Hong Kong Ordinances

BUILDING MANAGEMENT ORDINANCE - SECT 20A

Supplies, goods and services

(Past version on 30/06/1997).

(1) The procurement of all supplies, goods or services required by a
corporation in the exercise of its powers and the performance of its duties
under the deed of mutual covenant (if any) or this Ordinance shall comply with
such standards and guidelines as may be specified in a Code of  Practice
relating to such procurement.

(2) Subject to subsection (2A), any supplies, goods or services referred to in
subsection (1) the value of which exceeds or is likely to exceed— (Amended 5
of 2007 s. 16)

   (a)  the sum of $200000 or such other sum in substitution therefor as the
        Authority may specify by notice in the Gazette; or

   (b)  a sum which is equivalent to 20% of the annual budget of the
        corporation or such other percentage in substitution therefor as the
        Authority may specify by notice in the Gazette, whichever is the
        lesser, shall be procured by invitation to tender. (Amended 5 of 2007
        s. 16)

(2A) Subsection (2) does not apply to any supplies, goods or services which
but for this subsection would be required to be procured by a corporation by
invitation to tender (referred to in this subsection as “relevant supplies,
goods or services”) if—

   (a)  the relevant supplies, goods or services are of the same type as any
        supplies, goods or services which are for the time being supplied to
        the corporation by a supplier; and

   (b)  the corporation decides by a resolution of the owners passed at a
        general meeting of the corporation that the relevant supplies, goods
        or services shall be procured from that supplier on such terms and
        conditions as specified in the resolution, instead of by invitation to
        tender. (Added 5 of 2007 s. 16)

(2B) Where any supplies, goods or services are required under subsection
(2)(b) to be procured by invitation to tender, whether a tender submitted for
the purpose is accepted or not shall be decided by a resolution of the owners
passed at a general meeting of the corporation. (Added 5 of 2007 s. 16)

(3) (Repealed 5 of 2007 s. 16)

(4) All tender documents, copies of contracts, accounts and invoices and any
other documents in the possession of a corporation and relating to the
procurement of supplies, goods and services shall be kept by the corporation
for such period, being not less than 6 years, as the corporation may
determine.

(5) A contract for the procurement of any supplies, goods or services shall
not be void by reason only that it does not comply with subsection (1). (Added
5 of 2007 s. 16)

(6) Where any supplies, goods or services are required under subsection

(2) to be procured by invitation to tender, a contract for the procurement of
the supplies, goods or services which does not comply with subsection

(2) or (2B)—

   (a)  subject to any resolution passed by the corporation under paragraph
        (b) or any order made by the court under subsection (7), shall not be
        void by reason only that it does not comply with subsection (2) or

(2B);

   (b)  subject to any order made by the court under subsection (7), may be
        avoided by the corporation by a resolution of the owners passed at a
        general meeting of the corporation but only for the reason that it
        does not comply with subsection (2) or (2B). (Added 5 of 2007 s. 16)

(7) In any legal proceedings in relation to a contract for the procurement of
any supplies, goods or services to which subsection (2) or

(2B) applies, the court may make such orders (including whether the contract
is void or voidable) and give such directions in respect of the rights and
obligations of the contractual parties as the court thinks fit having regard
to all the circumstances of the case, including (but not limited to) the
following factors—

   (a)  whether the supplies, goods or services have been procured by
        invitation to tender;

   (b)  whether a general meeting of the corporation has been convened to
        consider the procurement of the supplies, goods or services;

   (c)  whether the Code of Practice referred to in subsection (1) has been
        complied with;

   (d)  whether the contract has been split, for the sole purpose of avoiding
        the compliance of the requirements in subsection (2) or (2B), from a
        contract which should have been made for the procurement of supplies,
        goods or services of greater value;

   (e)  whether the supplies, goods or services were urgently required;

   (f)  the progress of any activities or works in relation to the supplies,
        goods or services;

   (g)  whether the owners have benefited from the contract;

   (h)  whether the owners have incurred any financial loss due to the
        contract and the extent thereof;

   (i)  whether the supplier of the supplies, goods or services under the
        contract has acted in good faith;

   (j)  whether the supplier of the supplies, goods or services under the
        contract has benefited from the contract; and

   (k)  whether the supplier of the supplies, goods or services under the
        contract has incurred any financial loss due to the contract and the
        extent thereof. (Added 5 of 2007 s. 16)

(8) For the purposes of subsection (7), where the court makes an order that
the contract is voidable at the instance of the corporation, it shall also
make an order that a general meeting of the corporation be convened and held
in such manner as the court thinks fit, so as to decide whether the contract
is to be avoided. (Added 5 of 2007 s. 16)

(9) For the avoidance of doubt, subject to section 29A, any person who enters
into a contract for the procurement of any supplies, goods or services
otherwise than in compliance with subsection (2) or, if applicable, subsection
(2B) may be personally liable for any claims arising from the contract. (Added
5 of 2007 s. 16) (Added 27 of 1993 s. 20)