TASIAST MAURITANIE LIMITED, S.A.
ZRA 741, BP 5051,
Nouakchott
Mauritania
Invitation letter: NDT inspection services for Ball Mills
Dear Sirs/Madams:
This request for Proposals, as amended or clarified from time to time (this “
RFP
”), relates to “NDT inspection
services for Ball Mills” at the
Tasiast Project
located in
Mauritania
(the “
Services
”). The documents
that form part of this RFP (the “
RFP Documents
”) are listed below.
The first documents that are part of this RFP are the cover page and this cover letter (the “
Invitation
Letter
”). This Invitation Letter is an invitation to you to submit a Proposal to provide the Services. The terms that
govern this RFP are set out in Exhibit B (the “
RFP Rules
”) of this Invitation Letter. All capitalized terms used
in this Invitation Letter have the definitions given to them in this Invitation Letter or the RFP Rules.
Your Proposal(s), and any other Proposal that TASIAST MAURITANIE LIMITED, S.A. (the “
Owner
”)
receives in respect of the Services, may be subject to negotiations. This RFP is expressly not a call for
tenders.
All actions and omissions of the Owner, the Representatives and the Bidders relating to the procurement
process contemplated by this RFP (the “
RFP Process
”) are governed exclusively by the RFP Rules. All
documents contained in this RFP should be treated as confidential as its disclosure to third parties
may cause automatic dismissal of the bidder.
Kindly complete, sign and return by
August 20
th
, the acknowledgement form contained in 0 (the “
Bidder
Acknowledgment Form
”) to (a) indicate whether or not you will participate in the RFP Process and
(b) if so, to confirm your acceptance of the RFP Rules. Kindly send a PDF of the signed Bidder
Acknowledgement Form by email to the Supply Chain representative identified on the cover page of this
RFP (the “
Supply Chain Representative
”).
This RFP is composed by the following Documents (in
black
the ones to be returned by bidder):
Document
Part of RFP
Description
date
Cover Page
RFP title and SC representative
Informative
Invitation Letter
Invitation to participate in the RFP
Informative
Acknowledgement Form
0
Letter of contractor´s acceptance to
participate/decline the RFP
August 20
th
RFP Rules
0
Rules that apply to the RFP process
Informative
Form of Contract
Exhibit C
Sample of contract to be signed
Informative
Scope of works
Schedule A
Scope of works
Informative
Pricing Template
Schedule B
Schedule of the prices proposed
August 27
th
Supplier Code of Conduct, VAT
Rules, Invoicing Process,
Contractor Entitlements
Schedules
C-D-E-F
Standard Attachments to all Contracts
August 27
th
Supplier Due Diligence
Questionnaire
Exhibit D
Kinross due diligence questionnaire
August 27
th
Health and Safety Requirements
for Bidders
Exhibit E
HSE obligations for contractors.
August 27
th
Contract Issues register template
Exhibit F
This schedule H is to reflect all clauses or
words in the contract (Schedule E) you
don´t agree with and therefore, you would
like to amend/delete. Please be aware
that, once the contract is awarded, no
other changes will be allowed
August 27
th
All other documents forming part
of this RFP under the RFP Rules,
including all Amendments and
Clarifications
Any other relevant documentation to
support the proposal (optional)
August 27
th
Kindly prepare your Main Proposal by completing each document identified in this Section, in accordance with
all instructions contained in the RFP Rules. You may submit one or more Alternative Proposals, in
accordance with the RFP Rules. The Owner will evaluate each Alternative Proposal based on the same
Criteria as the Main Proposal. Any Alternative Proposal, and any document forming part of an Alternative
Proposal, should be clearly identified as such.
Criteria
Importance
Commercial Terms
High
General Proven Experience
High
Previous Experience with TMLSA/TML/SENISA
Medium
Suitability of staff
High
HR & Training Plan
Medium
Licenses and permits
Medium
As of the date of this Invitation Letter, the expected timetable for the RFP Process is as follows:
Event
Date
“Acknowledge form” closing date
August 20
th
Bidder questions Submitted by
August 21
st
Owner Clarifications/Amendments by
August 23
rd
Closing day for Original Proposal and any Alternate Proposals
received by
August 27
th
After the Closing Date, the Owner will evaluate the Proposals and determine which of the actions set out in
Section 17 of the RFP Rules it will take. Please note that in accordance with Section 17 of the RFP
Rules, the Owner may, among other things, negotiate with one or more
Bidders
.
