Bid Specifications for the Processing of Confiscated Abalone on Behalf of the Department

THE MARINE LIVING RESOURCES FUND:DAFF AS AN ORGAN OF STATE SUBSCRIBES TO AND PROPAGATES BOTH THE NOTION OF BROAD BASED BLACK ECONOMIC EMPOWERMENT (BBBEE) ACT, No. 53 Of 2003 AND THE PREFERENTIAL PROCUREMENT POLICY FRAMEWORK ACT, No. 5 of 2000

MLRF BID: 084 TERMS OF REFERENCE FOR THE PROCESSING OF CONFISCATED FISH PRODUCTS ON BEHALF OF THE MARINE LIVING RESOURCES FUND/DAFF

1. INTRODUCTION

The Marine Living Resources Fund ("the Department") requires the service of a Specialist Service Provider to process confiscated product on behalf of the Department for a period of two years.

2. BACKGROUND.

2.1 In terms of sections 63, 68 and 69 of the Marine Living Resources Act, 1998 (Act No. 18 of 1998) ("the Act"), the Department is responsible for the disposal of any confiscated fish or other things of a perishable nature.

2.2 Some of the confiscated abalone may be unfit for processing. Any products certified by the South African Bureau of Standards ("the SABS”) as unfit for human consumption may not be processed or sold and must be returned to the Department for destruction in accordance with the procedures stipulated by the Department.

2.3 Preference will be given to Service Provider that is able to process the products in the forms that would create most value, being frozen, or dried.

3. SCOPE OF WORK

3.1 The Service Provider will be required to carry on the following work in the manner stipulated below –

PROCESSING

(a) The Products is stored by the Department at its cold store storage facilities in Cape Town (“the cold store”). The Service Provider will be required to collect the abalone from the cold

1 store and to transport it to the nominated fish processing establishment at its own expense.

(b) Receipt of any products from the Department’s cold store must only be undertaken in the presence of a member of the Monitoring, Marketing and Selling Service Provider. The Monitoring, Marketing and Selling Service Provider shall count, monitor and record all products receipted by the Service Provider at the cold store.

(c) The Service Provider must perform a full inventory count of abalone held at the nominated fish processing establishment immediately prior to it receipting any abalone from the Department’s cold store. This inventory count must take place at most 24 hours prior to the Service Provider receipting any abalone from the Department’s cold store and must take place in the presence of Monitoring Marketing and Selling Service Provider member who will observe and record the inventory count. The product belonging to the processors must be separated from that of the Department.

(d) Once the abalone is receipted by the Service Provider, as provided above, from the Department’s cold store, it must then be transported by the Service Provider in appropriately equipped vehicles that are reliable and secure.

(e) Upon the abalone being received at the nominated fish processing establishment, the abalone must be weighed before and after the thawing process and the respective weights recorded in the presence of Monitoring, Marketing and Selling Service Provider.

(f) The Service Provider must carefully record the weight of the packaging and hand it back to the Department via Monitoring, Marketing and Selling Service Provider for destruction.

(g) The Service Provider must use skilled food handlers to sort the abalone depending on whether the product is fit for human consumption or not. The abalone that is considered fit for human consumption must be shucked, gutted and washed and processed immediately. The abalone that is considered unfit for human consumption must be handed back to the Department via appointed monitoring company for destruction. The Monitoring, Marketing and Selling

2 Service Provider will conduct daily recordings of weights and counts throughout the process.

(h) The abalone considered fit for human consumption must be processed in accordance with the current SABS protocol for the processing of wild abalone as well as the protocol for the processing of confiscated product.

(i) The Service Provider must accurately monitor and record in detail all weight loss suffered by abalone during the processing. This record must be certified as true and correct by the appointed Monitoring, Marketing and Selling Service Provider. All variances observed by the Monitoring, Marketing and Selling Service Provider must be reported to the Department in writing.

(j) The Service Provider must accurately monitor and record in detail all abalone declared in terms of SABS protocol as fit or unfit for human consumption.

(k) The Service Provider must identify the abalone products with uniquely numbered labels, approved by the Department.

(l) The Service Provider must store the abalone products in a secure place and provide 24 hour monitoring and security measures at such storage place.

(m) The Service Provider must be capable of processing no less than 10 tons (ten tons) of product per month.

(n) The Service Provider must provide and maintain a consistent workforce and any changes must be communicated and approved by the Department.

4. PRICING AND PAYMENT

4.1 The Service Provider must complete the pricing schedule in Annexure A.

4.2 The Service Provider must bid set fees in South African Rand (inclusive of VAT). The fees must reflect the following:

3 4.2.1 The cost per ton for transporting the abalone as instructed by the Department in suitable vehicles, as well as the envisaged costs of providing the requisite security;

4.2.2 the cost per kilogram for thawing, sorting and cleaning the abalone;

4.2.3 the cost per kilogram for drying and re-drying of abalone that is certified by the SABS as suitable for human consumption; and

4.3 The Service provider must provide the Department with a detailed monthly invoice for the processing of the product.

4.4 Only once the Department has received a detailed monthly tax invoice for the costs of processing the product that month, and the Department approves such invoice, will it make direct payments to the successful service provider for their costs. Such payment will take place within 30 days of the Department receiving payment for the sale of the product via the Monitoring, Marketing and Selling Service Provider.

