| Reference |
Optional (see notes section below) |
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| Additional information |
The following clauses should be included in approach to market terms (where the Commonwealth Contracting Suite is not being used) where the entity wishes to reserve the right to conduct negotiations with one or more tenderers prior to entering into contract.
Paragraph 10.6(e) in Division 2 of the Commonwealth Procurement Rules provides that request documentation must include a complete description of the relevant entity’s intention to conduct negotiations, where applicable.
Paragraph 10.18 provides that a relevant entity may conduct negotiations where it has indicated its intent to conduct negotiations in the request documentation, as outlined in paragraph 10.6(e), or where following an evaluation, no single tenderer is assessed as providing best value for money, in accordance with the essential requirements and evaluation criteria specified in the approach.
Paragraph 10.19 further provides that where a relevant entity conducts negotiations, it must ensure that any elimination of a tenderer participating in negotiations is carried out in accordance with the essential requirements and evaluation criteria specified in the approach to market and request documentation, and it must provide a common deadline for the remaining participating tenderers to submit any revised tenders.
X.1. Negotiations
x.1.1 Without limiting any other rights in this ATM, the Customer may do any or all of the following at any time:
- shortlist one or more Potential Suppliers and seek further information from them;
- enter into negotiations or discussions with one or more Potential Suppliers;
- subject to clause x.1.2, discontinue negotiations or discussions with a Potential Supplier, whether or not the Potential Supplier has been notified that it is the preferred Potential Supplier;
- seek amended Responses or call for new Responses from one or more Potential Suppliers, provided it provides a common deadline for such Potential Suppliers to submit an amended or new Response; and
- negotiate with one or more persons who have not submitted Responses or enter into a contract or other binding relationship for similar goods or services to the Requirement outside this ATM.
x.1.2 Where the Customer eliminates a Potential Supplier that is participating in negotiations, it will do so in accordance with any essential requirements and criteria for evaluation specified in the ATM.
Before deciding whether this clause is appropriate for your Approach to Market, procurement officials should carefully consider the context of their procurement and the application of paragraphs 10.6(e), 10.18 and 10.19 of the CPRs. In particular, paragraph 10.6(e) requires your request documentation to contain a complete description of your entity’s intention to conduct negotiations, so you could consider tailoring this clause based on the specific negotiation process your entity intends to conduct.
Clause wording may also need to be changed to align with related clauses in the Approach to Market (such as clauses related to clarification and shortlisting).
It is recommending that agencies seek specific probity advice before exercising the rights at x.1.1.d and x.1.1.e.
Capitalised terms (unless otherwise defined) are based on the definitions in the Commonwealth Contracting Suite Glossary. Terms that are capitalised may need to be changed to align with the terminology of the relevant RFT or other Approach to Market.
