Attachment no. 3 to Decree no. 10/14 Bochnia, 10.03.2014 r. CONTRACT AWARDING REGULATIONS FOR SHIPMENTS, SERVICES AND CONSTRUCTION WORKS by Stalprodukt S.A. located in Bochnia, Poland required for the realization of the project entitled Innovative, vertical revolution axis wind farm with 1,5 MW power output, equipped with a power conversion system allowing for a highly efficient windto-electrical energy conversion at low wind speeds subsidized as a part of a pilot enterprise by the National Centre for Research and Development Supporting scientific research and development works in demonstration scale DEMONSTRATOR+ Chapter I DEFINITIONS 1. The following terms appearing in this document refer to: Price as defined in the Prices Act (ustawa o cenach) of July 5, 2001 (Dz. U. Nr 97, poz. 1050 from 2002r. Nr 144, poz. 1204 and from 2003r. Nr 137,poz. 1302) Shipments this term refers to buying commodities, rights and other goods, particularly by means of sale contracts, Contracting Entity Executive this term refers to the Head of the Board Chief Executive of Stalprodukt S.A., The most favorable offer this term refers to the offer with the best price and other criteria referring to the object of the contract, Regulations this term refers to this document, 1
Construction works this term refers to the carrying out or designing and carrying out of construction works, as defined in the act of July 7, 1994 Construction law ( Dz. U. Z 2003r. Nr 207, poz. 2016 and from 2004r. Nr 6 poz. 41), Services this term refers to all services which cannot be classified as construction works or shipments, Contractors this term refers to a person, a legal entity or an organizationentity without legal representation, applying for an order, placing an offer or signing a sales contract, Contracting Entity this term refers to Stalprodukt S.A. in Bochnia, Poland, Terms of Reference (SIWZ) refers to Terms of Reference (SIWZ Specyfikacja Istotnych Warunków Zamówienia) or any other legal document presented to the Contractors in which the Contracting Entity specifies the terms and conditions for placing an order. Chapter II THE SUBJECT OF REGULATIONS 1. The following Regulations define the terms and mode of awarding a contract by the Contracting Entity, with the exception of public procurement, as defined by the appropriate act. 2. All actions in the course of the contract awarding procedure are to be carried out with respect to the Contracting Entity s inner regulations. 3. The following Regulations do not exempt the Contracting Entity from abiding the law. The legal responsibility for preparing and carrying out the contract awarding procedure, imposed upon the Contracting Entity Executive does not exempt other persons involved in the preparation of the contract awarding procedure from the responsibility for their respective duties. Chapter III TERMS OF AWARDING A CONTRACT 1. The Contracting Entity prepares and carries out the contract awarding procedures in a way, which guarantees fair competition, openness, transparency and equal treatment of Contractors. 2. All actions connected with the preparation and implementation of the contract awarding procedure are carried out by persons who guarantee impartiality and objectivity. 2
3. The contract awarding procedure can be granted only to a Contractor selected according to the rules presented in the Regulations. 4. The contract awarding procedure is open. 5. The Contracting Entity may restrict the access to the information connected with the contract awarding procedure in cases described in the Regulations. No confidential business information, as described in The Suppression of Unfair Competition Act, is released, providing that the Contractor does not want it to be released and declares that fact no later than the final date of receipt of tenders or forms. 6. Contract awarding procedure is carried out in Polish. The procedure can be carried out simultaneously in Polish and English if the Tender Committee deems such a solution valid. 7. The basic modes for entering the contract awarding procedure are: open tender and call for tender. Chapter IV ANNOUNCEMENTS 1. Announcements regarding the contract awarding procedure are published by the Contracting Entity on its website and message board. 2. If necessary, the Contracting Entity may publish an announcement in local press, nationwide press or in the Public Procurement Bulletin (Biuletyn Zamówień Publicznych). 3. The Contracting Entity maintains a record of every announcement published. Chapter V CONTRACT AWARDING PROCEDURE 1. The Contracting Entity 1. The contract awarding procedure is prepared and carried out by the Contracting Entity. 2. The Contracting Entity Executive is responsible for preparing and carrying out of the contract awarding procedure. Other persons involved in the preparation and carrying out of the contract awarding procedure are responsible for their respective duties. The Contracting Entity Executive may assign his / her duties, specified in this document, in writing, to the Contractor s employees. 3. If the order value exceeds 60 000 PLN, the Contracting Entity Executive organizes a tender committee to preparation and carry out of the contract awarding procedure. 4. The tender committee presents the Contracting Entity Executive with proposals to exclude a Contractor, refuse an offer and to choose the most favorable offer. The committee can also apply for invalidation of the contract awarding procedure or for awarding a contract. 3
