Black Hawk Request for Submission Conditions of Submission.pdf

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CONDITIONS OF SUBMISSION

RFS Number:  RFS/CASG/MLDS/2021/3  –  Possible  sale  of  S-70A-9  Black  Hawk  Aircraft  and
Associated Unique Inventory
Assets:
The Assets are up to a maximum number of 27 S-70A-9 Black Hawk Aircraft
(Aircraft), certain data and the associated available unique inventory of spare
parts (Inventory) (collectively, Assets).
The number and type of Assets available may vary due to the requirements of the
Commonwealth and Commonwealth commitments to other recipients, such as
museums. In addition, the Commonwealth will continue to utilise spare parts from
Commonwealth stores, and harvest spare parts from Aircraft as they are withdrawn
from service.  This will continue to affect the volume of Inventory and condition of
the available Aircraft during this RFS process and after any Deed of Transfer has
been signed.

Definitions:

(clause 1.1)
Inspection of
Assets:
Where practicable due to COVID-19 restrictions, the Commonwealth intends to
conduct Information Days at Defence Bases in Meeandah, Brisbane QLD and Oakey
(clause 1.8)
QLD. Attendance is optional. Only respondents who have provided a Non Disclosure
Deed Poll and the details set out in clause 1.8.5 will be invited to attend. The date(s)
and details for the Information Days will be provided to those respondents with the
invitation.
Submission
Respondents  must  return  the  completed  Response  Form  and  the  completed  and
Preparation:
physically  signed  Declaration  by  Respondent  (see  Annex  A  and  Annex  B  to  these
Conditions of Submission).
(clause 2.2)
Respondents should complete, sign and return to xxxxxxxx.xxxxxx@xxxxxxx.xxx.xx
as soon as possible and by no later than 9 April 2021 the Non Disclosure Deed
Poll  provided  with  this  RFS  in  Annex  D  before  being  eligible  to  receive  additional
information  relevant  to  this  RFS  and  to  enable  the  Commonwealth  to  organise
attendance for the Information Days.  Respondents should return the signed Deed
Poll as soon as possible to allow the Commonwealth sufficient time to process the
Deed  Poll,  organise  the  Information  Days  and  provide  the  additional  data  prior  to
the  Closing  Time.    Respondents  must  comply  with  the  terms  of  the  Deed  Poll  in
addition  to  the  terms  of  these  Conditions  of  Submission,  including  by  destroying
data  provided  by  the  Commonwealth  when  it  is  no  longer  required  by  the
Respondent  for  this  RFS.    Respondents  should  note  that  the  Non  Disclosure
Deed  Poll  is  intended  to  be  received  by  the  Commonwealth  before  the
submission is submitted.  A delay in providing the Non Disclosure Deed Poll
may  delay  provision  of  data  to  the  respondent  and  may  mean  that  the
respondent is unable to attend the Information Days.
Please note that the Draft Deed of Transfer does not need to be completed, signed
or submitted as part of a submission.

Contact
Name:
Jason Scerri, Assistant Director
Officers:
Single Disposal Organisation
(clause 2.3)
Materiel Logistics, Disposals and Sales
Geoff Rodwell, Contracting Officer
Single Disposal Organisation

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Materiel Logistics, Disposals and Sales (MLDS)
Address:
Department of Defence
Capability Acquisition and Sustainment Group
BP25-3-019
Brindabella Business Park
CANBERRA  ACT 2610
Email:
xxxxxxxx.xxxxxx@xxxxxxx.xxx.xx
Closing Time:  16:30 local time in the Australian Capital Territory (ACT) on 21 May 2021.
(clause 2.4.3)
Format:
The  Response  Form  should  be  provided  in  a  format  which  is  accessible  using
Microsoft Word 2003.  The Non Disclosure Deed Poll and Declaration by Respondent
(clause 2.4.4)
(once  physically  signed)  should  be  scanned  and  provided  in  Adobe  Portable
Document Format (PDF).

Submission
12 months after the Closing Time.
Validity
Period:
(clause 2.5)
Purchase
Respondents should propose a Purchase Price in the Response Form.
Price:
Respondents  should  note  that  the  Commonwealth  will  shortlist  those  submissions
(clause 3)
with the highest total proposed Purchase Prices.  The Commonwealth may set aside
a  submission  that  offers  a  lower  total  Purchase  Price  (see  clause  5.1.3)  and  may
exclude a submission which is clearly uncompetitive (clause 3.1.2).
A payment schedule for instalments of the Purchase Price will be negotiated between
the preferred respondent(s) and the Commonwealth. The Commonwealth intends
that the first instalment of approximately 10% of the Purchase Price will be payable
within 30 days of execution of the Deed.  No Assets will be released by the
Commonwealth as part of a Tranche without having received the relevant instalment
for that Tranche in full.