5. SPECIAL CONDITIONS OF THE BID

5.1 In order to be eligible to participate in the processing of confiscated abalone, a Service Provider(s) must—

(a) Be a South African person as defined in the Act;

(b) Have a right granted under section 18 of the Act to operate a fish processing establishment which is authorised to process wild products;

(b) Have a certificate issued by the SABS stating specifically that the establishment complies with the health regulations relating to the processing of wild abalone;

(d) Not have any convictions or pending charges under the Act;

(e) Be able to process a minimum of 10 tons of products per month; and

(g) Only appoint South African staff to process the confiscated products.

4 5.2 The Service Provider will be responsible for all arrangements and costs associated with the processing of the abalone and must supply the Department via the Monitoring, Marketing and Selling Service Provider with copies of all the processing documentation.

5.3 Notwithstanding the award of this bid to the Service Provider, the Department reserves the right to retain possession of the confiscated abalone, unprocessed or processed, if, in the opinion of the Department, there are sound reasons for doing so. Should the Department decide to do this, it will not be liable for any costs incurred by the Service Provider.

5.4 The Department will assign a dedicated project manager and project management team who will liaise with the Service Providers and manage the quality of their outputs.

5.5 The Monitoring, Marketing and Selling Service Provider will monitor all aspects of the processing process and the Service Provider will not be permitted to handle, move or process any of the confiscated products in the absence of the Monitoring, Marketing and Selling Service Provider.

5.6 The Service Provider must take delivery of the products and must arrange for an authorised representative to do so on its/their behalf.

5.7 The Department does not make any warranty and neither does it provide any guarantees as to the quality of some or all of the abalone to be disposed of under this bid. The Service Provider shall assume the risk that some; most or all the abalone to be processed in terms of this bid is unfit for human consumption.

5.8 Prior to the removal of the products from the cold store, the Service Provider shall ensure that the exact quantities and/or lots have been received and the Service Provider shall be required to give clear receipts for the mass of abalone received before the removal thereof from the cold store. No adjustments or amendments of quantities or weights shall be considered after the removal of the abalone from the cold store.

5.9 The Service Provider must obtain a transport permit from the Department to transport the abalone from the cold store to the nominated fish processing establishment as well as transporting the abalone from the processing establishment to the cold store of the

5 Department in the presence of the Monitoring, Marketing and Selling Service Provider.

5.10 The Service Provider must provide safe and secure premises to store the unprocessed and processed products. These premises must be accessible to the Department for inspection purposes at any reasonable given date and time.

5.11 The Service Provider will be responsible for all arrangements and costs associated with the obtaining and maintenance of appropriate insurance cover for the abalone and must supply the Department with copies of all the documentation relating to the insurance before the abalone will be released to it.

5.12 The Service Provider will be responsible for all arrangements and costs associated with obtaining and maintaining appropriate security pertaining to the transportation and processing of the abalone. The Service Provider must ensure that there is controlled access to the abalone and that adequate security measures are in place to prevent the theft or sabotage of the abalone. The Service Provider must provide the Department with copies of the documentation relating to the security arrangements before any abalone will be released to it.

5.13 The Service Provider will be required to insure the abalone for the benefit of the Department while it is in the Service Provider possession.

5.14 The successful Service Provider must clearly establish that it is able to –

(a) Keep an accurate stock register of the processed and unprocessed abalone and this stock register must at all times be readily available for inspection by representatives from the Department;

(b) Provide timeframes for processing abalone certified by the SABS as suitable for human consumption into, frozen and dried (in kg/day), for shucked frozen abalone and for re- drying of dried abalone (in kg/days);

(c) It can thaw, sort, clean and process no less than 10 tons of wild abalone per calendar month;

(d) Process the mass of abalone within the timeframes indicated, and must start with the processing not more than 10 (ten)

6 working days after receiving the letter of acceptance or of being notified of the award of the bid.