5. The contract awarding procedure for orders valued less than 60 000 PLN is carried out by the Contracting Entity s Office of Purchases and Materials Management, with the help of the Department of Investments and Renovations, using the procedures utilized by the Contracting Entity. 6. If any action related to the preparation or carrying out of the contract awarding procedure requires special information, the Contracting Entity Executive, acting on his own initiative or prompted by the Tender Committee, can summon assessors. 2. Contractors 1. Applying for the contract awarding procedure is open to Contractors who: have the qualifications required for the realization of the order or have the necessary knowledge, experience, technical potential and persons qualified to realize the order. are in an economic and financial condition which guarantees successful realization of the order. are not excluded from the contract awarding procedure. 2. Contracting Entity cannot specify the conditions of application for the contract awarding procedure in a way, which would obstruct fair competition. 3. Contractors can join together when applying for contract awarding. In this case, the Contractors appoint an assignee who represents them in the course of the contract awarding procedure or contract signing procedure. The aforementioned Contractors assume group responsibility for carrying out the contract and for providing a performance guarantee. 4. The following entities are excluded from the contract awarding procedure: contractors who, in the recent years, inflicted damage by not realizing a contract or realizing it improperly and the damage was not repaired up to the start date of the contract awarding procedure, unless the failure or the improper realization were caused by circumstances for which the contractor does not assume responsibility, contractors going into liquidation or contractors whose bankruptcy has been announced, contractors who have tax arrears related to taxes, social security and health insurance contribution with the exception of cases in which the subject acquired an exemption by law, an adjournment of payment, decision to allow payment by installment or a full supersedence of the decision issued by a competent authority, natural persons lawfully sentenced for a crime committed in relation to a contract awarding procedure, bribery, crime against economic circulation or another crime committed for financial gain, general partnerships whose partner has been lawfully sentenced for a crime committed in relation to a contract awarding procedure, bribery, 4
crime against economic circulation or another crime committed for financial gain, legal persons, whose member of the executive body in office has been lawfully sentenced for a crime committed in relation to a contract awarding procedure, bribery, crime against economic circulation or another crime committed for financial gain, contractors who do not meet the criteria for entering the contract awarding procedure mentioned in par. 1, contractors involved in the preparation of the contract awarding process in question, contractors who presented false information, which influenced the outcome of the procedure in question, contractors who failed to provide the declaration of eligibility for entering the contract awarding procedure or documents confirming the aforementioned eligibility. 5. The Contracting Entity informs the Contractor about the exclusion from the contract awarding procedure, providing factual justification and justification based on the Regulations. 6. The offer presented by an excluded Contractor is considered rejected. 7. The Contracting Entity summons Contractors, who failed to provide the documents confirming the eligibility for entering the contract awarding procedure on time, to deliver the missing documents in specified time. This applies to a case in which the missing documents would invalidate the contract awarding procedure. 3 Preparation of the contract awarding procedure 1. The subject of the contract is to be described in a clear and complete way, using accurate and understandable terms and considering all the requirements and circumstances which can affect the preparation of the offer. 2. The Contracting Entity specifies the subject of the offer using project documentation (if present) and technical specification for the execution of the offer. 3. The basis on which the contract value is calculated is the total estimated remuneration paid to the Contractor, excluding Value Added Tax, established with due care by the Contracting Entity. 4. If the Contracting Entity allows partial offers or contract awarding in parts, with each part being subject of a separate contract awarding procedure, the contract value is equal to the combined value of all the parts. 5. The value of the contract is established on the basis of the client budget estimate, created during the preparation of the project documentation or on the basis of the projected costs. 5
