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Financial Management, Procurement and
Insurance
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Procurement and Tendering Procedures
Legal Provision
Section 20A: Supplies, goods and services
| (1) |
The procurement of all supplies, goods or services required
by a corporation in the exercise of its powers and the
performance of its duties under the deed of mutual covenant
(if any) or this Ordinance shall comply with such standards
and guidelines as may be specified in a Code of Practice
relating to such procurement. |
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| (2) |
Subject to subsection (2A), any supplies, goods or services
referred to in subsection (1) the value of which exceeds
or is likely to exceed -
| (a) |
the sum of $200,000 or such other sum in substitution
therefor as the Authority may specify by notice
in the Gazette; or |
| (b) |
a sum which is equivalent to 20% of the annual
budget of the corporation or such other percentage
in substitution therefor as the Authority may specify
by notice in the Gazette, |
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whichever is the lesser, shall be procured by invitation
to tender. |
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| (2A) |
Subsection (2) does not apply to any supplies, goods
or services which but for this subsection would be required
to be procured by a corporation by invitation to tender
(referred to in this subsection as "relevant supplies,
goods or services") if -
| (a) |
the relevant supplies, goods or services are of
the same type as any supplies, goods or services
which are for the time being supplied to the corporation
by a supplier; and |
| (b) |
the corporation decides by a resolution of the
owners passed at a general meeting of the corporation
that the relevant supplies, goods or services shall
be procured from that supplier on such terms and
conditions as specified in the resolution, instead
of by invitation to tender. |
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| (2B) |
Where any supplies, goods or services are required
under subsection (2)(b) to be procured by invitation to
tender, whether a tender submitted for the purpose is
accepted or not shall be decided by a resolution of the
owners passed at a general meeting of the corporation. |
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| (3) |
(Repealed 5 of 2007 s.16) |
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| (4) |
All tender documents, copies of contracts, accounts
and invoices and any other documents in the possession
of a corporation and relating to the procurement of supplies,
goods and services shall be kept by the corporation for
such period, being not less than 6 years, as the corporation
may determine. |
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| (5) |
A contract for the procurement of any supplies, goods
or services shall not be void by reason only that it does
not comply with subsection (1). |
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| (6) |
Where any supplies, goods or services are required
under subsection (2) to be procured by invitation to tender,
a contract for the procurement of the supplies, goods
or services which does not comply with subsection (2)
or (2B) -
| (a) |
subject to any resolution passed by the corporation
under paragraph (b) or any order made by the court
under subsection (7), shall not be void by reason
only that it does not comply with subsection (2)
or (2B); |
| (b) |
subject to any order made by the court under subsection
(7), may be avoided by the corporation by a resolution
of the owners passed at a general meeting of the
corporation but only for the reason that it does
not comply with subsection (2) or (2B). |
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| (7) |
In any legal proceedings in relation to a contract
for the procurement of any supplies, goods or services
to which subsection (2) or (2B) applies, the court may
make such orders (including whether the contract is void
or voidable) and give such directions in respect of the
rights and obligations of the contractual parties as the
court thinks fit having regard to all the circumstances
of the case, including (but not limited to) the following
factors -
| (a) |
whether the supplies, goods or services have been
procured by invitation to tender; |
| (b) |
whether a general meeting of the corporation has
been convened to consider the procurement of the
supplies, goods or services; |
| (c) |
whether the Code of Practice referred to in subsection
(1) has been complied with; |
| (d) |
whether the contract has been split, for the sole
purpose of avoiding the compliance of the requirements
in subsection (2) or (2B), from a contract which
should have been made for the procurement of supplies,
goods or services of greater value; |
| (e) |
whether the supplies, goods or services were urgently
required; |
| (f) |
the progress of any activities or works in relation
to the supplies, goods or services; |
| (g) |
whether the owners have benefited from the contract; |
| (h) |
whether the owners have incurred any financial
loss due to the contract and the extent thereof; |
| (i) |
whether the supplier of the supplies, goods or
services under the contract has acted in good faith; |
| (j) |
whether the supplier of the supplies, goods or
services under the contract has benefited from the
contract; and |
| (k) |
whether the supplier of the supplies, goods or
services under the contract has incurred any financial
loss due to the contract and the extent thereof. |
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| (8) |
For the purposes of subsection (7), where the court
makes an order that the contract is voidable at the instance
of the corporation, it shall also make an order that a
general meeting of the corporation be convened and held
in such manner as the court thinks fit, so as to decide
whether the contract is to be avoided. |
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| (9) |
For the avoidance of doubt, subject to section 29A,
any person who enters into a contract for the procurement
of any supplies, goods or services otherwise than in compliance
with subsection (2) or, if applicable, subsection (2B)
may be personally liable for any claims arising from the
contract. |
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Schedule 7: Mandatory Terms in Deeds of Mutual Covenant
paragraph 5: Contracts entered into by manager
| (1) |
Subject to subparagraphs (2) and (3), the manager shall
not enter into any contract for the procurement of any
supplies, goods or services the value of which exceeds
or is likely to exceed the sum of $200,000 or such other
sum in substitution therefor as the Authority may specify
by notice in the Gazette unless -
| (a) |
the supplies, goods or
services are procured by invitation to tender; and |
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| (b) |
the procurement complies
with the Code of Practice referred to in section
20A(1). |
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| (2) |
Subject to subparagraph (3), the manager shall not
enter into any contract for the procurement of any supplies,
goods or services the value of which exceeds or is likely
to exceed a sum which is equivalent to 20% of the annual
budget or such other percentage in substitution therefor
as the Authority may specify by notice in the Gazette
unless -
| (a) |
if there is a corporation -
| (i) |
the supplies, goods or services are procured
by invitation to tender; |
| (ii) |
the procurement complies with the Code of
Practice referred to in section 20A(1); and |
| (iii) |
whether a tender submitted for the purpose
is accepted or not is decided by a resolution
of the owners passed at a general meeting
of the corporation, and the contract is entered
into with the successful tenderer; or |
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| (b) |
if there is no corporation -
| (i) |
the supplies, goods or services are procured
by invitation to tender; |
| (ii) |
the procurement complies with the Code of
Practice referred to in section 20A(1); and |
| (iii) |
whether tender submitted for the purpose
is accepted or not is decided by a resolution
of the owners passed at a meeting of owners
convened and conducted in accordance with
the deed of mutual covenant, and the contract
is entered into with the successful tenderer. |
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| (3) |
Subparagraphs (1) and (2) do not apply to any supplies,
goods or services which but for this subparagraph would
be required to be procured by invitation to tender (referred
to in this subparagraph as "relevant supplies, goods
or services") -
| (a) |
where there is a corporation, if -
| (i) |
the relevant supplies, goods or services
are of the same type as any supplies, goods
or services which are for the time being supplied
to the corporation by a supplier; and |
| (ii) |
the corporation decides by a resolution
of the owners passed at a general meeting
of the corporation that the relevant supplies,
goods or services shall be procured from that
supplier on such terms and conditions as specified
in the resolution, instead of by invitation
to tender; or |
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| (b) |
where there is no corporation, if -
| (i) |
the relevant supplies, goods or services
are of the same type as any supplies, goods
or services which are for the time being supplied
to the owners by a supplier; and |
| (ii) |
the owners decide by a resolution of the
owners passed at a meeting of owners convened
and conducted in accordance with the deed
of mutual covenant that the relevant supplies,
goods or services shall be procured from that
supplier on such terms and conditions as specified
in the resolution, instead of by invitation
to tender. |
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