Export
The export control requirements in clause 4 (ITAR and EAR) apply to this RFS.
controls:
(clause 4)
Evaluation
The following evaluation criteria apply to this RFS:
Criteria:
a.
the proposed Purchase Price offered by the respondent for the Assets and the
(clause 5.1)
proposed pricing structure, including instalment payments;
b.
the extent to which the Commonwealth is satisfied that the  respondent and its
subcontractors are willing and able to meet the requirements of the Draft Deed
of Transfer;
c.
the  respondent’s  proposed  use  of  the  Assets,  their  assessed  capability  to
undertake that use and their past experience with assets which are similar to
the Assets;
d.
the respondent’s financial viability and capacity to pay the Purchase Price;
e.
any other risks, including work health and safety risks and reputational risks,
to the Commonwealth of transferring the Assets to the respondent; and
f.
the  extent  to  which  the  submission  (either  considered  alone  or  in
combination  with  other  submission(s))  supports  the  Commonwealth’s

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objective  of  disposing  of  all  the  Assets  to  a  single  respondent  or  as  few
respondents as practicable.

Evaluation

Process:
1.
The Commonwealth will shortlist those submissions which offer the highest
(clause 5.1)
total proposed Purchase Prices.
2.
Subject to these Conditions of Submission, the Commonwealth will evaluate
shortlisted  submissions  (other  than  those  which  have  been  excluded  in
accordance  with  these  Conditions  of  Submission)  against  the  evaluation
criteria.  The Commonwealth will rank shortlisted submissions based on the
outcomes of the evaluation.
3.
The highest-ranked shortlisted submission(s) will be preferred.
4.
Should,  for  any  reason,  the  preferred  Respondent(s)  subsequently  have
its/their  submission(s)  excluded  from  evaluation,  or  a  Deed  of  Transfer  not
be  signed  with  that/those  preferred  respondent(s),  then  the  next-ranked
submission(s)  will  be  preferred,  and  this  process  may  be  repeated  until  all
the Assets are allocated.
5.
The Commonwealth’s preference is to enter into a single Deed of Transfer
with  one  preferred  respondent  for  the  sale  of  all  Assets.    However,  the
Commonwealth may also consider a combination of part submissions which
support  the  Commonwealth’s  objective  of  disposing  of  all  the  Assets  to  as
few respondents as practicable.

Essential
Submissions
(including
all
attachments,
annexes
and
supporting
Requirements:
documentation other than insurance certificates) must be written in English.
(clause 5.2)
The respondent must not be an individual or entity on the Consolidated List (as
published  by  the  Australian  Government  Department  of  Foreign  Affairs  and
Trade)  to  which  the  Charter  of  the  United  Nations  Act  1945  and  the
Autonomous Sanctions Act 2011 currently applies.

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1
GENERAL CONDITIONS
1.1
Definitions
1.1.1
In  these  Conditions  of  Submission,  in  addition  to  any  defined  terms  set  out  in  the  RFS
Details Schedule, the following definitions apply:
a.
‘AECA’ means the Arms Export Control Act 1976 (US);
b.
‘Assets’ has the meaning given in the RFS Details Schedule and Draft Deed;
c.
‘Closing Time’ has the meaning given in the RFS Details Schedule;
d.
‘Contact Officer’ means the person specified as the Contact Officer in the RFS Details
Schedule  or  any  alternative  person  nominated  by  the  Commonwealth  in  writing  from
time to time;
e.
‘Declaration by Respondent’ means the document set out in Annex B;
f.
‘Deed’ means any deed, agreement, memorandum or contract for the disposal of the
Assets entered into by the Commonwealth resulting from the RFS process;
g.
‘Draft Deed’ means the draft document set out in Annex C;
h.
‘EAR’ means the USA Export Administration Regulations;
i.
‘Essential Requirement’ has the meaning given in the RFS Details Schedule;
j.
‘Evaluation Criteria’ means the evaluation criteria set out in the RFS Details Schedule;
k.
‘Evaluation  Process’  means  the  evaluation  process  set  out  in  the  RFS  Details
Schedule and clause 5.1;
l.
‘FMS’ means acquisition via the USA Foreign Military Sales process which makes the
materiel acquired subject to Section 3 of AECA;
m.
‘Government Entity’ includes a local government or foreign government entity;
n.
‘Insolvency Event’ has the meaning given in the Draft Deed;
o.
‘ITAR’ means the USA International Traffic in Arms Regulations;
p.
‘Recipient  Assurance  Letter’  means  a  letter  which  respondent/s  must  sign  as
described in clause 4;
q.
‘Response Form’ means the form set out in Annex A;
r.
‘RFS’ means this Request for Submission process for the disposal of the Assets;
s.