If you require further information, please contact the Supply Chain Representative.
Yours truly,
El Ghassem Gaouad
Contract administrator
TASIAST MAURITANIE LIMITED, S.A.
EXHIBIT A
BIDDER ACKNOWLEDGMENT FORM
[TO BE SUBMITTED ON BIDDER LETTERHEAD, before August 20
th
,2019.
TASIAST MAURITANIE LIMITED, S.A.
ZRA 741, BP 5051
Nouakchott, Mauritania
Attention:
Elghassem Gaouad
Email:
elghassem.gaouad@kinross.com
NDT inspection services for Ball Mills
RFP Number: TASI 1340
Closing Date:
August 27
th
2019..
We confirm receipt of your request for proposals dated
August 6
th
, 2019.
Related to NDT inspection
services for Ball Mills (the “
RFP
”). All capitalized terms used in this Bidder Acknowledgement Form have
the meanings given to them in the RFP.
We have reviewed the RFP and decided that (check one):
[ ] we will submit one or more Proposals on or before the Closing Date, and we have read, understood and
agree with the terms set out in the Invitation Letter and the RFP Rules; or
[ ] we decline to submit a Proposal and are returning the RFP to the above address. We are not submitting
a Proposal because
[bidder to insert]
.
Send all communications relating to the RFP to us at:
Company:
[bidder to insert]
Address:
[bidder to insert]
Attention:
[bidder to insert]
Telephone:
[bidder to insert]
Email:
[bidder to insert]
[BIDDER TO INSERT FULL LEGAL NAME]
[bidder to insert name of authorized signatory]
[bidder to insert title of authorized signatory]
6
EXHIBIT B
RFP RULES
1. Definitions
In these RFP Rules, the following terms have the respective meanings set out below.
“Alternative Proposal”
has the meaning given to it in Section 13.
“Amendment”
means any change to the Closing Date or Closing Time, or any deletion, addition, substitution
or other change to terms or other information relating to the RFP Process or this RFP that is issued to
Bidders
in writing by the Supply Chain Representative.
“Business Day”
means a day that is not a Saturday, Sunday or statutory holiday in
Nouakchott, Mauritania
.
“Claim” means any claim, demand, complaint, suit, action or cause of action, whether arising in contract,
tort or otherwise, and all costs and expenses relating thereto.
“Clarification”
means any explanation or interpretation relating to the RFP Process or this RFP that is issued
to one or more
Bidders
in writing by the Supply Chain Representative.
“Closing Date”
has the meaning given to it in the Invitation Letter.
“Conflict of Interest”
has the meaning given to it in Section 11.
“Contract”
means a definitive contract for the performance of the Services between the Owner and another
party, whether or not a Bidder.
“Criteria”
has the meaning given to it in Section 16.
“Due Diligence Questionnaire”
means the form contained as Schedule D.
“Form of Contract”
means the form of contract for the performance of the Services contained as
Exhibit C.
“Invitation Letter”
means the cover letter included in this RFP, inviting each Bidder to submit a Proposal to
perform the Services.
“Main Proposal”
has the meaning given to it in the Invitation Letter.
“Owner”
has the meaning given to it in the Invitation Letter.
“Preferred Bidders”
has the meaning given to it in Section 17.
“ Bidder”
means a bidder submitting a Proposal under this RFP.
“Bidder
Acknowledgment Form”
has the meaning given to it in the Invitation Letter.
“Bidders’ Meeting”
has the meaning given to it in Section
“Proposal”
means a Main Proposal or an Alternative Proposal.
“Representative”
means any of the Owner’s affiliates or subsidiaries and any director, officer, employee,
agent or representative of the Owner or any of its affiliates or subsidiaries.
“RFP”
has the meaning given to it in the Invitation Letter and includes the RFP Documents.
“RFP Documents”
has the meaning given to it in the Invitation Letter.
“RFP Process”
has the meaning given to it in the Invitation Letter.
“RFP Rules”
has the meaning given to it in the Invitation Letter.
