About Us > Procurement > Terms and Conditions of Purchasing Contracts
1. Definitions
The following words shall have the meaning so assigned to them:-
“Authorised Bodies” means The City of Edinburgh Council, Midlothian Council, their successors and assignees and other bodies as defined in Local Authorities (Goods and Services) Act 1970 as amended.
“Contract” means all the tender documents and such other documents submitted by the Contractor which comprised his tender (but only insofar as the said documents were accepted by the Council without qualification) together with any qualifications submitted by the Council and/or the Contractor which were agreed between the Contractor and the Council and which formed part of the Council’s acceptance holding the bargain as concluded.
“Contractor” means the person(s), firm or company who was awarded this Contract by the Council.
“Council” means The City of Edinburgh Council, its successors and assignees.
“Force Majeure Event” means an event beyond the reasonable control of either party, their employees, agents or contractors including but not limited to public calamity or act of God. For the avoidance of doubt industrial relations difficulties are not a Force Majeure Event.
“Losses” means all losses, liabilities, claims, actions, damages, proceedings, demands, costs, charges and expenses.
2. Performance Of Obligations
2.1 The Contractor shall perform all obligations under this Contract:-
2.1.1 With reasonable skill, care and diligence.
2.1.2 In accordance with the specification forming part of this Contract.
2.1.3 In accordance with all duties and obligations under and pursuant to any applicable Regulations, Statutory Instruments, Acts of Parliament and any European and/or British standards.
3. Quantities
Any quantities entered in the schedules are assumed quantities only and are not to be held as binding in any way.
4. Samples
4.1 If required, samples must be provided free of charge and are returnable at the Contractor’s cost.
4.2 The Council reserves the right to request further samples throughout the life of the Contract and these may be tested by the Central Purchasing Unit, the Department of Environmental and Consumer Services, the Council Public Analyst or any of the User Departments, to ensure that both specifications and standards are being maintained.
4.3 Access to Contractor’s premises, plant, vehicles, depots, warehouses or any other structure or asset not included in the aforementioned, either inside or outwith Edinburgh and the Lothians, may be required, in order that external quality audits may be made, samples, if required, obtained, and vendor assessment carried out. Such visits would be made by either representatives of the Central Purchasing Unit, the Department of Environmental and Consumer Services or the User Departments. The internal costs to the Contractor of such visits, inspections and external quality audits shall not be reclaimed from the Council.
5. Contract Security
5.1 Where the Contract or a division of part of the Contract exceeds ONE MILLION FIVE HUNDRED THOUSAND POUNDS STERLING (£1,500,00.00) in value or amount the Council may require contract security which may take the form of a performance bond and/or a parent company guarantee. A performance bond will be for the value of ten per centum of the total value or amount of the tender.
5.2 In certain circumstances, the Council may require such a security on lower value contracts.
6. Authorised Bodies
6.1 Goods, materials and services will also be supplied to the Authorised Bodies at the same rates and terms and conditions.
6.2 The responsibility for payment of any goods, materials or services so ordered shall rest solely with the Authorised Body placing the order or on whose behalf the order was placed by the Council, as will the resolution of any dispute of any kind whatsoever between the said Body and the Contractor arising out of or in any way connected with any such order.
7. Prices
7.1 Unless otherwise agreed with the Contractor, the price shall be fixed for the period of the Contract and will include all charges for delivery, regardless of mode of transport required or special equipment needed for, or in, the carriage of goods and materials. It shall also include any training of Council staff required.
7.2 The Contractor undertakes to advise the Council all price reductions covered by the Contract. Such reductions may come for a number of reasons including but not limited to overstocks, increased distributor discount, bulk purchases etc.
7.3 The Central Purchasing Unit has an agreement with its customers that no price alterations may be agreed in advance of written information having been sent by the CPU to all customers, following written agreement by both parties to the proposed price alterations between the Contractor and the CPU. Unless prior agreement has been reached between the Contractor and the CPU, price alterations may only be implemented from the first day of the month following the month in which the CPU’s customers are in possession of written information concerning such alterations. As that information is submitted on one day only, viz. the fifteenth day of the month, price alterations requested or agreements reached after the fifteenth day will have to wait until the first day of the month following the month in which agreed alterations would have been due to commence if agreement had been reached before the fifteenth day of the month.