‘Submission Validity Period’ means the Submission Validity Period set out in the RFS
Details Schedule;
t.
‘Transfer  Authorisation’  means  authorisation  in  writing  given  by  the  United  States
Government, in accordance  with the  ITAR,  EAR or the AECA, authorising access to,
or new end use of, or retransfer of, the Assets;
u.
‘USA’ means the United States of America; and
v.
‘Working Day’  in relation to the doing of an action in a place, means any day in that
place other than:
(i)
a Saturday, Sunday or public holiday; or
(ii)
any  day  within  the  two-week  period  beginning  on  the  first  Saturday  that  falls
before  Christmas  Day  (or  beginning  on  Christmas  Day  when  it  falls  on  a
Saturday).
1.2
Interpretation
1.2.1
This RFS comprises:
a.
these Conditions of Submission (including the RFS Details Schedule);
b.
the Annexes to the Conditions of Submission; and
Conditions of Submission
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c.
any  other  document  provided  by  the  Commonwealth  to  respondents  (whether  at  the
same  time  as,  preceding  or  following  the  release  of  this  RFS)  which  the
Commonwealth  specifies  as  forming  part  of  this  RFS,  or  which  can  reasonably  be
inferred as forming part of this RFS.
1.2.2
If  there  is  any  inconsistency  between  any  part  of  this  RFS,  a  descending  order  of
precedence  will  be  accorded  so  that  the  provision  in  the  higher  ranked  document  in
clause 1.2.1, to the extent of the inconsistency, prevails.
1.2.3
In the RFS, unless the contrary intention appears, words, abbreviations and acronyms  have
the same meaning given to them in the Conditions of Submission (including the RFS Details
Schedule), Draft Deed or Response Form.
1.2.4
Any  time  or  date  in  the  RFS  is  for  the  convenience  of  the  Commonwealth  and  does  not
create  an  obligation  on  the  part  of  the  Commonwealth  to  take  any  action  or  exercise  any
right by that date.
1.3
Acceptance of Submission
1.3.1
Acceptance  of  a  submission  shall  only  occur  when  a  completed  and  executed  Deed  is
issued  by  the  Commonwealth  to  a  successful  respondent,  and  any  acceptance  of  the
submission  is  subject  to  the  terms  of  the  Deed.  The  Commonwealth,  at  its  discretion,  may
not accept any submission and may not issue a Deed.
1.3.2
If  the  respondent  is  a  Government  Entity,  the  Commonwealth  may  propose  an  alternative
form  of  deed  to  the  Draft  Deed,  which  is  similar  to  the  Draft  Deed  but  reflects  government
requirements.  Respondents which are Government Entities may request to be provided with
the alternative form of deed prior to submitting a submission.
1.4
Amendment of RFS
Note  to  respondents:    Any  amendment  to  the  RFS  will  be  issued  by  the  Commonwealth
through AusTender.  Refer to clause 2.4 for more information on AusTender.
1.4.1
The  Commonwealth  may  clarify  or  amend  any  aspect  of  the  RFS  by  issuing  a  formal
amendment to the RFS through AusTender.
1.4.2
If  the  Commonwealth  amends  this  RFS  under  clause  1.4.1  after  submissions  have  been
submitted, it may seek amended submissions.
1.4.3
Respondents  will  have  no  claim  against  the  Commonwealth  or  any  Commonwealth
personnel for any failure to inform a respondent of an amendment to the RFS, or any failure
to seek amended submissions, or any other matter arising in connection with an amendment
to this RFS.
1.5
Commonwealth’s Rights
1.5.1
Respondents submit their submissions subject to these Conditions of Submission.
1.5.2
To  the  extent  permitted  by  law,  no  binding  contract  (including  a  process  contract)  or  other
understanding (including any form of contractual, quasi-contractual or restitutionary rights, or
rights based upon similar legal or equitable grounds) will exist between the Commonwealth
and  a  respondent  unless  and  until  any  Deed  is  signed  by  the  Commonwealth  and  a
successful respondent.
1.5.3
Clause 1.5.2 does not apply to:
a.
the executed Declaration by Respondent or Non Disclosure Deed Poll; or
b.
any other deed or contractual arrangement entered into by the respondent (such as a
deed of confidentiality), as required by the Commonwealth from time to time.
1.5.4
The  Commonwealth  will  not  be  responsible  for  any  costs  or  expenses  incurred  by  any
respondent  in  the  preparation  or  lodgement  of  a  submission  or  in  taking  part  in  the  RFS
process.
