RFx - Process Terms and Conditions

Interpretation
These RFx Process Terms and Conditions are the process terms and conditions which apply to Te
Whatu Ora – Health New Zealand construction related RFx (including Contract Works and
construction professional services).
For Contract Works, the provisions of clause 1 of NZS 391x (as amended by the Special Conditions of
Contract) apply to this RFx Process Terms and Conditions.
For the avoidance of any doubt, for Contract Works the terms and conditions set out in these RFx
Process Terms and Conditions override the conditions of Tendering section of the NZS 391x (in its
entirety).
References to Principal should be read to refer to Principal or Client as applicable in the context of
the particular RFx.
Defined terms are shown using capitals. You can find definitions at the end of this Section.

Preparing and Submitting a Proposal

6.1. Preparing a Proposal
a. Respondent obligations
The Respondent must:
i. read the complete RFx and any additional information provided and referred to by
the Principal
ii. respond using the RFx Response Form and Pricing Schedule (if any) provided and
include all information the Principal requests
iii. consider the risks and contingencies relating to the delivery of the RFx requirements
and outline how it will manage those risks and contingencies
iv. include any assumptions, dependencies and/or qualifications in the Proposal,
including anything that may limit its obligations or increase its quoted pricing or cost
estimates
v. quote prices in NZ$, exclusive of GST
vi. obtain independent advice before submitting a Proposal (if necessary)
vii. make sure the Proposal is correct and the Proposal pricing is sustainable, i.e. covers
the Whole-of-Life of the Contract, not just the initial term.
b. Process acceptance
By submitting a Proposal, the Respondent accepts that it is bound by these RFx Process,
Terms and Conditions (RFx - Terms).
c. No obligation, no penalty
Suppliers are not expected or required to submit a Proposal in order to remain on any

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 prequalified or registered supplier list.

6.2. Joint Proposals

a. Respondents may submit a Joint Proposal provided that the Joint Proposal complies with the
RFx Terms and the instructions in the RFx documents (including the Response Form).
b. If a Joint Proposal is successful, the Principal may:
i. contract with a lead Respondent only (i.e., so that the lead Respondent is liable to the
Principal for delivering all Requirements under the Contract); and/or
ii. require that the parties to the Joint Proposal be jointly and severally liable under the
Contract(s); and/or
iii. contract individually with each Respondent to a Joint Proposal.

6.3. Offer Validity Period

a. Proposals for any RFP, RFT or RFQ are to remain valid and open for acceptance by the
Principal for the Offer Validity Period, stated in Section 1 of the relevant RFx.

6.4. Respondent Questions

a. Each Respondent should satisfy itself as to the interpretation of the RFx. If there is any
perceived ambiguity or uncertainty in the RFx document/s, Respondents should seek
clarification before the Deadline for Questions.
b. All requests for clarification must be made using GETS or by email to the Principal’s Point of
Contact.
c. If the Respondent has any questions or needs clarification, they:
i. must submit questions before the Deadline for Questions (Section 1 of the RFx)
ii. must clearly indicate any commercially sensitive information in their questions
iii. may withdraw their questions at any time.
d. When the Principal receives questions before the Deadline for Questions:
i. The Principal will respond on or before the Deadline for Answers.
ii. The Principal may provide details of both the questions and the answers to other
Respondents. In these circumstances, the Principal will summarise the questions and
not disclose the Respondent’s identity.
iii. Unless stated otherwise in the RFx, the Principal will post both the questions and
answers on GETS.
iv. The Principal will not publish commercially sensitive information. However, if the
Principal considers the information to be significant for all Respondents, the Principal
may modify the question to eliminate such commercially sensitive information and
publish both this and the answer. In this case, the Respondent may be given an

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 opportunity to withdraw the request or remove the commercially sensitive
information.