7.4 The Council reserves the right to award all or any part of a contract to any Tenderer and to disregard any returned Tender on any reasonable grounds without penalty. Tenderers may tender for separate sections, although the final decision may be influenced by the degree of contract coverage.
7.5 Tenderers are obliged to offer prices for alternative products, where such products exist, which are free from harmful toxins, chemicals or gases or which are manufactured from recycled material and which are in any case proven to be less detrimental to the environment.
8. Ordering of Goods
The Contractor shall not supply any goods, materials or services without an order signed by an authorised official of the Council, unless other arrangements for ordering have been specifically agreed in writing in advance.
9. Permissions and Licences
The Contractor undertakes to obtain any necessary permissions and/or licences which may be required in the performance of this Contract.
10. Hire or Rent
The Contractor warrants that any vehicle, plant or other equipment that is subject to hire or rent as part of this Contract will be in a condition satisfactory to the Council and meets all relevant standards and statutory provisions.
11. Delivery
11.1 The Contractor undertakes to deliver all goods and materials on the agreed date or any extension thereof granted by the Council.
11.2 All goods and materials must be delivered at the Contractor’s expense to the address, at such times, and in such a manner as specified in the official order and in such quantities as are stated in the delivery note which must accompany all consignments. Goods which have been delivered will require to be signed for at the time of delivery.
11.3 Where stipulated, all packaging must be removed by the Contractor at his own expense
12. Examination and Quality of Goods
The goods delivered must bear the brand or label of the manufacturer and the Council may employ an expert to examine the same and advise on any that are rejected. In cases where goods are found by the expert to be in accordance with the specification, the cost of such examination shall be borne by the Council. With regards to goods which are found not to be in accordance with the specification and are rejected, the cost of such rejection shall be borne by the Contractor. Certain classes of goods cannot be examined immediately on delivery and the right to reject goods which may afterwards be found not to conform to specification is not to be prejudiced by any delay in examination. Damage to, or loss of, goods shall be the responsibility of the Contractor until delivery has been accepted by the Council, which may only follow the signature of an authorised official of the Council upon the Contractor’s receipt note.
13. Rejection of Unsatifactory Goods
13.1 All goods supplied in pursuance of this Contract will, in all respects, be in accordance with the specification and subject to the approval and satisfaction of the Council.
13.2 The Council may reject any supplies which are not, in their opinion, (which shall be final and binding on the Contractor), satisfactory and delivered in reasonable time.
13.3 Should any goods be rejected as not being satisfactory or not meeting the required specification or because of any neglect or negligence or undue delay in delivery, the Council shall be at liberty to obtain goods elsewhere in place of those rejected, and the extra cost thereof if any, together which any further damage or expense that may be caused to the Council by reason of such rejection shall be borne by the failing Contractor.
14. Accounts
14.1 Following despatch of goods or materials or the provision of services, a priced invoice bearing the order number for the goods, materials or services, must be rendered by the Contractor to the addressee designated in the official purchase order. Any invoice not so prepared may be returned to the Contractor for correction.
14.2 Payment for goods, materials or services will not be made by the Council on delivery of goods or materials or provision of services but only after the invoices have been checked and passed for payment by the Council. Unless otherwise determined, payment shall be made by the Council within 28 days of receipt of the invoice.
15. Commodity Usage Information
The Contractor is required to submit periodic returns detailing actual supply of contracted items. The frequency and content of these returns will be mutually agreed between the parties prior to the commencement of the Contract.
16. Health And Safety
The Contractor shall at all times have regard for the health and safety of all persons employed or engaged by him and shall comply with all health and safety legislation, guidance and any health and safety policies or codes of practice adopted by the Council and notified to the Contractor.
