Official Receiver’s Office

The Government of the Hong Kong Special Administrative Region

INVITATION TO TENDER FOR TAKING UP OF APPOINTMENT

AS PROVISIONAL LIQUIDATORS UNDER

SECTION 194(1A) OF THE COMPANIES (WINDING UP AND

MISCELLANEOUS PROVISIONS) ORDINANCE (CAP. 32)

CONTENT

Tender Form

1

Interpretation

3

Terms of Tender

7

Annex I - Essential Requirements

15

Annex II - Quotation Sheet 18

Annex III - Declaration on Details of the Tenderer

(Form A and B)

19

Annex IV- Undertaking

25

Annex V - List of Documents to be submitted

27

Conditions of Contract

28

Work Specifications

41

3

INTERPRETATION

1. In these Tender Documents -

“Allocation Period” means the period commencing from the date

on which the Contract is constituted in

accordance with Clause 11(a) of the Terms of

Tender and ending on 31 March 2018 or the

date on which the Contract extension ends

referred to in Condition 15 of the Conditions

of Contract, whichever is later (both dates

inclusive).

“Annexes” means Annexes I to V to these Terms of

Tender.

“Appointment Taker” means the proprietor, partner, director or

employee of the Firm who will take up the

appointment as joint and several provisional

liquidator and liquidator (unless the Court

orders otherwise) in a Qualified Case in

accordance with this Invitation to Tender.

“Contract” means the contract constituted pursuant to

Clause 11(a) of the Terms of Tender between

the Firm and the Official Receiver and

includes the Terms of Tender, the Conditions

of Contract, the Work Specifications and the

Tenderer’s proposal as provided in

accordance with the Annexes to the Terms of

Tender subject to such variation as may be

agreed by the Official Receiver in awarding

the contract.

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“Firm” means the Tenderer whose tender is accepted

and to whom a Contract is awarded pursuant

to this Invitation to Tender.

“full-time employee” means an employee who works 44 or more

working hours in a week.

“Government” means the Government of the Hong Kong

SAR.

“Official Receiver” means the Official Receiver appointed under

the Bankruptcy Ordinance (Cap. 6).

“Panel A Scheme” means the administrative scheme operated by

the Official Receiver for the appointment of

qualified persons as liquidators or special

managers in compulsory winding-up cases

estimated to have assets exceeding $200,000

in value.

“person” means any individual, corporation,

partnership, firm and unincorporated body.

“Qualified Case” means the liquidation of a company under

compulsory winding up by the court and

where section 194(1A) of the Companies

(Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32) applies.

“Required Subsidy”

means the amount of Subsidy proposed by a

Tenderer in its Quotation Sheet at Annex II as

the maximum amount of Subsidy it will

demand from the Official Receiver for the

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“Services”

performance and discharge of the Services

when Appointment Takers of the Tenderer are

appointed as joint and several provisional

liquidators in a Qualified Case by the Official

Receiver, and as liquidators thereafter under

section 227F of the Companies (Winding Up

and Miscellaneous Provisions) Ordinance

(Cap. 32).

means the provision by the Firm of

Appointment Takers for appointment as joint

and several provisional liquidators under

section 194(1A) of the Companies (Winding

Up and Miscellaneous Provisions) Ordinance

(Cap. 32) and as liquidator (where

appropriate) in a Qualified Case as well as the

tasks, duties and obligations set out in the

Work Specifications.

“Subsidy” means the subsidy payable by the Official

Receiver to the Firm in respect of a Qualified

Case to meet the Firm’s remuneration and

fees for the performance and discharge by

them of the Services when the net realised

assets of the wound up company is

insufficient for that purpose.

“Tender Closing Date” means the date by which a tender must be

submitted and as more particularly referred to

in Clause 9 of the Terms of Tender.

“Tender Documents”

has the meaning assigned to it in the Tender

Form.

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“Tenderer” means the entity who submits an offer

pursuant to this Invitation to Tender and

whose name is stated to be the Tenderer in the

Offer to be Bound form.

“unconnected companies” means-

(i) companies that are not related

companies meaning they are not the

subsidiary or holding company of

each other or a subsidiary (direct or

indirect) of the common holding

company; or

(ii) companies that do not have any

common director immediately before

the winding up.

2. Except where the context requires otherwise, the singular shall include the plural and vice

versa; a reference to one gender shall include all genders.

3. Reference to any statute, enactment, order, regulation or other similar instrument shall be

construed as a reference to the statute, enactment, order, regulation or instrument as

amended by any subsequent statute, enactment, order, regulation or instrument. Reference

to a statute or enactment shall include all subsidiary legislation made thereunder.