6.5. Submitting a Proposal

a. The Respondent is responsible for ensuring that its Proposal is received by the Principal at
the correct address on or before the Deadline for Proposals.
b. After the Deadline for Proposals, the Principal will acknowledge receipt of each Proposal.
c. The Principal intends to rely on the Respondent’s Proposal and all information provided by
the Respondent (e.g. correspondence and negotiations). In submitting a Proposal and
communicating with the Principal, each Respondent must ensure that all information it
provides to the Principal is:
i. Is true, accurate and complete
ii. Is not misleading in any material aspect
iii. Does not contain material that infringes a third party’s intellectual property rights
iv. Is identical if they supply both hard and soft copy Proposals.
d. Where the RFx stipulates a ‘two-envelope’ process, the Respondent must ensure that all
financial information and pricing components of the Proposal are provided either:
i. In a sealed envelope, separate from the rest of the Proposal and clearly marked
‘Price Response’, or
ii. In a separate digital file from the rest of the Proposal, clearly marked ‘Price
Response’.
e. If after submitting a Proposal a Respondent notices an inaccuracy in its Proposal, it must
notify the Principal’s Point of Contact immediately. The Respondent must also notify the
Principal’s Point of Contact during the RFx process if it becomes aware of relevant or material
information in the Proposal that has changed since the time the Proposal was submitted.

Assessing Proposals
6.6. Evaluation Panel
a. The Principal will convene an evaluation panel comprising members chosen for their relevant
expertise and experience. In addition, the Principal may consult or invite independent
advisors to evaluate any Proposal, or any aspect of any Proposal, to make decisions that may
influence the outcome of the RFx (such as the preferred service mix).
b. As panel members and advisors are chosen for their relevant expertise and experience, they
may have some previous knowledge of Respondents or experience with the Respondents in a
professional capacity. Panel members and advisors may apply this knowledge to the
evaluation or due diligence processes.

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 6.7. Third Party Information
a. The Principal may request information from a third party where the Principal considers the
information may be relevant to the RFx process, excluding commercially sensitive
information about pricing or contract terms.
b. If this occurs, the Respondent:
i. Authorises the Principal to collect that information from the relevant third party (e.g.
a referee or client), and authorises the third party to release it to the Principal
(waiving any confidentiality obligations that would otherwise apply to information
held by the third party)
ii. Agrees the Principal may use that information in its evaluation of the Proposal
iii. Must ensure that all referees listed in the Proposal agree to provide a reference.

6.8. Clarification of Proposal

a. The Principal may ask the Respondent for more information or clarification on the Proposal
at any time during the RFx process.
b. The Principal need not ask all Respondents for the same clarification.
c. The Respondent agrees to provide the information or clarification as soon as possible, in the
format requested by the Principal.
d. If the Respondent does not provide adequate information or clarification within a reasonable
time (as determined by the Principal), the Principal may remove the Proposal from its
evaluation process.

6.9. Evaluation and Shortlisting of Proposal

a. A general description and overview of the Principal’s evaluation and selection processes are
set out in Section 3 of the RFx
b. The Principal may amend this process, including expanding or reducing aspects of the
evaluation and selection process, as the Principal considers appropriate in the circumstances.
c. The Principal bases its evaluation on the Proposals submitted in response to the RFx, but may
also adjust its evaluation of a Proposal following consideration of any clarification, relevant
additional information, or due diligence.
d. Where the RFx is for a RFP, RFT or RFQ and Section 3 identifies that a weighted evaluation
criteria applies, while the weighted evaluation criteria set out in Section 3 are provided to
support Respondents to develop their responses, the Principal’s decision regarding the
preferred Respondent(s) to award the Contract may take into account any additional matters
or information relevant to determining which Respondent(s) both:
i. demonstrate a full understanding of the Requirements, and capability to fully deliver
the Requirements and meet the terms and conditions of the Proposed Contract; and
ii. offer the best value-for-money over the whole-of-life of the goods or services (or, if

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 price is the only criterion, offer the lowest price).
e. Where the RFx is for a RFP, RFT or RFQ, in deciding the preferred Respondent(s) to award a
Contract, additional matters or information the Principal may take into account include, but
are not limited to:
i. the results from reference checks, site visits, product testing, health and safety
reviews, and any other due diligence.
ii. the ease of contracting with a Respondent based on that Respondent’s feedback on
the Proposed Contract.
iii. any matter that materially impacts the Principal’s trust and confidence in the
Respondent.
iv. any other relevant information that the Principal may have in its possession.
f. If a Proposal is shortlisted this does not mean that the Principal has accepted as offer or
made any commitment. There is no obligation for the Principal to enter negotiations with, or
award a Contract to, any shortlisted Respondent. If a Respondent is not shortlisted based on
its Proposal, the Principal may exclude it from any further participation in the procurement
process.
g. While the Principal is still in the process of evaluating Proposals or negotiating a Contract, the
Principal generally will not make public the names of shortlisted or preferred Respondents.