1.6
Other Commonwealth Rights
1.6.1
Without  limiting  its  other  rights  under  the  RFS  or  at  law  or  otherwise,  the  Commonwealth
may  at  any  stage  of  the  RFS  process,  exclude  a  submission  or  part  of  a  submission  from
consideration if:
Conditions of Submission
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a.
an Insolvency Event occurs in relation to the respondent;
b.
the  Commonwealth  considers,  in  its  discretion,  that  entering  into  a  Deed  with  the
respondent may bring the Commonwealth into disrepute;
c.
the  Commonwealth  considers,  in  its  discretion,  that  the  respondent  intends  or  may
intend to use the Assets for an unlawful purpose;
d.
the submission is incomplete (for example, if the respondent has failed to provide, or
refuses to provide, a completed and signed Declaration by Respondent substantively
in the form of Annex B);
e.
the Commonwealth considers, in its discretion, that the submission is non-competitive;
or
f.
the  Commonwealth  has  reasonable  grounds  to  believe  that  a  representation  or
warranty given by a respondent in its submission is false or misleading.
1.6.2
In addition, the Commonwealth reserves all rights at any time during the RFS process, to do
all or any of the following:
a.
consider any late submission, where consistent with probity requirements;
b.
permit any organisation to participate as a respondent in the RFS process prior to the
Closing Time;
c.
obtain  and  consider  in  the  Evaluation  Process  additional  information  (whether
obtained through the RFS process or by any other means) relevant to a submission;
d.
use material submitted in response to one Evaluation Criterion in the evaluation of any
other Evaluation Criterion;
e.
seek clarification or additional information from, and enter into discussions with, any or
all of the respondents in relation to their submissions;
f.
shortlist one or more respondents;
g.
consider a joint submission or a part submission;
h.
allow a respondent to substitute itself with another person;
i.
contact  the  respondent’s  referees,  or  any  other  person  or  organisation,  in  relation  to
the submission directly and without notifying the respondent, and use the information
obtained from that person or organisation in the Evaluation Process; and
j.
perform  such  checks,  gather  such  information  and  make  such  inquiries  as  the
Commonwealth  considers  appropriate  to  verify  the  content  of  the  Declaration  by
Respondent  or  any  part  of  it  and  use  the  information  obtained  in  the  Evaluation
Process.
1.6.3
Without limiting its rights at law or otherwise, the Commonwealth, at its discretion, may:
a.
discontinue the RFS at any time;
b.
change the structure or timing of the RFS process;
c.
decline to issue any Deed; or
d.
dispose of any or all Assets separately from the RFS process,
and the Commonwealth will notify respondents to this effect.
1.6.4
The  Commonwealth’s  preference  is  to  enter  into  a  single  Deed  of  Transfer  with  one
preferred  respondent  for  the  sale  of  all  Assets.    However,  the  Commonwealth  may  also
consider a combination of part submissions which support the Commonwealth’s objective of
disposing of all the Assets to as few respondents as practicable (e.g. 80% sale of Assets to
one respondent and 20% to another).
1.6.5
The Commonwealth does not currently intend to sell Inventory independently of any Aircraft.
Submissions which only offer to purchase Inventory are unlikely to be preferred.
1.7
Reporting and Disclosure Requirements
1.7.1
Without  limiting  the  Commonwealth’s  right  to  disclose  other  information,  for  any  Deeds
awarded, the Commonwealth may publicly disclose a successful respondent’s name, postal
Conditions of Submission
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address  and  a  range  of  details  about  the  Deed,  including  the  names  and  details  of  any
subcontractors engaged by the successful respondent in respect of the Deed.
1.8
Assets including Inspection of Assets
1.8.1
The  number  of  Assets  may  vary  due  to  the  requirements  of  the  Commonwealth  and
Commonwealth  commitments  to  other  recipients,  such  as  museums.    In  addition,  the
Commonwealth will continue to utilise spare parts from Commonwealth stores,  and harvest
spare parts from Aircraft as they are withdrawn from service.  This will continue to affect the
volume of Inventory and condition of the available Aircraft during this RFS process and after
any Deed of Transfer has been signed.
1.8.2
The  Commonwealth  may  not  be  able  to  provide  log  books  and  technical  data  to  any
purchaser  other  than  certain  Computer-Aided  Maintenance  Management  System  (CAMM2)
data,  but  will endeavour to  provide data  where practicable.   Provision of CAMM2 data, and
attendance at an  Information Day, is subject to the Commonwealth receiving a  signed Non
Disclosure Deed Poll in the form set out in the RFS.  Respondents should assume that they
may need to obtain some technical data from an alternative source, such as a manufacturer,
at  their  own  cost.    In  addition,  Aircraft  will  not  necessarily  be  in  a  registrable  or  flyable
condition at purchase.
1.8.3
To aid in the preparation of  submissions, the Commonwealth  intends, subject to COVID-19
restrictions, to provide prospective respondents with an opportunity to inspect the Assets at
an Information Day, as described in the RFS Details Schedule.