5.15 The bid proposals should be submitted with all required information containing technical information as well as price information (NB: MLRF Entity Maintenance form included in the bid documents must be completed and returned with the bid proposals). 5.16 Only bidders who score at least 60 % for the technical information will be preferred. The technical evaluation will be done first. Those companies who score less than 60% for technical criteria will automatically be excluded from further evaluation. At this stage the price and preferential points will be scored. Following this, the top three scoring companies will be contacted for a possible site visit to confirm all information submitted in their bid proposal. 5.17 The service providers who do not supply information in respect of HDI preference points or who are found to have supplied incorrect information in the affidavit provided for in the bid documents will be disqualified. 5.18 The BEE scorecard from reputable service providers will be considered during the evaluation for HDI claims. 5.19 Preference will be given to BEE companies. 5.20 A service level agreement shall be signed with the preferred bidder. The successful bidder may not alter its (buy out HDI points) BEE status during the contract period. MLRF reserve the right to terminate the contract should the successful bidder no longer meet the BEE requirement. 5.21 MLRF reserves the right to invite short listed suppliers/companies to present their bid proposals for final decision. 5.22 Bidders must be prepared to work at rates not exceeding those prescribed by the office of the Auditor-General or the Department of Public Service and Administration (DPSA). 5.23 Suppliers are required to fill the information below:

7 % Management by HDI groups. Number of consultants from HDI groups working on the project.

5.24 The successful Service Provider will have to enter into a service level agreement with the Department.

5.25 The above special conditions form an integral part of the bid and will form part of any service level agreement to be concluded between the Service Provider and the Department. Any failure to comply with these special conditions in the bid proposal may invalidate the bid and will adversely affect the evaluation.

6 SERVICE LEVEL AGREEMENT 6.1 The successful bidder will be required to sign an appropriate service level agreement (SLA) with the MLRF. A template of a standard SLA is attached as Annexure 2 and MLRF reserves the right to amend and supplement the agreement to the extent it may be relevant to this particular bid. The successful bidder will be expected to comply with the relevant provisions of the Public Finance Management Act, (Act 1of 1999 as amended by Act 29 of 1999) details of which will be contained in the SLA and other financial reporting which the department may require. 6.2 MLRF will implement a penalty system (10% of total payment) for failure to deliver as agreed. 6.3 Once the bidder has forwarded a proposal, any change in the HDI status or ownership of the bidder during the bid process, which negatively impacts on the evaluation of the bid, prior to or at any time after the award of the bid, must be submitted in writing to department who reserves the

8 right to exclude the bidder from the process; or award the bid to another company or to cancel the SLA. 6.4 If the service provider and department are not able to reach agreement on the terms of the contract, department can withdraw the award of the bid and/or appoint another service provider. 6.5 Payment will be made in accordance with the requirements of the Public Finance Management Act, 1999 (Act No.1 of 1999 as amended by Act 29 of 1999).

7 TIMING OF ASSIGNMENT

7.1 All work is to be carried out in accordance with the time schedule as agreed with the Programme manager.

8 PERFORMANCE MEASURES

8.1 The performance measures for the delivery of the deliverables (see 3) will be closely monitored by the project manager.

9 REPORTING

9.1 The service provider will meet every second month with the Programme manager to report on the progress of the project.

10 MONITORING PROGRESS ON ASSIGNMENTS

9 10.1 The Programme manager shall do the ongoing management of the Service Level agreement. 10.2 The Programme manager shall do on-site monitoring where necessary for the duration of the project.

11 CONDITIONS OF BID

11.1 Bid will be subject to Supply Chain Management conditions as follows: 11.1.1 The Preferential Procurement Policy Framework Act (Act No. 05 of 2000) and the Broad Based Black Economic Empowerment Act, (Act 53 of 2003) and its codes of good practice as promulgated on 9 February 2007. 11.1.2 In accordance with these Acts, submissions will be evaluated against the technical criteria and adjudicated on the 90/10 points system. Price and technical scores will make up the total of 90 points. The remaining 10 points will be split in accordance with the SBD 6.1 document. 11.2 The proposal should include, amongst other, the following: 11.2.1 A detailed work plan of the proposed project, including time frames, indicating all activities. 11.2.2 A list of previous references where work of a similar nature was performed in the past years. 11.2.3 Ability to ensure continuing of staff on the project. 11.2.4 A briefing meeting will be held on (date, time & place) determine by MLRF. 11.3 The bidder(s) must complete Annexure A. 11.4 Each Bidder has to submit its bid free of any qualifications or amendments of the bid conditions. 11.5 The Bidder must have no convictions under the Act.

10 12 CLOSING TIME OF BID

12.1 The closing time for the receipt of the bid in response to this invitation is 11h00 on 3 December 2010 12.2 All bids must be submitted in sealed envelope bearing the bid number, description of bid and closing date. 12.3 All documentation must be received before the closing time stipulated above

13 SITE MEETING

13.1 A site meeting will be held at the Department of Agriculture, Forestry and Fisheries (MLRF) in respect of this bid invitation. The details of the site meeting are as follow:

Date: 19 November 2010 Time: 10h00 Venue: Department of Agriculture, Forestry and Fisheries, Fore trust Building, Martin Hammerschlag Way, Foreshore Contact person: Mohale Shai Telephone No.: 021-402 3392 Cell No.: 082 956 1105 13.2 The purpose of the site meeting is to enable the service providers to acquaint themselves with the requirements of MLRF and the nature of the services to be provided. 13.3 The service providers will be required to sign certificate of attendance attached and submit such signed certificate with its bid documents. In addition the service providers should sign the attendance register on the date of meeting. Signature of these documents will constitute proof of compliance with this condition.