6.10. Negotiations
This 6.10 applies where the RFx is for an RFP, RFT or RFQ.
a. The Principal may invite one or more Respondents to enter into negotiations with a view to
forming a contract.
b. During negotiations, the Principal may:
i. Discontinue negotiations with one Respondent and then initiate negotiations with
another Respondent (consecutive).
ii. Negotiate concurrently with more than one Respondent.
c. If negotiating with more than one Respondent, the Principal must:
i. Treat each Respondent fairly.
ii. Prepare a separate plan for each negotiation.
iii. Hold a separate negotiation meeting with each Respondent.
iv. Advise each relevant Respondent that concurrent negotiations will be carried out.
d. Being invited to enter negotiations, or participating in negotiations, does not constitute
acceptance by the Principal of the Respondent’s Proposal or imply or create any obligation
on the Principal to award a Contract for delivery of the Requirements to any Respondent/s.
e. Unless the Principal agrees otherwise, the Respondent agrees that any legally binding
contract that may result from the negotiations will be essentially in the form in Section 4 of
the RFx (Proposed Contract)

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 6.11. Respondent Debrief
a. Unsuccessful Respondents will be notified in writing. Each Respondent will have 10 Business
Days, from the date of the notification, to request a debrief. When a Respondent requests a
debrief, the Principal will provide the debrief within 30 Business Days of the date of the
request, or of the date the Contract is signed by all parties, whichever is later.
b. The debrief may be provided by letter, email, phone or at a meeting. The debrief will:
i. provide the reasons why the Proposal was or was not successful
ii. explain how the Proposal performed against the pre-conditions (if applicable) and
the evaluation criteria
iii. indicate the Proposal’s relative strengths and weaknesses
iv. explain, in general terms, the relative advantage/s of the successful Proposal
v. seek to address any concerns or questions from the Respondent
vi. seek feedback from the Respondent on the RFP and the RFP process.

6.12. Notification of Outcome

a. At any point after the conclusion of negotiations, but no later than 30 Business Days after the
date the Contract is signed by all parties, the Principal:
i. Will inform all unsuccessful Respondents of the name of the Successful Respondent,
if any.
ii. May make public the name of the Successful Respondent and any unsuccessful
Respondent.
iii. Will publish a Contract Award Notice on GETS, where applicable.

6.13. Issues and Complaints

a. The Respondent may, in good faith, raise with the Principal any issue or complaint about the
RFx or RFx process at any time.
b. When this occurs:
i. The Principal will consider and respond promptly and impartially to the Respondent’s
issue or complaint.
ii. Both the Respondent and the Principal must do their best to resolve the issue or
complaint.
iii. The Principal must not allow the issue or complaint to prejudice the Respondent’s
participation in the RFx process, or limit or affect the Respondent’s future
procurement opportunities.

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Standard RFx Conditions
6.14. Principal’s Point of Contact
a. The Respondent must direct all RFx enquiries via GETS or directed to the Principal’s Point of
Contact in Section 1 of the RFx.
b. The Respondent must not approach any other employee or other representative of the
Principal, directly or indirectly, for information on any aspect of the RFx.
c. Only the Point of Contact, or a person authorised by the Principal, may communicate with
the Respondent on any aspect of the RFx. The Principal will not be bound by any statement
made by any other person.
d. The Principal may change its Point of Contact at any time. The Principal will notify the
Respondent of any change by email or posting a notification on GETS.
e. If the Respondent has an existing contract with the Principal, the Respondent must not use
its business-as-usual communications to contact the Principal regarding the RFx.