6. Should any circumstances affect the contract value after it has been established, the Contracting Entity is obliged to change the value before the contract awarding procedure starts. 4 Terms of Reference (SIWZ) 1. Terms of Reference should contain at least: name and address of the Contracting Entity, mode of contract awarding, contract subject description, contract delivery date, description of the requirements for entering the contract awarding procedure and the description of the methods of their assessment, information about the declarations and documents which the Contractors have to provide for the Contracting Entity to prove their compliance with the requirements of the contract awarding procedure, information about the means of communication between the Contracting Entity and the Contractors and the method of documents and declarations delivery. names of persons eligible for contact with the Contractors, offer validity, description of the method of offer preparation, place and deadline for submitting offers, description of the criteria for selecting offers, the significance of each criterion and the method of assessing offers. requirements of the Performance Guarantee resolutions important for both sides, which will be included in the contract, general terms of contract or a contract template, if the Contracting Entity requires the Contractor to sign a contract on terms specified in such a template, information about the means of appeal available to the Contractor in the course of the contract awarding procedure. 2. The Contracting Entity requires the Contractor to specify the part of the contract, to be outsourced to subcontractors. 3. The Contractor may ask the Contracting Entity to explain the Terms of Reference. The Contracting Entity is obliged to reply with a suitable explanation, unless the request was delivered less than 3 days prior to the offer submission deadline. 4. The Contracting Entity publishes the explanation on its website, without revealing the source of the question. 5. In justified cases, the Contracting Entity may, at any time before the offer submission deadline, modify the content of the Terms of Reference. The modification is to be published without delay on the Contracting Entity s website. 6. The Contracting Entity publishes the Terms of Reference (SIWZ) on its website. 6
7. The Contracting Entity may request any kind of document which will allow the assessment of credibility of the submitted offer or the financial credibility of the Contractor. 8. All the expenses related to the submission of the documents requested by the Contracting Entity are to be covered by the Contractor. 5 MODE open tender 1. Open tender is a mode of contract awarding in which all the Contractors interested in submitting an offer can do so after the contract has been announced. 2. The Contracting Entity initiates a contract awarding procedure in open tender mode by publishing an appropriate announcement on a bulletin board in the Contracting Entity s registered office and on the Contracting Entity s website. 3. If necessary, the Contracting Entity also publishes the announcement in local or nationwide press and in the Bulletin of the Public Procurement Office. 4. The announcement mentioned in paragraph 2 contains at least: name and address of the Contracting Entity mode of contract awarding, website on which the Terms of Reference are published, mode of obtaining the Terms of Reference, contract subject description, contract delivery date, description of the terms of participation in the contract awarding process, criteria for offers assessment and their significance, place and deadline for submitting offers, offer validity, 5. If the order value does not exceed 60 000 PLN, the Contracting Entity establishes the deadline for submitting offers, taking into consideration the time needed for preparing and submitting an offer. The deadline cannot be shorter than 10 days from the date of contract awarding procedure announcement. 6. If the order value exceeds 60 000 PLN, the deadline for submitting offer cannot be shorter than 21 days from the date of contract awarding procedure announcement. 7. The Contractor submits, together with the offer, a declaration of compliance with the requirements of the contract awarding procedure and, if the Contracting Entity requests documents to prove the aforementioned compliance, the Contractor must provide them as well. 8. In the case described in paragraph 6, the Contracting Entity may establish a deadline shorter than 21 days, if there is an urgent need to award a contract. 7
6 MODE call for tender Call for tender is a mode of contract awarding in which the Contracting Entity invites the selected Contractors to submit an offer. 1. The Contracting Entity initiates a contract awarding procedure in call for tender mode by sending an invitation to submit offers to at least three Contractors, who provide shipments, services or construction works related to the subject of the contract. 2. An invitation to submit offers must contain at least: name (company) and address of the Contracting entity, mode of contract awarding, specification of the contract subject and the tender volume, contract delivery date, deadline for submitting offers, offer validity, other information required 7 MODE negotiations Negotiations are a mode of contract awarding in which the Contracting Entity negotiates the terms of the contract with the selected Contractor (Contractors), after a public announcement or an individual invitation to the contract awarding procedure. Negotiations can be preceded by a preliminary offer submission procedure. 1. The Contracting Entity can award a contract in negotiations mode, if at least one of the following circumstances occur: shipments, services or construction works can be provided by only one Contractor, for technical reasons of an objective nature, unforeseen, special circumstances beyond the Contracting Entity s control occur (it is impossible to meet the deadlines). contract awarding procedure in open tender mode was unsuccessful because no offers were submitted or all submitted offers were rejected and the terms of the contract were not significantly altered, in special cases, in which the nature of shipments, services, construction works or risk connected with them makes the assessment impossible, it is impossible to establish the characteristics of the contracted services in advance, in a way which would allow the Contracting Entity to choose the most favorable offer in open tender or call for tender mode, it is possible to award a contract for shipments on particularly favorable terms because of exit or disposal activities of another entity, enforcement proceedings or liquidation procedure, 8