11 14. The validity period of the bid is 90 days.

15. ADDITIONAL INFORMATION ON BID PROPOSAL

15.1 A breakdown of the hourly tariff inclusive of value-added tax for services rendered. 15.2 MLRF will not be held responsible for any costs incurred by the bidder in the preparation and submission of the bids. 15.3 Please take note that MLRF is not bound to select any of the firms submitting proposals. MLRF reserves the right not to award any of the bids and not to award the contract to the lowest bidding price as well as to renegotiate the bid of the preferred applicant. 15.4 Travelling costs and time spent or incurred between home and office of consultants and MLRF head office will not be for the account of MLRF.

16.FURTHER INFORMATION 16.1 Should you require any further information in this regard, contact Mr. Mohale Shai at 021 402 3392 or 082 956 1105

17.INFORMATION REQUIRED 17.1 Bid Evaluation can only be done on the basis of information, which we asked for. The comprehensiveness of the bid can therefore be decisive in the awarding thereof.

18.PAYMENT TERMS 18.1 The Department undertakes to pay in full within 30 (thirty) days all valid claims for work done to its satisfaction upon presentation of a substantiated claim.

19. COMMENCEMENT AND DURATION

19.1 It is envisaged that the successful bidder(s) will commence processing the products within 10 days of receiving a written instruction to do so from the Department. 20.IN EVALUATING THE TECHNICAL INFORMATION CONTAINED IN THE BID, THE EVALUATION COMMITTEE WILL BE GUIDED BY THE FOLLOWING :

20.1 Bidder understands of the brief – The bid provides a clear indication that the bidder fully understands the purpose and scope of the work and the bidders’ own roles and functions in this regard. 20.2 Capability – The bid provides a clear indication that the bidder’s team comprises people with the necessary experience, skills, qualifications, knowledge and skills required to ensure the efficient and effective generation of the required deliverables to the highest standards of quality. 20.3 Track Record – The bid provides clear information on previous, relevant projects that confirm that the bidder has the required experience and success track record in the area of general project management and management related projects. 20.4 Quality of the Bid – The bid is structured, laid-out, formatted and organized in such a way that the evaluation committee is easily able to access the bid in accordance with the evaluation criteria and is provided with an insight into the quality of deliverables that may be expected from the bidder if successful.

21.EVALUATION CRITERIA

13 21.1 All bid proposals submitted will be adjudicated in accordance with the 90/10 principles and the evaluation criteria. 21.2. Total points obtained for price and functionality will be converted to 90/10 preference points system in order to obtain point out of 90. The bids will be evaluated by a panel on a basis of price 40 point and calculate the points scored for functionality 50 point .For the remaining 10 points, certain goals have been targeted and points allocated for these goals are indicated in the enclosed form SBD 6.1 and must be completed in detail. (HDI 3, Woman 2, Disability 2, SMME 2. and Location 1.) 21.3. A three phase evaluation process will occur. Phase A the price criteria will be considered, Phase B the technical criteria will be considered (Bids that fail to score >60% on technical criteria, will not be considered for Phase a & C) and Phase C specific goals as claimed in SBD 6.1 document will be considered. Bids must therefore contain notes relating to the criteria as indicate in the table below:

Phase A. No. Category Total Score

PRICE 30

14 Phase B EVALUATION FOR FUNCTIONALITY

Values: 1= Poor; 2=Average; 3=Good; 4=Very Good; 5=Excellent

WEIGHTS VALUE SCORE CRITERIA 1 Level of experience in similar field 10 5 50 and qualifications of personnel – CVs to be submitted. Each Bidder has to demonstrate their ability to process the product in the various categories as stated in the bid document and at least 10 tons per month 2 Accreditation/registration with any 10 5 50 relevant institutions Bidder has to submit either an original or certified copy of the original SABS certificate which certifies that only the bidder owns a fish processing establishment which authorises only the bidder to process abalone in accordance with applicable health regulations. 3 Compliance with the requirements 30 5 150 as set out in the scope of work (Terms of Reference) Bidder understands the brief and the methodology to be employed and has to completed the pricing schedule or the price has to be determinable from Annexure A in the bid documents. 4 Quality of proposal to the 10 5 50 Department. A proposed plan of action to achieve the objectives should be submitted for evaluation with allocated budget.

60(a) 300

15 Calculate the points scored for functionality according to the following formula:

So Ps = ------X AP Ms

Ps= percentage scored for functionality by proposal under consideration So=total score of proposal under consideration Ms=maximum possible score, i.e. 5 x (a) =300 AP=percentage allocated for functionality (in this Bid) =60

Total points scored by bidder on functionality: Ps =------X 60 = 300

Phase C

EQUITY OWNERSHIP 10 HDI 3 Women Equity Ownership 2 Disability 2 SMME 2 South African company based in the Rural 1 Coastal town

ANNEXURE A

16 PRICING SCHEDULE AND ADDITIONAL INFORMATION THAT IS REQUIRED WITH BID.

A. The pricing schedules below calls for the bidding of unit prices for the processing and selling of abalone on behalf of the department and must be completed by the bidder(s).