6.15. Conflict of Interest

a. The Respondent must complete the Conflict of Interest declaration in the RFx Response
Form. If a joint proposal is being submitted, each party must complete the Conflict of Interest
declaration separately.
b. If a Conflict of Interest arises during the RFx process, the Respondent must inform the
Principal immediately.
c. The Principal may exclude a Respondent from the RFx process if a material Conflict of
Interest arises, or agree to an appropriate process for managing the Conflict of Interest as a
condition of further participation in the RFx process.

6.16. Ethics
a. The Respondent must not attempt to influence, reward or benefit any representative of the
Principal, nor offer any form of personal inducement, in relation to the RFx or the RFx
process.
b. The Respondent must comply with the Supplier Code of Conduct issued by the Procurement
Functional Leader, and any other relevant codes of conduct listed in the RFx.
c. The Principal may exclude the Respondent from the RFx process for breach of paragraph
6.14b, 6.14e, 6.16a, 6.16b, or breaches outlined in Section 1 of the RFx.
d. To maintain a fair and ethical RFx process, the Principal may require additional declarations
or other evidence from the Respondent, or any other person, at any time.

6.17. Anti-collusion and Bid Rigging

a. By submitting the Proposal the Respondent warrants that:

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 i. The proposal has not been prepared in collusion with a Competitor.
ii. It will not engage in deceptive or improper conduct during the RFx process
b. The Principal may exclude the Respondent from the RFx process if a breach of these
warranties occurs.
c. The Principal reserves the right to report suspected collusion or anti-competitive behaviour
to the appropriate authority, and to give that authority all relevant information, including the
Proposal
d. A Joint Proposal must not be used as a cover for price fixing between Competitors.
Respondents must ensure that their Proposal does not breach the Commerce Act 1986 or
other restrictions on anti-competitive conduct.

6.18. Confidential Information

a. Without limiting other confidentiality agreements between them, the Principal and the
Respondent will both take reasonable steps to protect the other party’s Confidential
Information.
b. Except as permitted by the other provisions of this Section 6.18, neither party will disclose
the other party’s Confidential Information to a third party without that other party’s prior
written consent.
c. Each party may disclose the other party’s Confidential Information to anyone who is directly
involved in the RFx process on that party’s behalf, but only for the purpose of participating in
the RFx. This could include (but is not limited to) officers, employees, consultants,
contractors, professional advisors, evaluation panel members, partners, principals, or
directors. Where this occurs, the disclosing party must take reasonable steps to ensure the
third party does not disclose the information to anyone else and does not use the
information for any purpose other than participating in the RFx process.
d. Respondents acknowledge that the Principal’s obligations are subject to requirements
imposed by the Official Information Act 1982 (OIA), the Privacy Act 2020, parliamentary and
constitutional convention, and any other obligations imposed by law. Where the Principal
receives an OIA request that relates to a Respondent’s Confidential Information, the Principal
will consult with the Respondent and ask the Respondent to explain why the information is
considered by the Respondent to be confidential or commercially sensitive, and what
predicted harm or prejudice would likely result from its release.
e. The Respondent may disclose the Principal’s Confidential Information to the extent strictly
necessary to comply with law or the rules of any stock exchange on which the securities of
the Respondent or any related entity are currently listed. Unless prohibited by law, the
Respondent must consult with the Principal before making such a disclosure.
f. The Principal will not be in breach of its obligations if Confidential Information is disclosed by
the Principal as a result of its legal obligations, disclosed to the appropriate authority because
of suspected collusive or anti-competitive tendering behaviour or disclosed as part of the
Principal’s due diligence process of validating information.

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 6.19. Confidentiality of RFx Information
a. For the duration of the RFx, to the date of the announcement of the Successful Respondent,
or the end of the RFx process, the Respondent agrees to keep the RFx strictly confidential
and not make any public statement to any third party in relation to any aspect of the RFx, the
RFx process or the award of any Contract without the Principal’s prior written consent.
b. A Respondent may disclose RFx information to any person described in paragraph 6.18.c but
only for the purpose of participating in the RFx. The Respondent must take reasonable steps
to ensure that such recipients do not disclose Confidential Information to any other person
or use Confidential Information for any purpose other than responding to the RFx.