4. These Tender Documents are prepared in the Chinese language and the English language.

The Chinese version is a translation of the English version for Tenderers’ reference only.

In the event of any inconsistency between the English version and the Chinese translation

of these Tender Documents, the English version shall prevail.

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TERMS OF TENDER

1. Invitation to Tender

Tenders are invited for the provision of the Services in Qualified Cases subject to and in

accordance with the terms and conditions in these Tender Documents.

2. Tender

(a) This Invitation to Tender relates to the appointment of the Firm’s Appointment

Takers as the joint and several provisional liquidators in place of the Official

Receiver in accordance with section 194(1A) of the Companies (Winding Up and

Miscellaneous Provisions) Ordinance (Cap. 32) in Qualified Cases allocated to the

Firm by the Official Receiver during the Allocation Period.

(b) Tenders shall be prepared and submitted in accordance with these Terms of Tender.

Tenderers are not permitted to alter any them including the Annexes. No

counter-proposals in any respect of these Tender Documents will be considered. A

tender with a counter-proposal in any respect will not be considered any further.

(c) Should any amendment to the offer (including any figures contained therein) by a

Tenderer is required, such amendments should be initialled by the Tenderer in ink,

whether such amendments are made by correction pen or striking out by pen or

otherwise.

(d) A Tender may not be considered if complete information is not given with the

Tender or if any particulars and data asked for in the Annexes are not furnished in

full.

(e) Each Tenderer shall submit only one tender.

3. Tenders to Remain Open

Tenders shall remain open for 90 days after the Tender Closing Date.

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4. Required Subsidy

(a) A Tenderer shall propose in the Quotation Sheet at Annex II the Required Subsidy

as a fixed fee in Hong Kong Dollars and with a breakdown of the hourly rate as

required therein for performing the Services for each Qualified Case allocated to

the Firm.

(b) Tenderers must ensure that the Required Subsidy is correct and final before

submitting their Tenders. Under no circumstances will the Official Receiver accept

any request for correction or adjustment whether on grounds that a mistake has

been made in assessing the Required Subsidy or other grounds.

(c) Tenderers are advised to refer to Condition 8(a) of the Conditions of Contract on

the fees and remuneration of the Firm for provision of the Services in any Qualified

Case.

5. Tender Preparation

(a) A Tenderer shall submit the following documents in its tender:

(i) duly signed Offer to be Bound;

(ii) duly completed Quotation Sheet in the form at Annex II;

(iii) duly completed Forms A and B in Annex III; each proposed Appointment

Taker shall execute a separate Form B; and

(iv) all supporting documents including without limitation to those set out in

Annex V.

(b) A tender without any of following documents or information by the Tender Closing

Date will be considered as invalid and will not be considered further.

(i) a duly signed Offer to be Bound;

(ii) the Quotation Sheet with the Required Subsidy per Qualified Case;

(iii) the information required at I, IV, VII, VIII, IX and X of Form A of

Annex III; and

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(iv) the information required at I and III in Form B of Annex III and the name of

Appointment Taker, and the form must be executed by the relevant

Appointment Taker.

(c) The Official Receiver may, but is not obliged to, seek clarification or submission of

any missing or incomplete information or document (not being those provided in

sub-clause (b) above). If the Tenderer concerned is unable to satisfy such request,

its tender may be rendered invalid at the discretion of the Official Receiver. .

6. Essential Requirements

Tenderers must satisfy all of the essential requirements stipulated in Annex I. A Tenderer

failing to meet any of the essential requirements will be disqualified and its tender will not

be considered further.

7. Personal and other Data Provided

(a) Personal data provided in the Tender will be used for tender evaluation and contract

award purposes. If insufficient or inaccurate information is provided, the Tender

may not be considered.

(b) Personal data provided in the Tender may be disclosed to the parties responsible for

tender evaluation in other government departments and non-government

organisations.

(c) Tenderers have the right of access and correction with respect to personal data as

provided for in sections 18 and 22 and Principle 6 of Schedule 1 of the Personal

Data (Privacy) Ordinance (Cap. 486). The right of access includes the right to

obtain a copy of the personal data provided by the Tenderer in the Tender.

(d) Enquiries concerning the personal data collected by means of the Tender, including

the making of requests for access and corrections, should be addressed to Personal

Data Privacy Officer of the Official Receiver’s Office, 10th

Floor, High Block,

Queensway Government Offices, 66 Queensway, Hong Kong.

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8. Consent to Disclosure

The Official Receiver shall have the right to disclose whenever it considers appropriate or

upon request by any third party (written or otherwise), without any further reference to the

Tenderer, the name and address of the Tenderer, the Required Subsidy per case it stated in

its Tender and any other information provided in the Tender.