1. Defrosting and sorting

This pricing will be calculated on the mass of abalone (including packaging) as recorded at the cold store when the Department hands over the abalone to the tenderer(s).

R/Kg Defrosting and sorting of received mass of frozen shucked abalone. Defrosting and sorting of received mass of cooked/half cooked abalone. Defrosting and sorting of received mass of dried/partially dried abalone.

2. Cleaning

This pricing will be calculated on the mass of abalone (excluding packaging) that was certified by the SABS as fit for human consumption.

R/Kg Cleaning of mass of frozen shucked abalone that was certified by the SABS. Cleaning of mass of cooked/half cooked abalone that was certified by the SABS. Cleaning of mass of dried/partially dried abalone that was certified by the SABS.

3. Processing of abalone

This pricing will be calculated on the mass of abalone after cleaning and will only be applicable to abalone that was certified as fit for human by the SABS

R/Kg Processing including drying, packaging and labelling of cleaned abalone for export as a dried abalone product. Re-drying of dried and partially dried abalone including packaging for export as a dried abalone product. Cooking of raw and drying of cooked and partially cooked abalone

17 including packaging for export as a dried abalone product.

B. Are you the owner of a registered and SABS approved fish processing establishment for abalone?

YES NO

If yes, attach a copy of your SABS certificate.

If No, name the facility that you will use and provide proof of the agreement/ undertaking and a copy of the SABS certificate.

------

C. Does the processing facility have the capacity to process the abalone into a dried product that will meet SABS certification for export? YES NO

D. Please indicate your timeframes for the processing of the abalone into a:

Kg/Day Dried abalone product ready for export

ANNEXURE 1

18 SERVICE LEVEL AGREEMENT

between

THE MARINE LIVING RESOURCES FUND a Schedule 3A public entity in terms of the Public Finance Management Act under the auspices of THE DEPARTMENT OF AGICULATURE, FORESTRY AND FISHERIES (Hereinafter referred to as “the Department”) Represented by Mr. Richard Seleke in his capacity as the Acting Deputy Director-General of Fisheries Branch of the Department and he duly authorised thereto

______. REGISTRATION NO: (Hereinafter referred to as “the Service Provider”) Represented by ______In his capacity as ______and he/ she duly authorized thereto

IT IS HEREBY RECORDED

19 1. DEFINITIONS

1.1 In this agreement:-

1.1.1 “the Department” means the Department of Agriculture, Forestry and Fisheries, Branch: Fisheries and includes the Marine Living Resources Fund listed as a Schedule 3A Public Entity in Government Gazette 22047 of 16 February 2001 under the Public Finance Management Act, 1999 (Act No. 1 of 1999) and established in terms of section 10 of the Marine Living Resources Act, 1998 (Act No. 18 of 1998); and falls under the control of the Department of Environmental Affairs and Tourism; 1.1.2 “the Service Provider” means ……………., Registration Number ………………; 1.1.3 “the parties” means the Department and …………….; 1.1.4 “this agreement” means this service level agreement together with all the annexure thereto; 1.1.5 “services” means the services to be rendered by the Service Provider to the Department as set out in this agreement, together with all the annexures thereto; 1.1.6 “bid documents” means all the bid specification documents sent out by the Department and all documents submitted by the Service Provider as their bid proposal for MLRF Bid Number …………. ; 1.1.7 “signature date” means the date on which the last signing party signs this agreement; 1.1.8 “termination date” means the date following the last day of this agreement, unless the agreement is terminated earlier in terms of Clause 7 below, or is extended for further period based on mutual agreement between the parties;

20 1.1.9 “Financial year” means the Department’s financial year 1 April to 31 March.

1.2 Expressions defined in this agreement shall bear the same meanings in the annexures to this agreement, unless expressly stated otherwise in this agreement.

1.3 In this Agreement:

1.3.1 the singular shall include the plural and vice versa; 1.3.2 the masculine gender shall include the feminine and neuter genders and vice versa; 1.3.3 unless otherwise indicated, any meaning ascribed to a word, phrase or expression in this Agreement, shall bear the same meaning wherever it appears thereafter; 1.3.4 headings to the clauses are only for convenience of reference and shall not be utilised in the interpretation of this Agreement.

1.4 This Agreement shall bind the Parties and their respective successors-in- title.

1.5 In the event that any of the terms of this agreement are found to be invalid, unlawful or unenforceable, such term will be severable from the remaining terms, which will continue to be valid and enforceable.

1.6 Where the contents of the bid documents conflict with the provisions of this agreement, the provisions of this agreement shall take preference.

2. PAYMENT

21 2.1 It is recorded that the Department shall make all payments due in terms of this agreement to the Service Provider.