6.20. Costs in participating in the RFx process

a. Except as otherwise stated in the RFx, the Respondent must meet their own costs associated
with the preparation, presentation, and negotiation of the Proposal.

6.21. Ownership of Documents

a. The RFx and its contents remain the property of the Principal. All Intellectual Property rights
in the RFx remain the property of the Principal or its licensors.
b. The Principal may request the immediate return or destruction of any or all RFx documents
and any copies. Respondents must comply with any such request in a timely manner.
c. All documents forming the Proposal will, when delivered to the Principal, become the
property of the Principal. Proposals will not be returned to Respondents at the end of the RFx
process.
d. Intellectual Property rights in the Proposal remain the property of the Respondent or its
licensors.
e. The Respondent grants to the Principal a non-exclusive, non-transferable, perpetual licence
to retain, use, copy and disclose information contained in the Proposal for any purpose
related to the RFx process.
f. Each Respondent warrants that its Proposal does not contain any Intellectual Property that
will breach a third party’s rights, or that would be infringed if the Principal exercises its
license (set out in paragraph 6.21.e above).

6.22. Limited Rights and Obligations

a. Except as stated otherwise in this Section 6.22, nothing in the RFx, these RFx Terms or the
RFx process creates a contract or any other legal relationship between the Principal and
Respondent, unless and until they enter into a Contract.
b. The following are binding on the Respondent:
i. The Respondent’s signed declaration (contained in the RFx Non-Price Response).
ii. Where the RFx is a RFP, RFT or RFQ, the Respondent’s obligation under Section 6.3 to

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 ensure the Proposal remains open for the Offer Validity Period.
iii. The Respondent’s obligations under paragraph 6.5.c. Nothing in this Section 6.22
takes away from any rights or remedies the Principal may have in relation to the
Respondent’s statements, representations or warranties in the Proposal or in
correspondence or negotiations with the Principal.
iv. The standard RFx conditions in Sections 6.14 – 6.28.
v. Any additional separate written agreement signed by both the Principal and the
Respondent in relation to the RFx process that is intended by both parties to be
binding (e.g. a separate Confidentiality Agreement).
c. Sections 6.18 and 6.21 are binding on the Principal.
d. Where applicable, the Principal and each Respondent are bound by any other obligation
expressly identified in Section 1 of the RFx as being binding.
e. All terms and other obligations that are binding on the Principal are subject to the Principal’s
additional rights in Section 6.25.

6.23. Exclusion from the RFx Process

a. The Principal may exclude a Respondent from participating in the RFx if there is a good
reason for exclusion and the Principal has evidence supporting the reason.
b. The Principal may exclude the Respondent from the RFP process if the Respondent:
i. has failed to provide all information requested or in the correct format
ii. has breached the RFx Terms and the Principal considers the impact of the breach is
more than trivial (this applies whether or not the provision in question is itself legally
binding on the Recipient)
iii. included a material error, omission or inaccuracy in the Proposal
iv. is in bankruptcy, receivership or liquidation
v. has made a false declaration
vi. has been convicted of a serious crime or offence
vii. has failed to pay taxes, duties or other levies
viii. represents a threat to national security or the confidentiality of sensitive government
information
ix. is a person or organisation designated as a terrorist by New Zealand Police.
c. The Principal may exclude the Respondent from the RFx process if:
i. there is a serious performance issue in a historic or current contract delivered by the
Respondent
ii. there is professional misconduct or an act or omission on the part of the Respondent
which adversely reflects on the integrity of the Respondent; and/or
iii. the Principal becomes aware of any other matter that materially diminishes the
Principal’s trust in the Respondent