“Self-Assessment”
means the form contained in Schedule C relating to a Bidder’s performance
against the Supplier Standards of Conduct.
“Services”
has the meaning given to it in the Invitation Letter.
“Supplier Standards of Conduct”
means the document contained in Schedule C, setting out
certain general requirements for the conduct of a Bidder’s business.
“Supply Chain Representative”
has the meaning given to it in the Invitation Letter.
2. Interpretation
In this RFP, words importing the singular include the plural and vice versa, and words importing gender
include all genders. The term “including” means “including without limitation,” and will not be given a
restrictive meaning because that word is followed by particular examples intended to fall within the
meaning of the general words, and the terms “include,” “includes” and “included” have similar meanings.
The term “will” has the same meaning as “shall.” A decision which is in the Owner’s “sole discretion” is
deemed to be in the Owner’s sole and absolute discretion. No rule of contractual interpretation to the effect
that any ambiguity is to be resolved against the Owner will be applicable in the interpretation of these
RFP Rules.
3. Governing Law
All matters relating to this RFP, the RFP Process and any Proposals are governed by, and are to be
construed and interpreted in accordance with, the laws of the Province of Ontario and the laws of
Canada applicable therein. Subject to Section 21, each of the Bidders irrevocably submits to the exclusive
jurisdiction of the courts the Province of Ontario in respect of all matters relating to this RFP and the RFP
Process.
4. Amendments and Clarifications
The Owner may, at any time, issue an Amendment or Clarification to this RFP, or cancel the RFP
Process, by written notice to the Bidders. This RFP will not be considered to be amended, clarified or
cancelled by any oral comment, explanation or interpretation by the Owner or any of the Representatives,
and accordingly, no Bidder may rely on any such oral comment, explanation or interpretation. Further, no
Bidder may rely on any amendment, clarification, cancellation or any other information whatsoever relating to
this RFP, and no term of this RFP may be amended or clarified in any way whatsoever, unless issued
by the Owner as an Amendment, a Clarification or a written notice of cancellation.
The Owner will issue all Amendments to this RFP as numbered authorized Amendments. The Owner
will issue all Clarifications to this RFP as numbered authorized Clarifications. All Amendments,
Clarifications and cancellations relating to this RFP that are issued by the Supply Chain Representative
identified on the cover page of this RFP will, automatically upon issue, become part of this RFP.
Each Bidder must include in its Proposal a statement that the Bidder has taken into account, in the
preparation of its Proposal, each Amendment and Clarification. If a controversy arises with respect to the
interpretation of a term of this RFP, and a Bidder has not sought a Clarification of that term (including any
provision in the Form of Contract), the Owner’s interpretation will govern. The Owner strongly encourages
each Bidder to contact the Supply Chain Representative at least five Business Days before the Closing Date
to confirm that such Bidder has received all Amendments and Clarifications.
Each Bidder is strongly discouraged from making any assumptions and encouraged to seek Clarifications with
respect to any questions that such Bidder might have, particularly related to any error or discrepancy
in this RFP identified by a Bidder.
Bidders
may not rely on any assumptions made or on any errors or
8
discrepancies.
Bidders
are responsible for seeking Clarifications with respect to any questions they may
have respecting commercial, technical or other issues.
Bidders
must submit in writing to the Supply Chain
Representative all questions respecting commercial, technical or other issues arising in respect of this
RFP, including in relation to any site visit.
The Owner may issue Amendments, Clarifications and any other notices or communications to any
Bidder by hand, fax, courier, mail or email. Except as otherwise provided in these RFP Rules, the Owner
will not be bound by responses to oral questions and will not answer any questions received within five
Business Days of the Closing Date.
5. Communications with Owner
Except as set out in Section 21, every question, notice or other communication from a Bidder to the Owner
that is required or permitted under this RFP must be in writing and delivered to the attention of the
Supply Chain Representative, using the contact details set out on the cover page of this RFP. Any
such communication may be delivered by hand, courier, mail or email. The Owner encourages
Bidders
to submit such questions, notices and other communications by email.