2.2 The Service Provider shall render services to the Department in accordance with the cost structure as set out in Annexure ‘…..” to this agreement, which includes VAT and all disbursements and is in South African Rand.

2.3 The Service Provider shall provide the Department with a detailed tax invoice for (the services provided). Once the Department has approved such invoice and the progress report submitted in terms of Clause 4.10, it will make direct payments to the Service Provider within 30 calendar days of approval of such invoice and report.

2.4 The Department may implement a penalty of 5% (five percent) of the agreed payment per phase for failure to deliver:-

2.4.1 within the timeframes in terms of this agreement or as agreed to in writing, and/or 2.4.2 to the satisfaction of the Department as indicated in this agreement.

2.5 The Service Provider will keep full and proper financial records of all payments made by the Department, and will provide all supporting documentation or information related to budgeted expenditure at the request of the Department.

2.6 Payment will be made by means of electronic transfer into the bank account nominated by the Service Provider.

3. COMMENCEMENT AND DURATION

22 3.1 This agreement shall endure for a period of two years. It may be extended for a further period upon mutual agreement between both parties.

3.2 This agreement may be extended with the prior written consent of both parties and on such terms as the parties may then agree.

3.3 The agreement will commence from ……………..

4. OBLIGATIONS OF THE SERVICE PROVIDER

4.1 The Service Provider shall provide the services as set out in this agreement and the annexures

4.2 During the performance of duties as per this Agreement, the Service Provider shall provide its own resources.

4.3 The Service Provider shall faithfully and diligently devote time to the service of the Department in terms of this Agreement.

4.4 The Service Provider shall undertake such assignments as the Department requires to be performed in terms of this Agreement.

4.5 The Service Provider acknowledges and agrees that the Department is bound by the rules and regulations governing the Department and that any obligations arising from this agreement can only be carried out in light thereof, and agrees to assist the Department to comply therewith.

4.6 The Service Provider shall ensure that all work shall be of a high standard, skill and executed to the satisfaction of the Department.

23 4.7 The Service Provider shall keep proper financial records in accordance with the Generally Recognised Accounting Practice (GRAP) of all expenses relating to the service.

4.8 The service provider shall upon completion or termination of this Agreement refund to the Department all funds paid by the Department and not spent by (Name of Party).

4.9 The Service Provider shall pay any Value Added Tax payable in respect of services rendered in terms of this Agreement - the Department bears no responsibility therefore.

4.10 The Service Provider shall make available for inspection by the Department any information, records, documents relevant to the performance of the services.

4.11 The Service Provider shall submit progress reports and a final report to the Department and the reports will be in a format approved by the Department.

4.12 The Service Provider shall prepare a detailed project plan for the services conducted in terms of this agreement in consultation with the Department.

4.13 If the ownership, shareholding, HDI status and any of the key staff members (management/professional/skilled) of the Service Provider or equipment, facilities or infrastructure necessary for the effective provision of the services changes during the period of this agreement, the Service Provider shall notify the Department immediately, and the Department reserves the right to cancel this agreement.

24 5. OBLIGATIONS OF THE DEPARTMENT

5.1 The Department shall provide the Service Provider with such information, documentation and other details requested in writing by the service provider to enable the Service Provider to fulfill its obligations in terms of this agreement. If such documentation is not provided by the Department, the Service Provider shall indicate in writing which documentation is outstanding. The Department shall only be obliged to provide that information or documentation which is relevant to this agreement and which is in the possession of the Department.

5.2. The Department shall, within 14 (fourteen) calendar days of receipt of reports submitted in terms of Clause 4.12 above, deliver to the Service Provider a written statement indicating whether the Department disagrees with the contents of these reports. Should the Department disagree with any of the statements contained in the Service Provider’s reports, the Department shall state the reasons for its disagreement and shall set out in detail any discrepancies and/or instances of non-compliance on aspects which, in its opinion, should have been included in the reports. The Service Provider shall make such necessary amendments that will address the concerns raised by the Department within 7 calendar days.

6. MANAGEMENT OF THE AGREEMENT

The parties undertake to appoint the following individuals as contact persons to ensure the proper management of this agreement:

The Department: …………or his delegate or successor in title The Service Provider: ………...or his delegate or successor in title.

7. CANCELLATIONS AND BREACH

25 7.1 The Department may, in addition to any other remedies it may be entitled to in law and in terms of this Agreement, appoint another Service Provider to render the required services at the expense of the Service Provider should the Service Provider default in any of the following respects:

7.1.1 Without reasonable cause, wholly suspend the services before completion of the contract period;

7.1.2 Fail and/or refuse and/or neglect to provide the service with the required diligence;

7.1.3 Fail and/or refuse and/or neglect, after written notification from the Department to render the services in accordance with this Agreement.