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 6.24. Due Diligence
a. The Principal may conduct due diligence. The Principal is not obliged to conduct the same
enquiries or the same level of enquiry with every Respondent. Due diligence enquiries may
be made at any stage of the RFx process.
b. In undertaking due diligence, the Principal may seek additional information from any source,
including information known to the Principal, its advisors, staff or evaluation panel members,
and information from third parties.
c. To facilitate the conduct of due diligence, the Respondent waives any confidentiality
obligations that would otherwise apply to the information, with the exception of
commercially sensitive pricing information. By participating in this RFx, the Respondent
consents to the Principal disclosing the following for the purpose of conducting due diligence:
i. the Respondent’s identity
ii. that the Principal is conducting due diligence as part of a procurement process
iii. any representations made in the Proposal (including in documents marked as
confidential or commercially sensitive) which the person being contacted as part of
the due diligence enquiry could reasonably be expected to validate or provide
information about, other than commercially sensitive pricing information.
d. Depending on the nature and severity of any issues identified as part of due diligence, the
Principal may exercise its discretion as to the appropriate response. This may include, but is
not limited to:
i. if the Principal considers there is a good reason for exclusion and the Principal has
evidence supporting that reason (refer to paragraph 6.23 above, which lists examples
of reasons for exclusion), excluding the Respondent at any time
ii. if the issue or information is relevant to evaluation matters, taking this into account
in the Principal’s evaluation or decisions regarding contracting
iii. if the Principal considers that the matter is not sufficiently relevant or material to the
RFx, deciding not to take the issue into account or not to exclude the Respondent.
e. Respondents accept that the Principal’s due diligence processes may include gathering
information from persons who provide that information subject to an obligation of
confidence. The Principal may withhold information from Respondents where there is a good
reason to do so. This includes, for example, circumstances where the information was
provided subject to an obligation of confidence, or where the disclosure of evaluative
material would breach an express or implied promise to the person supplying it that their
identity or the information would be held in confidence.

6.25. Principal’s Additional Rights

a. Changes to the RFx
i. The Principal may amend, suspend, cancel or re-issue the RFx, or any part of it, so

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 long as it notifies the Respondent.
ii. The Principal may change material aspects of the RFx, such as the timeline,
Requirements or Evaluation Approach, provided it gives the Respondent time to
respond to update its Proposal in relation to the changes.
b. Timeline
i. The Principal may accept a late Proposal if it is the Principal’s fault it is late, or if the
Principal considers there is no material prejudice to other Respondents in accepting a
late Proposal.
ii. The Principal may answer a question submitted after the Deadline for Questions and
notify all Respondents about the submission of the question and the answer.
iii. The Principal will not accept a late Proposal if it considers that there is risk of
collusion on the part of a Respondent, or the Respondent may have knowledge of
the content of any other Proposal.
iv. The Principal may answer a question submitted after the Deadline for Questions, if
applicable.

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c. The Proposal
i. The Principal may accept or reject any Proposal, or part of a Proposal. This includes
any non- compliant, non-conforming or alternative Proposal.
ii. The Principal may decide not to accept the lowest price conforming Proposal, unless
stated otherwise in the Evaluation Approach.
d. RFx Process
i. Subject to paragraph 6.10.c, the Principal may liaise or negotiate with any
Respondent without informing, or doing the same, with any other Respondent.
ii. The Principal may provide Respondents with information arising from questions
about the RFx.
iii. The Principal may withhold information arising from questions about the RFx. This
may be the case if the information is unnecessary, is commercially sensitive, is
inappropriate to supply at the time of the request or cannot be released for legal
reasons.
iv. The Principal may waive requirements or irregularities around the RFx process if the
Principal considers it appropriate or reasonable to do so.
v. Where the RFx is a RFP, RFT or RFQ, the Principal may amend the Proposed Contract
at any time, including during negotiations with a Respondent.
vi. Where the RFx is a RFP, RFT or RFQ, the Principal may decide not to enter into a
Contract with any Respondent. Where the RFx is a ROI, the Principal may decide not
to shortlist any Respondent.
e. Consortia and Unbundling
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 The Principal may, at its discretion, appoint either a single or multiple Respondents to deliver
the Requirements. The Principal may also request that a Respondent(s) agrees to the
Principal:
i. selecting any individual element(s) of the Requirements that is offered in a Proposal
and capable of being delivered separately, unless the Proposal specifically states that
the Proposal, or elements of the Proposal, are to be taken collectively
ii. selecting two or more Respondents to deliver the Requirements as a joint venture or
consortium
iii. in relation to a Joint Proposal, selecting only one or some of the parties to the Joint
Proposal to deliver the Requirements, or elements of the Requirements or Joint
Proposal that are capable of being delivered separately
iv. having the Respondent(s) from one Proposal (or Joint Proposal) work with another
Respondent(s) or party to deliver the Requirements.