if the order value does not exceed 60 000 PLN immediate execution of the contract is required 2. The Contracting Entity initiates a contract awarding procedure in negotiations mode by delivering an invitation to negotiations to the selected Contractor (Contractors) or by publishing an announcement. 3. Public announcement or an invitation to negotiations contains at least: name and address of the Contracting Entity mode of contract awarding, contract subject description, date and place of negotiations, deadline for submitting offers, other required information. 8 Other modes 1. The Contracting Entity Executive can decide to award a contract in another mode, not specified in the Regulations. In such a case, premises of application, method of conducting the contract awarding process, premises of offer rejection or premises of exclusion from the process and the method of selecting the most favorable offer will be specified in a suitable Official Order. 9 Selection of the most favorable offer 1. The Contractor can submit only one offer. 2. An offer is submitted in writing, under pain of invalidity. 3. The content of the offer must comply with the Terms of Reference. 4. The Contractor can amend or withdraw an offer before the deadline for submitting offers. 5. An offer submitted after deadline will be returned without opening, once the appeal term expires. 6. All the actions undertaken after submitting an offer, including orders to explain or complement the offer, replies to these orders, information about contractor exclusion, outcome of the awarding procedure, protests and corresponding replies and all actions related to legal remedies, must be submitted in writing. Submitting by fax or email is allowed. 7. The Contracting Entity rejects an offer if: content of the offer does not comply with the Terms of Reference, offer does not comply with the Regulations, submitting the offer is an act of unfair competition as described in the unfair competition law, offer contains an abnormally low price compared to the contract subject, offer was submitted by a Contractor excluded from the contract awarding process or not invited to submit an offer, offer contains errors in the calculation of the price /statutory regulations apply/, 9
Contractor didn t agree to correct the calculation error in the calculation of the price up to seven days after receiving the notice, offer is invalid on the basis of other regulations. 8. The Contracting Entity notifies the Contractor about the rejection of the offer, providing a suitable justification. 9. Contracting Entity selects the most favorable offer using the criteria for offer assessment, specified in the Terms of Reference. 10. Criteria for offer assessment: 10.1. Criteria for offer assessment are specified, each time, in the Terms of Reference. The most important criteria considered are: price, quality, technical specification, use of the best technologies available, lack of negative environmental impact, operational costs, maintenance, functionality etc. 10.2. Criteria for offer assessment cannot relate to the competences of the Contractor, especially to economic, technical or financial credibility. 11. If the most favorable offer cannot be selected because two or more offers contain the same price and other criteria for offer assessment, the Contracting Entity selects the offer with a lower price. 12. If the only criterion for offer assessment, in the course of a contract awarding procedure, is the price and the most favorable offer cannot be selected because the submitted offers contain the same price, the Contracting Entity orders the Contractors to submit additional offers in a term specified by the Contracting Entity. 13. Contractors submitting additional offers are not allowed to include prices higher than those specified in the first offer. 14. The Contracting Entity notifies the participating Contractors immediately after an offer has been selected, announcing the name (company) and address of the selected Contractor and the price included in the selected offer. 10 Invalidation of the contract awarding procedure The Contracting Entity invalidates the contract awarding procedure if: 1. All offers submitted were excluded or were submitted by an excluded Contractor. 2. The price of the most favorable offer exceeds the amount which the Contracting Entity can spend on financing the contract. 3. A significant change of circumstances occurred, causing a situation in which the contract awarding procedure or the contract execution are not in the Contracting Entity s interest anymore. 4. The contract awarding procedure is defective, making it impossible to sign a contract agreement. The Contracting Entity announces the invalidation of the contract awarding procedure to all participating Contractors simultaneously, providing justification. 10