17. Assignment
The Contractor is not permitted to assign or sub-contract all or any part of this Contract without the prior written consent of the Council.
18. Variations
No variations of any of the terms or conditions of this Contract shall be effective and valid unless in writing by or on behalf of the Council and the Contractor.
19. Invalidity
The invalidity, illegality or unenforcebility in whole or in part of any of the terms and conditions of this Contract shall not affect the validity, legality and enforceability of the remaining terms and conditions of this Contract.
20. No Agency or Partnership
Nothing in this Contract shall constitute or establish any relationship of agency or partnership between the Council and the Contractor.
21. Audit Access
For the purposes of examination and certification of the Council’s accounts or any examination pursuant to section 96 of the Local Government (Scotland) Act 1973 or any re-enactment or replacement of the Act or of the economic efficiency or effectiveness with which the Council has used its resources Audit Scotland or any auditor appointed by the Council pursuant to the Act may examine such documents as they may reasonably require which are owned, held or otherwise in the control of the Contractor and may require the Contractor to produce such oral and written explanations as the Council considers necessary and the Contractor will comply diligently with all such requests and requirements.
22. Entire Agreement
This Contract and the documents referred to herein contain the entire agreement between the parties and supersedes all previous written or oral agreements relating to the subject matter.
23. Data Protection
The Contractor warrants that it has complied and will continue to comply with the Data Protection Act 1998.
24. Damages And Insurance
24.1 The Contractor undertakes to fully indemnify the Council against all Losses whatsoever reasonably incurred in respect of or in connection with any damage to property real or personal and any injury to persons including injury resulting in death, arising out of or in the course of or in connection with the performance of the obligations under this Contract attributable to the default or negligence of the Contractor.
24.2 The Contractor shall take out and maintain insurance policies as will adequately cover (to the satisfaction of the Council) the liability of the Contractor in respect of all the matters referred to in 24.1.
25. Termination
25.1 This Contract shall terminate with immediate effect in the event that:-
25.1.1 the Contractor commits a material breach of any of its obligations under this Contract and fails to remedy such breach (if the same is capable of remedy) within fourteen days of a written notice requiring it to do so.
25.1.2 the Contractor enters into any liquidation or composition with its creditors or has a resolution passed to wind up (otherwise than for the purposes of an amalgamation or reconstruction) or has a receiver or administrator appointed over all or any of its assets or ceases to permanently trade or threatens to do so.
26. Force Majeure
26.1 If either the Council or the Contractor fail to or delay in fulfilling any of their obligations under this Contract due to a Force Majeure Event then the party in default shall not be liable to the other for Losses incurred as a result of such breach.
26.2 The Contractor will endeavour to perform all obligations affected and not affected by the Force Majeure Event to the extent that they can be performed.
27. Arbitration
27.1 All questions or disputes between the Council and the Contractor arising out of or connected with this Contract, failing agreement, will be referred to a mutually agreed arbiter.
27.2 Failing agreement on the arbiter, the dispute will be referred to the President for the time being of the Law Society of Scotland.
27.3 The decision of either arbiter shall be final and binding on both parties
27.4 The application of section
28. Proper Law and Jurisdiction
The formation, construction, performance, enforcement and validity of this Contract shall be governed by the laws of Scotland and the parties hereby submit themselves to the exclusive jurisdiction of the Scottish Courts.
Issues to be Incorporated into the Special Notice of Standard Tender Documents
Clause 4 - Environmentally Friendly Products
“Tenderers are obliged to offer prices for alternative products, where such products exist, which are free from harmful toxins, chemicals or gases or which are manufactured from recycled material and which are in any case proven to be less detrimental to the environment.”
Clause 7.1 and 7.3 – Award
“The Council reserves the right to award all or any part of a contract to any Tenderer and to disregard any returned Tender on any reasonable grounds without penalty. Tenderers may tender for separate sections, although the final decision may be influenced by the degree of contract coverage.”
Clause 10.2 – Prices
“Where fixed prices are not feasible, Tenderers are required to state their alternative terms on the Qualifications of Offer section.” |