6.26. New Zealand Law

a. The laws of New Zealand shall govern the RFx, and each Respondent agrees to submit to the
exclusive jurisdiction of the New Zealand courts in respect of any dispute concerning the RFx
or the RFx process. The Respondent agrees that it cannot bring any claim in relation to the
RFx except in a New Zealand court.

6.27. Disclaimer
a. Nothing contained or implied in the RFx, or the RFx process or any other communication by
the Principal to the Respondent is to be construed as legal, financial or other advice.
b. The Principal will endeavour to provide accurate information in any communication, but the
Respondent accepts this information is not independently verified and may not be up-to-
date.
c. The Principal will not be liable in contract, tort, equity, or in any other way for any direct or
indirect damage, loss or cost incurred by the Respondent or any other person in respect of
the RFx process, whether as a result of the Principal exercising its rights under Section 6.25,
the Principal’s negligence or breach of the RFx Terms, the Principal failing to select the
Respondent as the Successful Respondent, or any other cause.
d. To the extent that liability cannot be excluded, the maximum aggregate liability of the
Principal, its agents and advisors in connection with the RFx process, to all Respondents
combined, is NZ$1.
e. The limitations and exclusions in paragraphs 6.27.c and 6.27.d above do not apply to any
liability the Principal may have for breach of confidentiality or infringement of the
Respondent’s intellectual property rights.

6.28. Precedence
a. Any conflict or inconsistency in the RFx shall be resolved by giving precedence in the
following descending order:
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 i. Section 6 and this document (RFx - Process Terms and Conditions)
ii. all other Sections of this RFx document
iii. any additional information or document provided by the Principal to Respondents
through the Principal’s Point of Contact or GETS.
b. If there is any conflict or inconsistency between information or documents having the same
level of precedence the later information or document will prevail.

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Definitions
Advance Notice A notice published by the Principal on GETS in advance of publishing the
RFx. An Advance Notice alerts the market to a contract opportunity.
Where used, an Advance Notice forms part of the RFx.
Business Day Any weekday in New Zealand, excluding Saturdays, Sundays, New
Zealand (national) public holidays and all days from Boxing Day up toand
including the day after New Year’s Day.
Competitors Any other business that is in competition with a Respondent either in
relation to the goods or services sought under the RFx or in general.
Confidential Information that:
Information  is by its nature confidential
 is marked by either the Principal or a Respondent as
‘confidential’,‘commercially sensitive’, ‘sensitive’, ‘in
confidence’, ‘top secret’, ‘secret’, classified’ and/or ‘restricted’
 is provided by the Principal, a Respondent, or a third party in
confidence
 the Principal or a Respondent knows, or ought to know, is
confidential.
Confidential information does not cover information that is in the public
domain through no fault of either the Principal or a Respondent.
Conflict of Interest A Conflict of Interest arises if a Respondent’s personal or business
interests, relationships, or obligations do, could, or could be perceived
to, conflict withits obligations to the Principal under the RFx or in the
provision of the goods or services. It means that the Respondent’s
independence, objectivity or impartiality can be called into question. A
Conflict of Interest may be:
 actual: where the conflict currently exists
 potential: where the conflict is about to happen or could
happen, or
 perceived: where other people may reasonably think that a
personis compromised.
Contract The written Contract(s) entered into by the Principal and Successful
Respondent(s) for the delivery of the Requirements.
Contract Award A notice published on GETS pursuant to Rule 48 of the Government
Notice Rules of Sourcing when an agency has awarded a contract that is
subject to the Rules.
Deadline for The deadline that Proposals are to be delivered or submitted to the
Proposals Principal as stated in Section 2.
Deadline for Answers The Deadline for the Principal to respond to questions submitted by a
Respondent as stated in Section 1, if applicable.
Deadline for The deadline for suppliers to submit questions to the Principal as stated
Questions
in Section 1, if applicable.