11 Agreements 1. The Contracting Entity signs the contract agreement no sooner than seven days since the announcement of the selected offer but no later than the offer validity. 2. If the selected Contractor refrains from entering into the contract agreement or fails to provide the Performance Guarantee, the Contracting Entity selects the most favorable offer among the remaining offers without reassessing them, unless there are premises for invalidation of the contract awarding procedure. 3. If a significant change of circumstances occur, causing a situation in which the contract execution is not in the Contracting Entity s interest anymore, the Contracting Entity may withdraw from entering into the contract agreement up to 30 from the date of becoming aware of this change. In this case, the Contractor may only claim remuneration for the partial execution of the contract. 4. The Contracting Entity may claim a Performance Guarantee from the Contractor. 5. The purpose of the Performance Guarantee is to cover all the claims resulting from failed or improper execution of the contract agreement. If the Contractor assumed the role of a guarantor, the Performance Guarantee is also used to cover the claims resulting from the quality guarantee. 6. The Performance Guarantee can be provided by the Contractor in one or more of the following forms: money bank sureties bank guarantees insurance guarantees 7. Monetary Performance Guarantees are to be paid directly to the bank account specified by the Contracting Entity. 8. Monetary Performance Guarantees are deposited by the Contracting Entity on an interest account. The Contracting Entity returns the Performance Guarantee along with the interest resulting from the bank account agreement, deducting the bank commission for transferring the money to the Contractor s account and the account deposit fee. 12 Documentation of the contract awarding procedure 1. In the course of the contract awarding procedure, the Contracting Entity draws up a written protocol documenting the procedure ( or a memorandum on the selection of the Contractor), referred to as protocol later in this document. The protocol contains at least: contract subject description, information about the mode of contract awarding, information about the Contractors, the price and other important elements of an offer, choice of the winning offer. 11
information about the excluded Contractors, information about the rejected offers information about the invalidation of the contract awarding process. 2. Offers, expert opinions, statements, notifications, claims and all other documents and information submitted by the Contracting Entity and the Contractor (Contractors), along with the contract agreement, constitute the attachments to the protocol. 3. The protocol is open to the public. Attachments to the protocol are made public after the selection of the most favorable offer or after the invalidation of the contract awarding procedure. 4. The Contracting Entity is obliged to keep a copy of the protocol and the attachments for a period of ten years after the end date of the contract awarding procedures. They are to be kept in a way which guarantees their security and inviolability. 5. The Contracting Entity returns, on request, all the plans, drawings, projects, software etc. submitted by the Contractors whose offers weren t selected. 13 Appeal 1. Contractors are entitled to an appeal, if their legal interest in obtaining the contract suffered as a result of a violation of Regulations by the Contracting Entity. This applies to contract awarding procedures in which the order value does not exceed 60 000 PLN. 2. An appeal is filed with the Contracting Entity Executive through Tender Committee, no later than three working days after the Contractor becomes aware of the circumstances which constitute the basis for appealing, except for paragraph 5. 3. An appeal is considered as filed from the moment it is delivered to the Contracting entity in a way and time, which allows the entity to become familiar with its content. An appeal is to be delivered no later than 3 p.m. on the day which constitutes the deadline for appealing. 4. An appeal regarding the Terms of Reference is to be filed no later than three working days before the deadline for submitting offers but no later than 3 p.m. on the day which constitutes the deadline for appealing. 5. Filing an appeal is possible only before the signing of the contract. 6. An appeal filed past the deadline or filed by an unauthorized entity will not be considered. 7. An appeal should indicate the Contracting Entity s act or omission being questioned and should also contain a demand and a concise description of the claims, factual circumstances and legal circumstances which justify the appeal. 8. In case of appeals being filed after deadline for offer submission, running of the offer validity is suspended until the appeal is resolved. 9. The Contracting Entity informs the Contractors immediately about the suspension of the running of offer validity. 12
10. The Contracting Entity informs the Contractors participating in the contract awarding procedure about an appeal being filed, its content and claims included therein. 11. The Contracting Entity cannot sign the contract until the final resolution of the appeal. 12. An appeal is resolved within ten working days from the date of filing with the Contracting Entity. 13. When examining the appeal, the Contracting Entity Executive grants or rejects it. 14. In case the appeal is granted, the act in question is carried out once again. The Contract entity announces that fact to the participating Contractors. 15. The Contracting Entity informs the participating Contractors about the rejection of the appeal. 16. No further remedies apply, after an appeal has been rejected. 14 Final provisions The above regulations come into effect on the day of approval by the Contracting Entity Executive. 13