9. Submission of Tender

(a) A Tenderer is expected to complete and sign the Tender Documents in ink or

typescript and submitted in triplicate (that is, one original and two copies). A

tender should be enclosed in a sealed plain envelope marked “Tender for Taking

up of Appointment as Provisional Liquidators under section 194(1A) of the

Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32)” and

addressed to the Chairman, Government Logistics Department Tender Opening

Committee (including the tender and all accompanying documents).

(b) Tenders must be deposited in the Government Logistics Department Tender Box

situated at Ground Floor, North Point Government Offices, 333 Java Road, North

Point, Hong Kong, no later than 12:00 noon on 6 January 2016 (Hong Kong

Time). Late tenders will not be considered.

(c) Every Tender is a formal offer by the Tenderer to perform the Services in Qualified

Cases allocated to the selected Tenderer on the terms and conditions set out in the

Contract.

(d) Late tenders or submission by other means or otherwise will not be considered.

(e) In case a black rainstorm warning or typhoon signal No. 8 or above is valid for any

duration between 9:00 a.m. and 12:00 noon on the Tender Closing Date, the tender

closing time will be extended to 12:00 noon on the next weekday (i.e. except

Saturday or Sunday) other than public holiday as defined in section 3 of the

Interpretation and General Clauses Ordinance (Cap.1).

10. Assessment of Tender

(a) All Tenders will be checked for (i) the completeness of the documents and

information in accordance with clause 5(a) and (ii) the essential requirements

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stipulated in Annex I. Tenders that fail to submit any of the information or

documents stipulated in clause 5(b) or the essential requirements in Annex I will

not be further processed for evaluation.

(b) Tenders that have met the requirements in clause 5(b) and Annex I will be assessed

on the basis of the Required Subsidy per case and any other matters which the

Official Receiver considers relevant and in such manner as the Official Receiver

may in his absolute discretion think fit.

11. Acceptance

(a) The selected Tenderer will receive a letter of conditional acceptance issued by the

Official Receiver. A contract shall be constituted between the selected Tenderer

and the Official Receiver and shall commence upon the selected Tenderer having

duly complied with the conditions precedent stipulated in paras. (i) to (iii) below:

(i) the selected Tenderer shall within 7 days from the date of the letter of

conditional acceptance of offer provide the Official Receiver with

documentary proof that the Firm is covered by professional indemnity

insurance to the satisfaction of the Official Receiver; such documentary proof

includes but is not limited to a certified copy of the current professional

indemnity insurance policy; and

(ii) the selected Tenderer shall within 7 days from the date of the letter of

conditional acceptance of offer provide an Undertaking to be signed by each of

the Appointment Takers named in item VIII of Form A at Annex III in the form

as at Annex IV in favour of the Official Receiver and the selected Tenderer.

Each proposed Appointment Taker shall sign a separate Undertaking; and

(iii) that any contracts made with the selected Tenderer for the provision of any

insolvency services or work has not been (i) terminated by the Official

Receiver; or (ii) suspended by the Official Receiver for any period of 2 months

or more the allocation of cases or work, by reason of:

(aa) any breach by the selected Tenderer of any of the terms and conditions of

such contract; and/or

(bb) the quality of any of the work or services provided under such contract

being considered by the Official Receiver to be unsatisfactory,

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for the period between the Tender Closing Date and the date the Official

Receiver issues the letter of conditional acceptance of offer.

(b) The letter of conditional acceptance of offer will lapse and be of no effect should

the Tenderer fail to fulfill any of the conditions precedent in Clause 11(a) and the

Official Receiver shall be at liberty to award the Contract to any other Tenderer, to

conduct a fresh tender exercise or to take such appropriate action as the Official

Receiver deems fit.

(c) Tenderers who do not receive any notification within the validity period of their

offer shall assume that their offers have not been accepted.

(d) The Official Receiver is not bound to accept a tender with the lowest Required

Subsidy or any tender.

(e) The Official Receiver reserves the right to negotiate with any or all Tenderer about

the terms of the tender.

12. Allocation of Qualified Cases

(a) The Official Receiver estimated that 10 Firms may be appointed to perform the

Services. The Official Receiver may adjust the actual number of Firms to be

appointed as the Official Receiver considers appropriate and for this purpose may

take into consideration other factors such as offers from Firms stating the same

amount of Required Subsidy. The Firms will be allocated Qualified Cases on a

rotation basis or on such other basis as the Official Receiver considers appropriate.

(b) For information, the number of cases allocated under the previous tender exercises

in the past years is given below.