Evaluation Approach The approach used by the Principal to evaluate Proposals as described in
Section 3.

RFx-Terms 15
GETS Government Electronic Tenders Service available at www.gets.govt.nz
GST The goods and services tax payable in accordance with the New Zealand
Goods and Services Tax Act 1985.
Joint Proposal A Proposal in which multiple Respondents propose to deliver the
Requirements jointly.
Joint Respondents Each Respondent to a Joint Proposal
Intellectual Property All intellectual property rights and interests, including copyright,
trademarks, designs, patents and other proprietary rights, recognised or
protected by law or equity.
NZS 391x In respect of Contract Works, the NZS form of contract proposed to be
used for the project.
Offer Validity Period The period of time when a Proposal (offer) is held open by the
Respondent for acceptance by the Principal as stated in Section 6.3.
Point of Contact The Principal and each Respondent are required to appoint a Point of
Contact. This is the channel to be used for all communications during
the RFx process. The Principal’s Point of Contact is identified in Section
1. The Respondent’s Point of Contact is identified in its Proposal.
Price/Fee The total amount, including all costs, fees, expenses and charges, is to
be charged by the Successful Respondent for the full delivery of the
Requirements. Except for a ROI, each Respondent’s Proposal must
include its Price.
Pricing Schedule The form prescribed by the Principal and used by a Respondent to
submit its pricing (where applicable) for the RFx, duly completed and
submitted by a Respondent as part of the Proposal.
Principal The government agency that has issued the RFx with the intent of
purchasing goods or services described in the Requirements. The term
‘Principal’ includes its officers, employees, contractors, consultants,
agents and representatives. For the avoidance of any doubt, references
to Principal are to be read as references to Client where appropriate in
respect of an RFP and an applicable ROI.
Proposal The response submitted by a Respondent (or Joint Respondents) in reply
to the RFx. It comprises the Response Form, for an RFP, RFT and RFQ the
Pricing Schedule (and/or any other document containing the
Respondent’s bid, financialand pricing information), and all other
information submitted by the Respondent/s submitting the response.
Proposed Contract The indicative contract template or other document setting out
standard terms and conditions that the Principal intends to use for
contracting delivery of the Requirements. This document is referred to
in Section 4 and provided with the RFx documents. For the avoidance of
any doubt, this definition does not apply in respect of an ROI.

Requirements The goods and/or services described in Section 2 and Section 5 of the
RFx which the Principal intends to purchase.

Respondent A person, organisation, business or other entity that submits a Proposal

inresponse to the RFx. The term Respondent includes its officers,

RFx-Terms 16
 employees, contractors, consultants, agents and representatives. The
termRespondent differs from a supplier, which is any other business in
the marketplace that does not submit a Proposal.

Response Form The form and declarations prescribed by the Principal and used by a
Respondent to respond to the RFx, duly completed and submitted by a
Respondent as part of the Proposal.

RFx RFx is a catch-all term that captures all references to:

 Registration of Interest (ROI);
 Request for Tender (RFT);
 Request for Proposal (RFP); and
 Request for Quote (RFQ),
each consisting of its own Advance Notice (where used), any
Registration of Interest (where used for items other than ROI), the RFx-
Terms, any other schedule, appendix or document attached to the RFx,
and any subsequent information provided by the Principal to
Respondents through the Principal’s Point of Contact or GETS.

RFx Process, Terms The Principal’s standard process, terms and conditions that apply to RFx
and Conditions / RFx as described in Section 6 (including this document). These may be
Terms varied subsequent to the release of the RFx by the Principal on giving
notice to Respondents.

Successful Following the evaluation of Proposals and successful negotiations, the

Respondent Respondent(s) who is awarded a Contract(s) to deliver all or part of the
Requirements.

RFx-Terms 17