7.2 If the Department is dissatisfied with the quality of the performance of any of the services referred to in Clause 4 and the annexures and/or the Service Provider has failed to comply with any timeframes for delivery, the Department will be entitled to withhold payment of any invoice received. In such event the Department must notify the Service Provider in writing, within 14 (fourteen) calendar days of the task giving rise to the complaint and the Service Provider must remedy the identified cause of complaint within 7 (seven) calendar days of such notification, or such longer period as the Department may authorize in writing, at no additional cost to the Department, failing which the Department will be entitled to cancel this agreement.

7.3 This agreement may be terminated by the Department as a result of a breach of the terms of this agreement by the Service Provider or a lack of available funds, on 30 calendar day’s written notice. Upon such cancellation, the Service Provider undertakes to deliver all work done. The

26 Department undertakes to remunerate the Service Provider for any work completed up until the date of termination, provided the Service Provider renders an invoice as stipulated in Clause 2 above and the work completed is approved by the Department and the Service Provider shall have no further claim for payment or damages.

7.4 In the event of either party committing a breach of any of the terms and/or conditions of this agreement and failing to remedy such breach within the period of 30 calendar days of having been given written notice by the aggrieved party requiring such breach to be remedied, the aggrieved party may, without prejudice to any rights it may have to claim for damages suffered as a result of the breach, either cancel this agreement or enforce performance of the terms of the agreement.

7.5 This Agreement may be terminated immediately by the Department, upon the happening of one of the following events by giving written notice of the cancellation to the Service Provider if the Service Provider:

7.5.1 Is liquidated or placed under judicial management or enters into a compromise with its creditors; 7.5.2 Willfully damages the Department’s property, business, reputation or goodwill; 7.5.3 Discloses to any other party or unauthorized person confidential information of the Department; 7.5.4 Provided incorrect or false information in its bid proposal and which is subsequently discovered by the Department; 7.5.5 Should the Service Provider, inter alia, make itself guilty of misconduct in terms of the code of conduct of its profession or if the Service Provider acts dishonestly or contrary to the integrity required from its profession.

27 8. GOVERNING LAW AND ARBITRATION

8.1 Should any disputes and/or difference of opinion arise between the parties regarding the interpretation of any or all the provisions of this Agreement during the term of or on the termination thereof that cannot be amicably settled, the aggrieved party shall forthwith give the other party 14 (fourteen) calendar days written notice to this effect.

8.2 After notice in terms of clause 8.1 disputes and/or differences shall be resolved in the following manner:

8.2.1 Both parties shall, by agreement, appoint an impartial mediator. Should the parties not be able to agree on a mediator, then it is agreed that the Law Society of the Western Cape shall appoint a mediator. 8.2.2 Should the matter not be resolved through mediation, both parties shall have the option subject to Clause 8.4 to have the matter resolved through arbitration as set out below, or the court having jurisdiction in this matter in which case the defaulting party may be liable for all legal costs incurred on a scale as between attorney and client.

8.3 This agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.

8.4 Any dispute arising out of this Agreement or the interpretation thereof, both while in force and after its termination, may be, with the written consent of the Department submitted to and determined by an appropriate arbitration forum agreed to by both parties.

8.5 Such arbitration shall be held at an agreed venue, and in a summary manner with a view to it being completed as soon as possible. 28 8.6 There shall be one arbitrator appointed by agreement between the parties.

8.7 The arbitration proceedings shall be held in the English language.

8.8 The decision of the arbitrator shall be final and binding on the parties, and may at the request of either party be made an Order of Court of competent jurisdiction, and each of the parties hereby agrees to submit itself to the jurisdiction of such Court.

9. GENERAL

Indulgence

9.1 No amendment of this agreement or of any provisions or terms hereof, and no extension of time or waiver or relaxation or suspension of any of the provisions or terms of this agreement shall be of any force or effect unless reduced to writing and signed by both parties .

9.2 No waiver on the part of either party of any rights arising from a breach of any provision of this agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.

Cession

9.3 Neither party shall be entitled without the prior written consent given by the duly authorised official of the other party to cede, delegate or otherwise transfer any of its rights and/or obligations in terms of this agreement.

29 Notices

9.4 Any notice to be given in terms of this agreement shall be given in writing and shall be deemed validly served within ten calendar days after the day on which it shall have been posted by prepaid registered post to the postal address of the other party that is mentioned in this contract:

The Department The Deputy Director-General: Fisheries Department of Agriculture, Forestry and Fisheries Private Bag X2 ROGGEBAAI 8012 Att : …………………………… Tel : ……………………….. Fax : ………………………….

Service Provider (Postal address)

Att : …………………………. Tel : ………………………… Fax : ………………………….

9.5 All notices in terms of this agreement shall in addition to clause 9.4, be faxed to the facsimile numbers of the parties as detailed above. Domicillium

9.6 The following addresses are respectively chosen by the parties as their domicilium citandi et executandi for all purposes arising out of this contract and for the service of legal documents and delivery of notices:

30 The Department Department of Agriculture, Forestry and Fisheries Chief Directorate: Office of the Chief Financial Officer 6th Floor, Foretrust Building Martin Hammerschlag Way Cape Town 8000,

Service Provider (Physical address)

9.7 Any hand-delivered notice shall be deemed validly delivered when that party acknowledges receipt of the notice in writing.