1.8.4
Respondents  should  note  the  effect  of  clauses  1.4.1  and  2.1.  Respondents  should  not  rely
on  a  statement  made  during  any  inspection  visit  or  briefing  as  amending  or  adding  to  this
RFS, unless that amendment or addition is confirmed by the Commonwealth in writing.
1.8.5
Attendance  at  any  inspection  visits  or  briefings  will  be  limited  to  two  representatives  from
each  prospective  respondent.  To  arrange  attendance,  prospective  respondents  must,  at
least  five  Working  Days  prior  to  the  date  described  in  the  RFS  Details  Schedule,  provide
their  completed  Non  Disclosure  Deed  Poll  and  a  written  nomination  to  the  Contact  Officer,
including the following details:
a.
respondent’s name and location; and
b.
full details of respondent’s proposed representatives, including:
(i)
full name;
(ii)
position;
(iii)
date of birth;
(iv)
residential address;
(v)
work telephone number;
(vi)
work email address
(vii)
Nationality (for the purposes of security and base access); and
(viii)  a colour Portable Document Format (PDF) copy of a current government-issued
photo identity document (i.e. passport or driver’s licence).
1.8.6
The Contact Officer will notify the relevant respondent if any nomination is not accepted.  A
nomination  may  not  be  accepted  in  the  discretion  of  the  Commonwealth  and  without
providing reasons.
1.8.7
Prospective  respondents’  representatives  must  comply  with  all  applicable  Commonwealth
safety and security requirements, including induction processes and codes of conduct while
inspecting the Assets and will not be permitted to take photographs of the Assets.
1.8.8
Due  to  logistics  and  security  requirements,  representatives  of  respondents  that  have  not
registered by  the five Working Days prior to  a planned  Information Day may  not be able to
attend any visit or briefing or inspect the Assets.
Conditions of Submission
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2
SUBMISSION PREPARATION AND LODGEMENT
2.1
Respondents to Inform Themselves
2.1.1
The Commonwealth makes no representations or warranties that the information in the RFS
or any information communicated or provided to respondents during the RFS process is, or
will be, accurate, current or complete.
2.1.2
Respondents are solely responsible for:
a.
examining  the  RFS,  any  documents  referenced  in  or  attached  to  the  RFS  and  any
other information made available by the Commonwealth to respondents in connection
with the RFS process;
b.
obtaining  and  examining  all  further  information  which  is  obtainable  by  the  making  of
reasonable  inquiries  relevant  to  the  risks,  contingencies,  and  other  circumstances
having an effect on their submissions; and
c.
satisfying themselves that their submission is accurate, complete and not misleading.
2.1.3
If the RFS references any other material such as reports, plans, drawings, samples or other
reference  material,  the  respondent  is  responsible  for  obtaining  the  referenced  material  and
considering it prior to submitting a submission.
2.1.4
Respondents  prepare  and  lodge  their  submissions  based  on  the  acknowledgements  and
agreements in the Declaration by Respondent in Annex B.
2.2
Submission Preparation
2.2.1
Respondents must:
a.
submit the completed Response Form in Annex A;
b.
submit  the  completed  and  signed  Declaration  by  Respondent  in  Annex  B  and  Non
Disclosure Deed Poll in Annex D; and
c.
provide all additional documents requested in the Response Form.
2.2.2
Respondents must also comply with any additional requirements for submission preparation
and  content  (including  the  Essential  Requirement  that  submissions  must  be  in  English)  set
out in these Conditions of Submission (as amended from time to time).
2.3
Contact Officer and RFS Inquiries
2.3.1
Respondents should direct any questions regarding this RFS in writing to the Contact Officer
specified in the RFS Details Schedule.
2.3.2
Respondents  may  submit  questions  to  the  Contact  Officer  up  until  5pm  Australian  Capital
Territory  time  on  the  day  that  is  five  Working  Days  prior  to  the  Closing  Time.    The
Commonwealth may choose not to answer questions submitted after that time.
2.3.3
Any  question  submitted  by  respondents  is  submitted  on  the  basis  that  the  Commonwealth
may  circulate  respondents'  questions  and  the  Commonwealth’s  answers  to  all  other
respondents  without disclosing  the  source  of  the  questions  or  revealing  the  substance  of  a
proposed submission.
2.4
Lodgement of Submissions
Note to respondents:  Submissions must be lodged electronically via AusTender.
The  Closing  Time  will  be  displayed  in  the  relevant  AusTender  webpage  together  with  a
countdown clock that displays in real time the amount of time left until Closing Time (for more
information please see AusTender Terms of Use).  For the purposes of determining whether a
submission  response  has  been  lodged  before  the  Closing  Time,  the  countdown  clock  will  be
conclusive.