The Supply Chain Representative will act as a single point of contact for all Bidder questions or other
communications regarding the RFP or the RFP Process. During the RFP Process,
Bidders
may not
contact any representative of the Owner other than the Supply Chain Representative, except as
expressly permitted by these RFP Rules. The Owner reserves the right to exclude or disqualify from
the RFP Process any Bidder that violates this rule. No Bidder will engage in any conduct that would
cause the Owner or any of its Representatives to be in breach of any of the obligations set out in the
Owner’s Code of Business Conduct and Ethics.
6. Standards and Information
A Bidder may obtain any internal documents of the Owner that are mentioned but not included in this
RFP by contacting the Supply Chain Representative. Each Bidder must itself obtain any documents issued
by a standards organization or regulatory body that are mentioned in this RFP or any collective agreement
applicable to the Services. Each Bidder must ensure that it has the current version of all such documents that
are mentioned or applicable to this RFP, and take these documents into account in the preparation of any
Proposal.
7. Credit Information
Each Bidder authorizes the Owner to make credit enquiries about such Bidder and any of its affiliates, and
to receive and exchange credit information from credit reporting agencies or other persons with whom
the Bidder or any of its affiliates has or may expect to have financial dealings. Each Bidder must provide
the Owner with such Bidder’s (and, on request by the Owner, any of its affiliates’) audited financial
statements for the last three financial years for which they are available, and unaudited financial statements
for any period after the last audited period. If a Bidder submits financial statements from a parent company
to satisfy this requirement, the Owner will expect the Bidder to provide it with a parental guarantee if the
Bidder enters into a Contract with the Owner. Each Bidder will also provide the Owner with any other legal
or financial information respecting such Bidder or any of its affiliates that the Owner may reasonably
request.
8. Due Diligence
Each Bidder must conduct its own independent research and due diligence, including seeking any
independent advice considered necessary by the Bidder. Before submitting a Proposal, each Bidder must
thoroughly examine all the terms and other information contained in this RFP and, in particular, all the
information contained in the
enclosed schedules and exhibits
. Each Bidder is responsible for being
fully informed prior to submitting a Proposal as to:
(a) all aspects of performing the Services;
(b) all risks, contingencies and other circumstances that may influence its determination of the cost
of performing the Services or affect the contents of its Proposal;
(c) all existing conditions and limitations under which the Services will be provided;
(d) all required permits, consents, authorizations, approvals, licenses and inspections;
(e) all existing conditions and limitations respecting the operational environment at the applicable
site (including labour conditions, physical conditions, health and safety practices, other
administrative practices, normal working hours and the potential delays that may be
incurred as a result of limits on access or similar restraints, or as a result of other work being
conducted in the area where the Services are to be provided);
(f) all applicable load (including height, width and weight) and speed restrictions, if any, on railways
and roads;
(g) all requirements of the Supplier Standards of Conduct; and
(h) all terms of the Form of Contract.
(collectively, the “
Due Diligence Information
”).
The prices set out by each Bidder in its Proposal are deemed to include all the costs associated with
the Due Diligence Information. The Owner will make no allowance to any Bidder (whether by an extension
to the schedule for the Services, additional payment or otherwise) because of any failure to carry out
sufficient examinations or any failure to obtain any Due Diligence Information.
By submitting a Proposal, each Bidder represents and warrants to the Owner that:
(a) such Bidder has familiarized itself with all matters respecting the site, the Services and the Due
Diligence Information, including all special conditions respecting the site and the Services that
are not referred to in the Kinross documents that are part of this RFP;
(b) such Bidder has relied solely on the Bidder’s findings, conclusions, interpretations and
other opinions in evaluating the risks, contingencies and other circumstances that may be
encountered in performing the Services;
(c) such Bidder has made due allowance (including by way of pricing) for all those matters referred
to above in this Section 8 in the Proposal; and
(d) all information contained in the Proposal is accurate, complete and not misleading.
The Bidder’s obligations set out in this Section 8 apply irrespective of any Clarifications or Amendments or
information contained in this RFP.
9. Integrity of RFP Process
No Bidder will share information or otherwise communicate, either directly or indirectly, with any other
Bidder regarding the RFP Process, without written consent of the Owner.
Bidders will prepare and
submit their respective Proposals independently and without any knowledge, comparison of information or
arrangement, direct or indirect, with any other Bidder.