9.8 Each party shall have the right at any time to substitute its said domicilium/postal address with another address by giving written notice of the appointment of the new address to the other party in accordance with the terms of this contract, which change of its said domicilium/postal address shall only become applicable 10 calendar days after the date of notice.

Vis major

9.9 The parties hereby agree that neither party shall be liable to the other for any loss, injury or any other casualty suffered or incurred by the other party or any failure to comply with its obligation in terms of this contract due to strike, irregular industrial action short of strike, riots, storms, explosions, vis major, war (whether declared or undeclared) or any other similar cause beyond the reasonable control of either party and any failure or delay by either party in their performance of any of the obligations under

31 this agreement due to any of the foregoing causes, shall not be considered as a breach of this agreement.

10. CONFIDENTIALITY

10.1 Any Party shall treat information furnished by another Party or another person for purposes of the execution of this Agreement, as confidential.

10.2 Subject to this clause, the Party (ies) so furnished with information shall not disclose such information to another person without the prior written consent of the other Party and shall take reasonable steps to ensure that such information is not disclosed to another person.

10.3 The parties agree that this Agreement is not intended to restrict use or disclosure of any portion of such information which:

(a) is made known to the public through no default by the receiving Party of its obligations under this Agreement; (b) is rightfully received by the Receiving Party from a third party having no obligation of confidentiality to the Disclosing Party; (c) is independently developed by the Receiving Party by persons who did not have access to Confidential Information of the Disclosing Party; or (d) is disclosed by the Receiving Party after receipt of written permission from the disclosing Party

10.4 The provisions of this clause will survive the termination of this Agreement.

11. INTELLECTUAL PROPERTY

32 11.1 Insofar as may be necessary, the Service Provider assigns to the Department the copyright in all present and future works eligible for copyright including, without limitation, software programmes of which it may be the author, which works were or are created, compiled, devised or brought into being during the subsistence and fulfilment of this Agreement. No consideration shall be payable by the Department to the Service Provider in respect of this assignment.

11.2 All research, data, information, documents gathered by the Service Provider from individual interviews and or group discussions, field research, supplementary sources and expert reports, written instructions, drawings, notes, memoranda, records, manuals, financial statements, budgets, indices, research papers, letters or other similar documents (the nature of which is not limited by the specific reference to the a foregoing items) which are created, compiled, devised or brought into being or come into the possession of the Service Provider during the subsistence of this Agreement, shall be the property of the Department, and upon the termination of this Agreement, or earlier if required by the Department, such documents and all copies shall be handed over to the Department. 11.3 In addition, the Department shall retain exclusive control and rights to all the Service Provider’s work undertaken in terms of this Agreement, and more specifically, the right to edit and publish such work.

11.4 All policies, documents, programmes or reports of the Department and any work completed in terms of this agreement shall remain the intellectual property of the Department; all documents in this respect shall be submitted to the Department. No publication of any material or communication in the media or other for regarding the content of these policies, documents, programmes or reports and any work completed in terms of this agreement is allowed except with the express written consent of the Department.

33 12. INDEMNITY

12.1 The Service Provider indemnifies the Department and holds the Department harmless from and against any or all liabilities arising from any acts or omissions of its employees and/or agents and/or appointed agents arising out of this agreement.

12.2 The Service Provider acts as an independent contractor and not as an agent or employee of the Department and has no authority to bind the Department.

12.3 The Department is indemnified against any claims or court action, including legal costs as well as attorney and client costs, which any person may institute resulting from a failure to comply with paragraph 12.1 and 12.2 above.

12.4 The Service Provider undertakes to obtain the necessary consent in the event of it making use of the works and rights or any other intellectual property of third parties. The Service Provider hereby indemnifies the Department against any action or application, including all costs, which might arise out of such breach.

12.5 The Service Provider indemnifies the Department against all claims for costs and liabilities arising from the presence of the Service Provider and/or its representatives on the Department’s property. This indemnity shall apply to any claims by the Service Provider and/or its employees, agents and representatives for their injury or death while carrying out their duties/services in terms of this agreement and shall include loss or damage to the Service Provider’s property and the personal effects of the Service Provider’s employees, representatives and/or agents.

34 Signed at ______on this day of in the presence of the undersigned witnesses.

AS WITNESSES:

1. ______

2. ______

______Mr. Richard Seleke ACTING DEPUTY DIRECTOR-GENERAL OF FISHERIES For and on behalf of the Department, who is duly authorized thereto.

Signed at ______on this day of in the presence of the undersigned witnesses.

AS WITNESSES:

1. ______

2. ______

35 ______For and on behalf of------, who is duly authorized thereto.