2.4.1
AusTender is the Australian Government’s procurement information system.  Access to and
use  of  AusTender  is  subject  to  terms  and  conditions.    In  participating  in  this  RFS,
respondents  must  comply  with  those  terms  and  conditions  and  any  applicable  instructions,
process,
procedures
and
recommendations
as
advised
on
AusTender
at:
https://www.submissions.gov.au/?event=public.termsOfUse.
2.4.2
All queries and requests for AusTender technical or operational support are to be directed to:
Conditions of Submission
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Inventory

AusTender Help Desk
Telephone: 1300 651 698
International: +61 2 6215 1558
Email: xxxxxxxxxxx@xxxxxxx.xxx.xx
The  AusTender  Helpdesk  is  available  between  9am  and  5pm  Australian  Capital  Territory
(ACT) local time, Monday to Friday (excluding ACT and national public holidays).
2.4.3
Submissions
are
to
be
lodged
electronically
via
AusTender
(https://www.submissions.gov.au)  before  the  Closing  Time,  in  accordance  with  the
submission lodgement procedures set out in this RFS and on AusTender.
2.4.4
Submissions  are  to  be  lodged  in  the  format  specified  in  the  RFS  Details  Schedule.  All  file
names should:
a.
sufficiently identify the respondent by including their name; and
b.
reflect  the  parts  of  the  submission  they  represent,  where  the  submission  comprises
multiple files.
2.4.5
Submission files should not exceed a combined file size of 500 megabytes per upload.
2.4.6
Submissions  lodged  after  the  Closing  Time  may  be  excluded  from  consideration  in
accordance  with  Commonwealth  policy,  unless  the  Commonwealth  determines  in  its  sole
discretion that it has caused or contributed to the respondent’s failure to lodge by the Closing
Time.
2.5
Submission Validity Period
2.5.1
The  Commonwealth  requires  that  submissions  submitted  in  response  to  this  RFS  remain
open for acceptance during the Submission Validity Period.
2.5.2
The Commonwealth may request an extension of the Submission Validity Period.
2.6
Alterations, Erasures and Illegibility
2.6.1
The Commonwealth may exclude a submission that contains alterations, erasures, illegibility,
ambiguity or incomplete details.
2.7
Errors and Corrections
2.7.1
If the Commonwealth considers that there are unintentional errors of form, incompleteness,
inconsistencies  or  ambiguities  (collectively,  ‘errors’)  in  a  submission,  the  Commonwealth
may request the respondent to correct or clarify the errors.
2.7.2
The Commonwealth is under no obligation to consider additional information provided by the
respondent in a response to a request which would result in a respondent obtaining an unfair
advantage over other respondents.
2.8
Confidentiality
2.8.1
Respondents must identify in their Response Form any aspects of their submission that they
consider  should  be  kept  confidential  should  they  be  incorporated  into  a  Deed,  and  provide
justification and reasons for the confidentiality.  Where the Commonwealth agrees that these
aspects are confidential, this will be specified in the Deed.
2.8.2
Despite any agreement under clause 2.8.1, the Commonwealth may disclose information:
a.
if  required  by  law  or  statutory  or  portfolio  duties,  or  required  for  public  accountability
reasons,  including  following  a  request  by  a  Minister,  Parliament  or  a  Parliamentary
Committee;
b.
for the purpose of defending any claim or proceeding in relation to this RFS process or
any Deed;
c.
which  is  in  the  public  domain  otherwise  than  due  to  a  breach  of  contract,  law  or
confidence; or
d.
as contemplated under clause 2.10.
Conditions of Submission
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2.9
Conduct
Note to respondents:  Respondents should note that the Declaration by Respondent sets out a
number  of  acknowledgements  and  undertakings  to  be  given  by  respondents,  including  in
relation to conflicts of interest.
2.9.1
The  Commonwealth  may  exclude  a  submission  from  consideration  if,  in  the  opinion  of  the
Commonwealth,  the  respondent  has  failed  to  comply  with  any  part  of  the  Declaration  by
Respondent.
2.9.2
The Commonwealth may exclude a submission from consideration if the respondent, or any
of  its  officers,  has  been  convicted  of  bribery  of  Commonwealth,  State,  Territory  or  foreign
government officials at any time during the last seven years.
2.10
Use of Submission Documents
2.10.1
All  submission  documents  submitted  in  response  to  this  RFS  become  the  property  of  the
Commonwealth.  Respondents submit documents in response to this  RFS on the basis  that
the Commonwealth may use, retain and copy the information contained in those documents
for the purposes of:
a.
evaluation of submissions and selection of any preferred respondent;
b.
preparation and negotiation of any Deed; and
c.
verifying  the  currency,  consistency,  accuracy  or  adequacy  of  information  provided
under any other RFS process conducted by the Commonwealth.