Further, no Bidder will engage in any conduct that
compromises, or could reasonably be perceived to compromise, the integrity of the RFP Process. No
Bidder will communicate with any person with a view to obtaining preferred treatment in the RFP Process.
Bidders
will promptly disclose
in a written statement to the Supply Chain Representative
any
situation
where a Bidder’s or any of its affiliates’ other commitments, relationships or financial interests could (or
could be perceived to) exercise an improper influence over the objective, unbiased and impartial exercise
of independent judgment by any Representative of the Owner (a “Conflict of Interest”).
Upon request by
10
the Owner, in its sole discretion, each Bidder will provide the Owner with such Bidder’s proposed means
to manage, mitigate or minimize to the greatest extent practicable any such Conflict of Interest together
with any additional information that the Owner considers necessary, in its sole discretion, to properly
assess the Conflict of Interest. The Owner may, in its sole discretion: (a) exclude any Bidder from the RFP
Process on the grounds of Conflict of Interest or (b) waive any and all Conflicts of Interest on such terms
and conditions as the Owner, in its sole discretion, requires to satisfy itself that the Conflict of Interest has
been appropriately managed, mitigated or minimized.
10. Equal Access to Information
If the Owner discovers that it has provided any Amendment or Clarification to any Bidder and such
Amendment or Clarification has not been provided to all
Bidders
, the Owner will promptly provide such
Amendment or Clarification to all other
Bidders
and, in the Owner’s sole discretion, the Owner may extend
the Closing Date by an Amendment. Notwithstanding the preceding sentence, the Owner may, in its sole
discretion, provide a Clarification to a single Bidder and not to other
Bidders
, if the Clarification is specific to that
Bidder.
11. Pricing
Each Bidder must submit a Proposal containing pricing terms, denominated in Mauritanian Ouguiyas
(MRU), for the completion of the entire scope of Services. The pricing offered by each Bidder in its
Proposal must include all applicable taxes
and statutory withholdings, except Mauritanian value-added tax
(VAT), if applicable.
Each Bidder must complete the Pricing Template included as Schedule B.
12. Main Proposal
Bidders
will submit their Proposals to the Owner in accordance with all the terms of this RFP. The
Owner strongly encourages each Bidder to submit a Proposal that satisfies all the technical,
commercial and other requirements of this RFP (the “
Main Proposal
”). Any Proposal containing
amendments, qualifications or exceptions to the requirements of this RFP, or that is otherwise
incomplete, will be considered to be an Alternative Proposal.
Each Bidder is deemed to have offered to agree to each term in this RFP (including all terms of the
Form of Contract) that the Bidder has not expressly amended or qualified, or in respect of which no
exception has been submitted. Unless a Proposal is specifically identified as, or clearly intended to be, an
Alternative Proposal, the Owner will assume that any explanatory or descriptive material included in a Proposal
does not constitute an amendment, qualification or exception to the requirements of this RFP.
All Proposals must be in the
English
language and be composed of the following items, completed in
accordance with all instructions contained in this RFP:
Exhibit A. Bidder Acknowledgement Form signed by an authorized representative of
the Bidder
Schedule B. Pricing template
Schedule C. Supplier Standard of Conduct
Schedule D. Due Diligence Questionnaire
Schedule E. Health and Safety Requirements for Bidders
Schedule F. Contract Issue Register
Technical Proposal according to the Scope of Work
document (Schedule A). Technical
Proposal shall include, not limited to, the following elements:
a) Presentation of the Services with clear indication of:
- CV´s of deployed personnel
- Related proven experience with TMLSA/TML/SENISA of management
- Related proven experience with other Clients of deployed personnel
- Related experience in managing emergency situations of Supervisors and
Team Leaders
- HR Plan and Training Plan
- Licenses and/or permits to operate
The Owner may, in its sole discretion, accept or reject any Proposal that is not composed of the items
listed above, or that includes forms that have not been completed in accordance with all instructions
contained in this RFP.
The Supply Chain Representative may, upon request from a Bidder, exempt that Bidder from the
requirement to complete and submit a Due
Diligence
Questionnaire and/or Self-
Assessment as part of its Proposal if that Bidder has previously submitted these items. The Owner
may approve or deny any such request in its sole discretion.
