Contract Administration

A Procuring Entity (PE) sought guidance as follows:

I. The PE completed a procurement exercise for the provision of Cloud Services Limited Cloud Service/Cloud Services Limited Cloud Infrastructure, and the GoJ standard contract, which was included in the solicitation document, was sent to the selected supplier, IT Supplier Limited, for review and signature.
II. The supplier responded with a list of proposed changes to the contract and referred to Cloud Services Limited’s Cloud Infrastructure Agreement, which the supplier indicates would take precedence over the standard contract issued by the PE, would, hence, govern the supplier’s services and PE’s use of and access to the infrastructure. The supplier also proposed reducing the contract duration from three years to one year. Cloud Services Limited’s representative in Jamaica and the requested service is critical to the PE’s operation.
III. The PE met with the supplier and advised them of the following:-
a. The Procurement Act does not permit post-award changes that undermine the integrity of the procurement process; and
b. Including the Cloud Services Limited Agreement, and giving it precedence over the GoJ contract, would breach the Procurement Act because the terms of the Cloud Services Agreement are not minor deviations and would not have been included in the solicitation documents. The supplier maintains that the Cloud Services Limited agreement be considered.
IV. The PE was advised that Cloud Services Limited and other major software developers typically require users, including public sector entities, to accept their standard global agreements, which override any conflicting terms found in local contracts.
V. In considering of this development, the PE request advice regarding:
a. Whether the PE can proceed with the signing of both the GoJ contract and the Cloud Services Limited Cloud Infrastructure Agreement
b. If there are similar cases within Government and, if so, how were they managed.”