2.10.2
The Commonwealth may disclose all or part of the submission documents to a third party for
the purposes of assisting the Commonwealth in the conduct of the RFS process, and for the
purposes contained in clause 2.10.1.
2.10.3
Nothing  in  this  clause  2.10  changes  or  affects  the  ownership  of  intellectual  property  in  the
information contained in the submission documents.
2.11
Collusive Tendering and Unlawful Inducements
2.11.1
Respondents  and  their  officers,  employees,  agents  and  advisors  must  not  engage  in  any
collusive  tendering,  anti-competitive  conduct  or  any  other  similar  conduct  with  any  other
respondent or person or offer any unlawful inducements in relation to their submission or the
RFS process.
2.11.2
Respondents  must  disclose,  where  indicated  in  the  Response  Form,  if  their  submissions
have been compiled with the assistance of current or former (within the previous 12 months)
employees or contractors of the Commonwealth.
2.11.3
The Commonwealth may exclude a submission from consideration if:
a.
the  respondent  or  its  officers,  employees,  agents  or  advisors  have  engaged  in  any
conduct described in clause 2.11.1; or
b.
the  submission  has  been  compiled  with  the  assistance  of  the  persons  described  in
clause 2.11.2.
3
PRICE BASIS
3.1
Purchase Price
3.1.1
Respondents may propose a Purchase Price as described in the RFS Details Schedule and
Response  Form.    The  price  proposed  must  be  in  Australian  dollars  and  is  an  offer  by  the
respondent which is binding on the respondent for the Submission Validity Period.
3.1.2
The  Commonwealth  may  exclude  from  further  evaluation  any  submission  that  is  clearly
uncompetitive.
3.1.3
Respondents  should  note  that,  unless  the  Draft  Deed  states  otherwise,  in  addition  to  the
Purchase  Price,  respondents  are  responsible  for  all  costs  associated  with  collection  and
subsequent transport of the Assets, the costs of complying with the Deed and any applicable
laws and all other taxes, duties and any government charges.
Conditions of Submission
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4
EXPORT CONTROLS
4.1
Export Controls
Note to respondents:  This clause 4 only applies if, and to the extent that, the Assets are FMS
acquired, or subject to ITAR or EAR export controls, as identified in the RFS Details Schedule.
The Commonwealth shall request such further information and documentation from
respondents or preferred respondents as the Commonwealth requires to obtain Transfer
Authorisations and/or retransfer approval requests.  In particular, each preferred respondent
for an FMS acquired or ITAR-controlled Asset must sign a standard Recipient Assurance Letter
as required by the United States Department of State as a pre-requisite for the Department of
State considering a third party retransfer application.  The Commonwealth will provide the
required form to applicable respondents.
Respondents should note that the Commonwealth must be able to obtain all necessary
authorisations and approvals described in this clause prior to entering any Deed or allowing
access as part of any inspection, or transferring Assets, where the Assets are subject to US
export controls.
4.1.1
This clause 4 only applies if, and to the extent that, the Assets are FMS acquired or subject
to the ITAR or EAR, as identified in the RFS Details Schedule.
4.1.2
The  Commonwealth  will  not  transfer  any  Asset  and  may  not  enter  any  Deed  with  a
respondent  for  the  transfer  of  any  Asset  which  is  FMS  acquired  or  subject  to  the  ITAR
unless:
a.
the respondent and applicable subcontractors have provided to the Commonwealth all
necessary  completed  and  signed  Recipient  Assurance  Letters  on  the  correct
letterhead and in the format required by the US Department of State and provided to
the respondent by the Commonwealth; and
b.
the  Commonwealth  has  obtained  Transfer  Authorisation  from  the  US  Department  of
State in respect of that respondent and Asset.
4.1.3
The  Commonwealth  will  not  transfer  any  Asset  and  may  not  enter  any  Deed  with  a
respondent for the transfer of any Asset which is subject to EAR unless the Commonwealth
has  obtained  Transfer  Authorisation  from  the  US  Department  of  Commerce  in  accordance
with the EAR in respect of that respondent and Asset.
4.1.4
The  Commonwealth  will  use  reasonable  endeavours  to  promptly  request  Transfer
Authorisation in order to lawfully transfer an Asset to the preferred respondent(s). However,
the Commonwealth cannot and does not represent or warrant that any such authorisation or
approval will be able to be obtained, or will be able to be obtained within a reasonable time.
4.1.5
Respondents acknowledge and agree that:
a.
obtaining a Transfer Authorisation or other transfer authorisation or approval is outside
the control of the Commonwealth; and
b.
the Commonwealth may not enter into any Deed in respect of any Asset and will not
transfer any Asset, which is FMS acquired, or subject to the ITAR or EAR unless the
relevant approval or authorisation has been obtained.