13. Alternative Proposal
A Bidder may submit more than one Proposal. If a Bidder wishes to make any amendments, qualifications
or exceptions to the requirements of this RFP, the Bidder is required to submit (a) a Main Proposal in
accordance with all the requirements of this RFP and (b) one or more additional Proposals containing all
such amendments, qualifications and exceptions (any one of which is referred to as an “
Alternative
Proposal
”).
If a Bidder submits any exceptions or proposes any changes to the Form of Contract, the Proposal containing
such exceptions or changes will be deemed to constitute an Alternative Proposal.
The pricing information for any Alternative Proposal should be included in the
Pricing Template
and should
be clearly identified as an Alternative Proposal. The Owner may reject, any Proposal containing only an
Alternative Proposal and no Main Proposal. All Bidders are advised of this risk if a Bidder chooses to submit
only an Alternative Proposal and no Main Proposal.
Nevertheless, the Owner welcomes any Alternative Proposal that a Bidder considers appropriate in
light of its technical and commercial knowledge. A Bidder should make clear in any Alternative Proposal the
advantages and disadvantages of the proposed alternative.
Each Bidder must state expressly, in any Alternative Proposal, all of the proposed amendments,
qualifications and exceptions to the requirements of this RFP. Exceptions to the Form of Contract must be
set out precisely on a line-by-line basis [in chart format / in comparison format (such as Microsoft Word Track
Changes)], with specific alternate wording provided, in the Schedule F, Contract Issues Register template.
As noted above, each Bidder is deemed to have offered to agree to each term in this RFP that the
Bidder has not expressly amended or qualified, or in respect of which no exception has been submitted.
The Owner will evaluate each Alternative Proposal based on the same Criteria as the Main Proposal.
Each Bidder that submits an Alternative Proposal will provide the Owner with such information as the
Owner may request to evaluate the Alternative Proposal.
The Owner may cancel the RFP Process and issue a new request for proposals based on any
Alternative Proposal, except to the extent that such Alternative Proposal is based on trade secrets of
the Bidder and the Bidder has disclosed such trade secrets in its Alternative Proposal.
14. Submission of Proposals
12
Each Bidder must submit one electronic copy of each required form in Pdf (including copies of each required form,
with each copy of the
Pricing Template
) and addressed to:
elghassem.gaouad@kinross.com
15. Withdrawal or Revision of Proposals
A Bidder may withdraw any previously submitted Proposal at any time prior to the Closing Time on the
Closing Date, by submitting a notice signed by an authorized signatory of the Bidder requesting the removal
of the Bidder’s submitted Proposal. The Bidder must deliver its notice to the Supply Chain Representative.
A Bidder may revise all or part of a previously submitted Proposal at any time up to the Closing Time on the
Closing Date by delivering a new Proposal to the Closing Location. Subject to Section 13 relating to the
submission of one or more Alternative Proposals, the last Proposal submitted by a Bidder will supersede all
previously submitted Proposals from that Bidder.
At the opening of the Proposals, the Owner will discard, unopened, all superseded Proposals. It is the
responsibility of each Bidder to clearly indicate to the Owner in writing which Proposals, if any, are to
be discarded.
16. Evaluation Criteria and Methodology
The Owner will evaluate each Proposal to determine which Proposal best satisfies the Owner’s requirements,
based on the criteria set out in this RFP (the “
Criteria
”). The Owner is under no obligation to discuss the contents
or evaluation of any Proposal with any Bidder. The Criteria may be changed by an Amendment.
After the Closing Date, Owner may interview any Bidder and may specifically seek clarification or additional
information in any format whatsoever in respect of such Bidder’s Proposal. The response received by
Owner from a Bidder will, if accepted by Owner, form part of such Bidder’s Proposal.
Owner may verify with a Bidder or any third party any information set out in such Bidder’s Proposal. Owner
may check any references of a Bidder in addition to any references submitted in such Bidder’s Proposal.
Each Bidder authorizes Owner to make any enquiries about such Bidder, any affiliates of such Bidder, and
such Bidder’s Proposal for the purpose of verifying any such information.
