offer Validity Period	means the period stated in the Invitation in which the Offer is open for acceptance by Viva Energy.
    Personal Information	has the meaning given in the Privacy Act 1988 (Cth).
    Requirements	means the standards, specifications and other requirements for the Deliverables and the performance of the Supplier’s obligations under the Contract which are set out or otherwise referenced in the Invitation.
    Supplier	means :(a) for a Contract, the entity as described as such in the Contract; and (b) for an Invitation Process. a potential supplier invited to participate in the Invitation Process and any person who submits an Offer or otherwise participates in the Invitation Process.
    Tendering Conditions	means these standard tendering conditions.
    Viva Energy	means Viva Energy Australia Pty Ltd or any of its Affiliates