(b)
RMS’ rights under clause 4.18(a) of this Request for Tender are without prejudice to any other
rights or remedies which RMS may have in connection with the breach.
(c)
To the extent permitted by law, Tenderers will have no Claim against RMS arising out of RMS’
exercise, or failure
to exercise, its rights under this clause 4.18.
4.19
C
HANGES TO
P
ARTICIPANTS IN A
T
ENDERER
(a)
Tenderers must notify RMS in writing as soon as the Tenderer becomes aware of, or where
relevant of any change to, any of the following entities or individuals occurring before the
Closing Date and Time, or after the Closing Date and Time during the Tender evaluation period:
(i)
any entity that proposes to take a direct equity interest in the Tenderer or a Participant if
the Tenderer is or will become the Contractor;
(ii)
the ultimate parent entity of any entity that proposes to take a direct equity interest of the
type mentioned in the paragraph above;
(iii)
any other entity that is likely to be in a position to exercise control or influence (direct or
indirect) over the future management and operation of the Tenderer or a Participant;
(iv)
any director, secretary or chief executive of any entity falling within the above
paragraphs
and any proposed new director, secretary or chief executive officer; and
(v)
any key Project resources identified by the Tenderer as providing a core capability to the
Tenderer.
(b)
If RMS, in its absolute discretion, determines that a change referred to in clause 4.19(a) of this
Request for Tender is material, it reserves the right to re-evaluate the Tender or to eliminate the
Tenderer from further participation in this Request for Tender.
4.20
P
RIVACY
A
CT
C
OMPLIANCE
(a)
In relation to any personal information (as defined in the
Privacy Act 1988 (Cth) (
Privacy Act)
provided by the Tenderer or a Participant in connection with the Tenderer’s Tender, by
submitting a Tender, the Tenderer and Participant warrant to RMS that:
(i)
the Tenderer or Participant, as the case may be, has obtained the consent of each
individual about which any sensitive information (as defined in the Privacy Act) is
provided; and
(ii)
the Tenderer or Participant has ensured or will ensure, within the time required by the
Privacy Act, that each individual about whom any personal information (as defined in the
Privacy Act) is provided has received a
written statement setting out, or is otherwise
made aware of, all of the matters required by Australian Privacy Principle 5:
A.
in relation to disclosure of the personal information to RMS or any of its officers,
employees, agents or advisers requiring the information for the purposes set out
in the following paragraph; and
B.
disclosing that the persons referred to in the previous paragraph will use the
personal information for the purposes of evaluating the Tenderer’s Tender.
(b)
Each of the Tenderers and Participants agrees to comply with the provisions of the Privacy
Act in
relation to any personal information provided to them by RMS or by any of its officers,
employees, agents or advisers.
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4.21
E
RRORS AND
A
MENDMENTS
(a)
If the Tenderer finds any discrepancy, error or omission in the Tender Documents or has any
question or wishes to make any enquiry (
Enquiry) concerning the Tender Documents, it is to
notify RMS Representative in writing a minimum of 7 days prior to the Closing Date and Time.
Answers to any such written Enquiries may be given by RMS in the form of addenda and issued
to all Tenderers under clause 4.21(b) of this Request for Tender or issued to all Tenderers as
Information Documents. If a Tenderer believes that an
Enquiry is confidential, it may identify
the Enquiry as confidential in its notice to RMS Representative. A determination will be made
by RMS acting reasonably (and, where appropriate, after obtaining advice), whether or not it is
appropriate to treat the Enquiry as confidential. If RMS determines that the Enquiry is not
appropriately confidential it will notify the Tenderer of this determination and the Tenderer may
withdraw the Enquiry within 2 days of such notification. Otherwise,
answers to that Enquiry may
be given by RMS in the form of addenda and issued to all Tenderers under clause 4.21(b) of this
Request for Tender or issued to all Tenderers as Information Documents. If RMS determines that
the Enquiry is appropriately confidential, the answer to the Enquiry, if any, will not be issued by
RMS to the other Tenderers. The fact that an Enquiry is confidential or determined by RMS to be
confidential, or is otherwise withdrawn by a Tenderer, does not limit or otherwise affect RMS’
rights under this Request for Tender. The decision of the RMS as to confidentiality may be made
by RMS in its absolute discretion.
(b)
RMS may amend the Tender Documents at any time prior to the Closing Date and Time,
including to vary the evaluation process or RMS’ requirements for the contractual structure
proposed for the carrying out of the Project. Any amendment to the Tender Documents will be
issued in the form of addenda and will be issued to all Tenderers before the Closing Date and
Time. No explanation or interpretation of the Tender Documents may be relied upon by the
Tenderer as an amendment to the Tender Documents unless given in the form of addenda. Such
addenda will become part of the Tender Documents.
4.22
D
EFINITIONS AND
I
NTERPRETATION
(a)
In these Tender Conditions and in the Tender Documents (except to the extent that meanings
given to defined terms in the Project Deed prevail under that document):
(i)
“ABC Commissioner” means the Australian Building and
Construction Commissioner
referred to in subsection 15(1) of the BCIIP Act;
(ii)
“ABCC” means the body referred to in section 29 of the BCIIP Act;
(iii)
“BCIIP Act” means the
Building and Construction Industry (Improving Productivity) Act
2016 (Cth);
(iv)
“Building Code” means the Building Code issued under subsection 34(1) of the BCIIP
Act, being the document titled 'Code for the Tendering and Performance of Building
Work 2016', which is available at www.legislation.gov.au
(v)
“Building Contractor” has the same
meaning as in the BCIIP Act;
(vi)
“Building Industry Participant” has the same meaning as in the BCIIP Act;
(vii)
“Building Work” has the same meaning as in subsection 3(4) of the Building Code;
(viii)
"Closing Date and Time" means [
insert date] , between 10:30am and 11:00am;
(ix)
“Commonwealth Funded Building Work” means Building Work in items 1-8 of Schedule
1 of the Building Code;
(x)
"Construction Site" has the meaning given to that term in the Project Deed;
(xi)
"DAB" means the Dispute Avoidance Board contemplated in clause 1.11 of this Request
for Tender;
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