Owner will have the right, at any time and in its sole discretion, to consider in the evaluation of the Proposals
or in the exercise of any of its rights under this RFP (a) any instances of poor performance by a Bidder that
Owner or its affiliates have experienced and (b) any information about a Bidder that is, in Owner’s sole
discretion, credible information. If Owner receives information at any time that, in Owner’s view, reveals
that earlier information submitted by such Bidder is inaccurate, incomplete or misleading, Owner may, in its
sole discretion, re-evaluate such Bidder’s Proposal based on the Criteria and take such other actions as
Owner considers appropriate in the circumstances.
Owner is not obliged, however, under any circumstance, to seek any clarification or any additional
information from any Bidder or any third party.
17. Negotiation and Contract
Each Proposal will constitute an offer by the Bidder to the Owner to enter into a Contract on the terms
of that Proposal (including the terms of the Form of Contract, subject to any amendment or qualification
of those terms set out in an Alternative Proposal). The Supplier Standards of Conduct will form part of
any Contract.
Nothing in this RFP constitutes an offer of any kind whatsoever by Owner to any Bidder. This RFP is not
an offer to enter into either a bidding contract (often referred to as “Contract A”) or a contract to perform the
Services (often referred to as “Contract B”)
. The Owner is not obliged to accept the Proposal with the
lowest price, negotiate with the Bidder whose Proposal contains the lowest price, accept any Proposal
whatsoever or negotiate with any Bidder whatsoever.
The Owner may reject all Proposals, cancel the RFP Process or accept or negotiate any Proposal in whole or
in part, at the Owner’s sole discretion. The Owner may seek additional Proposals. The Owner may enter into
a Contract with a party that is not a Bidder, use its own resources to perform the Services or extend or
renegotiate an existing agreement for performance of the Services.
Once the Owner has undertaken its evaluation (and any re-evaluation for any reason) of each of the
Proposals based on the Criteria, the Owner may, in its sole discretion, and without taking into account
any custom, usage or agreement in the industry or trade, any other policy or practice or any other term in this
RFP, take any of the following actions:
(a) enter into a Contract, based on the relevant Proposal, with the Bidder whose Proposal best
satisfies the Criteria, in the Owner’s sole discretion;
(b) select one or more preferred Bidders (each, a “
Preferred Bidder
”) with whom to begin
negotiating a Contract (which negotiations may be sequential or simultaneous, in the Owner’s sole
discretion) based on the offer of each such Preferred Bidder set out in its Proposal;
(c) cancel the RFP Process and not enter into a Contract with any Bidder; or
(d) cancel the RFP Process and issue a new request for proposals, tender or otherwise for some or
all of the Services.
If the Owner proceeds in the manner described in Section 17(b), the Owner may change the scope of
Services or change any other terms or information contained in this RFP, and otherwise negotiate all
aspects of a Contract with the Preferred Bidder(s), including the commercial terms and legal terms, in
any manner whatsoever. The Owner will not disclose any such changes to any Bidder that is not a Preferred
Bidder.
The Owner will not, by selecting any Preferred Bidder and beginning negotiations with such Preferred
Bidder, be considered to have entered into any binding agreement with such Preferred Bidder for the
performance of the Services or any other matter. Based on the negotiations and the Criteria, the Owner
will choose, in its sole discretion, the Preferred Bidder(s), if any, with whom to enter into a Contract on
agreed terms.
If the Owner proceeds in the manner described in Section 17(b), the Owner may, in its sole discretion,
subsequently proceed under Section 17(c) or Section
17(d)
for any reason whatsoever.
Any time after one or more Preferred Bidders have been identified, the Owner will formally notify the Bidders
who were not successful in the RFP Process that they have not been selected. Any time after the Owner
has entered into a final Contract, the Owner, in its sole discretion, may meet with any unsuccessful Bidder
to provide a debriefing.
All of the terms in this Section 17 apply despite any other term in these RFP Rules.
18. Confidentiality
When receiving this RFP, each Bidder enters into a confidentiality agreement with the Owner that
applies to this RFP and the RFP Process. The fact that the Owner is conducting the RFP Process is
confidential information of the Owner, as is and the material contained in this RFP or disclosed in connection
with the RFP Process. This RFP is the sole property of the Owner.
Except with the approval of a Bidder, under no circumstances will the Owner disclose any information
contained in a Proposal of that Bidder to any other Bidder, including a Preferred Bidder. The Owner will,
however, disclose that part of any Proposal that the Owner is required to disclose under applicable law.