4.1.6
In  addition  to  its  other  rights  under  these  Conditions  of  Submission,  the  Commonwealth
reserves  the  right  to  exclude  a  submission  from  further  consideration,  or  exclude  a
submission from consideration in relation to particular Assets (such as a particular Asset lot
or item) at any time should:
a.
the Commonwealth be unable to obtain US Department of State or US Department of
Commerce  Transfer  Authorisation  or  any  other  transfer  authorisation  or  approval
required from the US Government;
b.
the Commonwealth be unable to obtain US Department of State or US Department of
Commerce  Transfer  Authorisation,  or  any  other  transfer  authorisation  or  approval
required from the US Government, within what the Commonwealth considers to be a
reasonable time; or
c.
the  US Government advises the Commonwealth that the respondent  will  not be  able
to  obtain  a  Transfer  Authorisation  or  any  other  transfer  authorisation  or  approval
required from the US Government.
Conditions of Submission
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4.1.7
The  respondent  shall,  at  all  times,  comply  with  all  the  conditions  and  requirements  of  any
Transfer  Authorisation,  including  any  assurance  provided  by  the  respondent  to  the  US
Government in the respondent’s signed Recipient Assurance Letter.
5
EVALUATION AND SELECTION OF SUBMISSIONS
5.1
Evaluation Criteria and Process
5.1.1
The  Commonwealth  will  select  the  submission(s)  which  the  Commonwealth  considers  best
meet(s) the Evaluation Criteria.
5.1.2
Submissions will be evaluated in accordance with  the Evaluation Process in this clause  5.1
and  the  RFS  Details  Schedule  against  the  Evaluation  Criteria  set  out  in  the  RFS  Details
Schedule.
5.1.3
The Commonwealth will shortlist the submissions which propose the highest total Purchase
Price and set aside the remaining submissions.
5.1.4
If a shortlisted submission is excluded from the evaluation in accordance with this RFT, the
Commonwealth  may,  in  place  of  the  excluded  submission,  add  to  the  shortlist  the
submission(s) which propose the next highest total Purchase Price from those submissions
which had  previously  been set aside,  and resume evaluation in respect  of those shortlisted
submission(s).
5.1.5
The  Commonwealth  may  exclude  from  evaluation  at  any  time  any  submissions  that  are
assessed by the Commonwealth as being deficient against an Evaluation Criterion, or which
these Conditions of Submission state may be excluded from the RFS process. Except for a
submission  which  is  non-compliant  with  an  Essential  Requirement  as  described  in  clause
5.2, if a submission which may be excluded is for more than one Asset, that submission may
be excluded in respect of one Asset or some Assets only, rather than being excluded in its
entirety.
5.1.6
The Commonwealth may negotiate with one, or more than one,  respondent at any stage of
the evaluation.
5.2
Essential Requirements
5.2.1
Subject  to  clause  2.7,  the  Commonwealth  will  exclude  a  submission  from  further
consideration  in  its  entirety  if  the  Commonwealth  considers  that  the  submission  is  non-
compliant with any of the Essential Requirements.
5.3
Negotiation
5.3.1
The  Commonwealth  may  engage  one  or  more  respondents  in  negotiations,  which  may
involve  respondents  being  asked  to  clarify,  improve  or  consolidate  any  aspects  of  their
submissions.
5.4
Preferred Respondent Status
5.4.1
The  Commonwealth  may  select  one  or  more  respondents  as  preferred  respondents,  but
such selection:
a.
does  not  affect  or  limit  the  Commonwealth’s  rights  or  the  respondents’  obligations
under the RFS; and
b.
is not a representation that any Deed will be entered into between the Commonwealth
and any respondent,
and  the  Commonwealth  may  select  any  other  respondent  under  the  RFS  whether  or  not  a
respondent has been selected as a preferred respondent.
5.4.2
The  Commonwealth  may,  in  its  absolute  discretion,  offer  to  a  preferred  respondent  fewer
Assets than the respondent has sought to obtain.
5.5
Resultant Deed
5.5.1
The  Commonwealth  is  under  no  obligation  to  permit  the  collection  of  an  Asset  by  a
respondent until a Deed is signed with that respondent.
5.5.2
The provision of any Asset will be in accordance with the terms of the Deed.
Conditions of Submission
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5.5.3
If a respondent is offered a Deed but does not sign and return that Deed within 20 Working
Days of the date on which the Deed was offered by the Commonwealth, the Commonwealth
may allocate the Assets to another respondent.
5.6
Debriefing of Respondents
5.6.1
Respondents  will  be  notified  whether  they  have  been  successful  or  unsuccessful  and  may
request a debriefing.  Respondents requiring a debriefing should contact the Contact Officer.
5.6.2
Each  respondent  will  be  debriefed  on  the  Commonwealth’s  assessment  of  its  submission’s
performance against the Evaluation Criteria.
Conditions of Submission
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