In addition, the Owner may disclose any information contained in a Proposal, on a confidential basis, to
14
its affiliates and advisors.
19. Costs
Each Bidder will be solely responsible for all of its costs and other expenses in respect of the RFP
Process, the preparation or revision of any Proposal and the negotiation of any Contract, regardless
of the outcome of the RFP Process.
20. No Representations or Warranties
The Owner has included statements of facts and other information in this RFP merely for the general
information of the
Bidders
. Neither the Owner nor any of the Representatives make any representation,
warranty or guarantee, express, implied or otherwise, as to the accuracy or completeness of any of
these statements or other information or any subsequent written or oral statements of fact or other
information provided to any Bidder.
Each Bidder (on its own behalf and on behalf of its affiliates, subcontractors of any tier, and proposed
subcontractors of any tier) releases the Owner and all Representatives from all Claims in respect of all
such statements, other information and any representation, warranty or guarantee contained in, or
omitted from, this RFP or in any subsequent written or oral statements of fact or other information
provided to any Bidder.
21. Finality
The Owner’s evaluation process and ultimate selection of a successful Bidder (if any) are final and binding
on all
Bidders
. All the terms of this RFP are expressly set out in this RFP and there are no implied terms
relating to this RFP. Despite any other term in this RFP, no Bidder may make any Claim against or in respect
of the Owner or any Representatives to any court, other adjudicative body, governmental authority or
regulatory authority relating to this RFP or the RFP Process for any reason whatsoever, including
interpretation of this RFP, application of the RFP Rules, conduct of the process of evaluation, conduct
of negotiations, exclusion of a Bidder, selection of a Preferred Bidder or the successful Bidder or the
selection of no Preferred Bidder or successful Bidder.
Without limiting the generality of the foregoing, no Bidder may seek any judgment, order, decree,
injunction, declaration or other relief relating to this RFP or the RFP Process, including relief relating
to the notion that any Proposal was the “lowest” or “best” Proposal, that any Bidder should be selected
as the successful Bidder, that the Owner erred in its evaluation of any Proposal or that the Owner or
Representatives otherwise exercised any discretion or conducted the RFP Process in an inappropriate,
unreasonable or unfair manner.
Each Bidder (on its own behalf and on behalf of its affiliates, subcontractors of any tier, and proposed
subcontractors of any tier) releases the Owner and all Representatives from all such Claims. In no event
whatsoever will the Owner or Representatives be liable to any Bidder (or its affiliates, subcontractors of any
tier, or proposed subcontractors of any tier) for indirect, special or consequential damages, including lost
profits and loss of opportunity. The Bidder will indemnify the Owner and Representatives in respect of all
Claims made against the Owner or Representatives by any affiliate, subcontractor of any tier, or proposed
subcontractor of any tier, of the Bidder relating to this RFP or the RFP Process.
Should a Bidder have any complaint or concern regarding this RFP or the RFP Process, the Bidder is
encouraged to submit such complaint or concern in writing to:
Fernando Solsona
Contract Services Regional Manager
Fernando.solsona@kinross.com
22. Rights of the Owner
Notwithstanding anything else in this RFP, the Owner has the right, in its sole discretion:
(a) to change the dates, schedule, deadlines, process and requirements described in this
RFP;
(b) to accept or reject any or all Proposals;
(c) to disqualify any Bidder that does not meet the requirements of this RFP or the RFP
Process, including a Bidder that contravenes any prohibition or requirement set out in this
RFP, or waive compliance with any such prohibition or requirement;
(d) to change the description and scope of the Services;
(e) to reissue the same RFP Documents or different documents in relation to the Services;
(f) to cancel the RFP Process; or
(g) to elect not to proceed with the Services for any reason whatsoever,
in each case, without incurring any liability for costs and damages incurred by Bidder or any of its
affiliates, subcontractors of any tier, or proposed subcontractors of any tier.
23. Acceptance of Terms
If a Bidder has not signed and delivered to the Owner the Bidder Acknowledgement Form, then by
submitting a Proposal, each Bidder who submits a Proposal is deemed to agree to the terms of the
Invitation Letter and these RFP.
16