Financial Year Number of Cases

2003-2004 1116

2004-2005 1009

2005-2006 727

2006-2007 477

2007-2008 421

2008-2009 425

2009-2010 528

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2010-2011 364

2011-2012 276

2012-2013 297

2013-2014 227

2014-2015 243

2015-2016

(from April 2015 to November 2015)

170

(c) The estimated number of cases to be allocated for each of the financial years

2016-2017 and 2017-2018 is in the region of 260. The estimates are provided by

the Official Receiver in good faith for reference of Tenderers only; the Official

Receiver does not intend to be bound by any of these estimates and is not obliged to

make the allocation of cases on the basis of such estimates.

13. Documents of Unsuccessful Tenderers

Documents of unsuccessful Tenderers including personal data may be destroyed three

months after the date the Contract has been awarded.

14. Complaints About Tendering Process or Contract Awards

The tendering process is subject to internal monitoring to ensure that contracts are awarded

properly and fairly. Any Tenderer who feels that his offer has not been fairly evaluated

may write to the Official Receiver’s Office who will examine the complaint and refer it to

the approving authority/relevant tender boards for consideration if it relates to the

tendering system or procedures followed. The Tenderer shall lodge the complaint before

disposal of documents of unsuccessful Tenderers.

15. Cancellation of Tender

Without prejudice to the Official Receiver’s right to cancel the tender, where there are

changes of requirement after Tender Closing Date for operational or whatever reasons, the

Official Receiver is not bound to accept any conforming tender and reserves the right to

cancel the tender.

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16. Anti-collusion

(a) By submitting a tender, the Tenderer represents and warrants that in relation to the

Tender for the provision of the Services:

(i) it has not communicated and will not communicate to any person other than

the Official Receiver the Required Subsidy;

(ii) it has not fixed and will not fix the amount of the Required Subsidy by

arrangement with any person;

(iii) it has not made and will not make any arrangement with any person as to

whether it or that other person will or will not submit a tender; and

(iv) it has not otherwise colluded and will not otherwise collude with any person

in any manner whatsoever in the tendering process.

(b) In the event that the Tenderer is in breach of any of the representations and/or

warranties in Clause 16(a) above, the Official Receiver shall be entitled to, without

compensation to any person or liability on the part of the Official Receiver:

(i) reject the Tender;

(ii) if the Official Receiver has accepted the tender, withdraw its acceptance of

the Tender; and

(iii) if the Official Receiver has entered into the contract with the Tenderer,

terminate the contract.

(c) The Tenderer shall indemnify and keep indemnified the Official Receiver against

all losses, damages, costs or expenses arising out of or in relation to any breach of

any of the representations and/or warranties in Clause 16(a) above.

(d) Any breach of any of the representations and/or warranties in Clause 16(a) above

by the Tenderer may prejudice the Tenderer’s future standing as a Official Receiver

contractor.

(e) Clause 16(a) shall have no application to the Tenderer’s communications in strict

confidence with its own insurers or brokers to obtain an insurance quotation for

computation of the Required Subsidy, or with its professional advisers, consultants

or sub-contractors to solicit their assistance in preparation of the tender submission.

(f) The rights of the Official Receiver under Clauses 16(b) to (d) above are in addition

to and without prejudice to any other rights or remedies available to it against the

Tenderer.

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Annex I –Essential Requirements

A Tenderer must meet all of the essential requirements in this Annex I in order to qualify for tender

assessment. Save as otherwise provided, the Tender Closing Date shall be the cut-off date in

counting experience. A Tenderer failing to meet any of the essential requirements will be

disqualified and its tender will not be considered further.

1. The Tenderer must be a sole proprietor, a partnership or a company as defined in section 2

of the Companies Ordinance (Cap. 622) with a minimum of two Appointment Takers.

Each of the Appointment Takers must be -

(a) a certified public accountant within the meaning of section 2 of the Professional

Accountants Ordinance (Cap. 50); or

(b) a solicitor within the meaning of section 2(1) of the Legal Practitioners

Ordinance (Cap. 159); or

(c) a current member of The Hong Kong Institute of Chartered Secretaries.

2. Each of the Appointment Takers must -

(a) have at least 3 years of post-qualification experience in the relevant profession; and

(b) have a minimum of 300 chargeable hours of experience acquired after obtaining the

relevant professional qualifications (“the Qualifying Chargeable Hours”) over

the last 3 years -

(i) of which, at least 150 hours of experience must be experience in managing

corporate insolvency cases either as a liquidator/provisional liquidator or a

receiver or as their senior subordinates assisting them in the performance of

their role related to insolvency work on companies or receiverships of

companies. The chargeable hours of experience must have been obtained in

at least 4 separate compulsory winding-up of unconnected companies. For

the purpose of tender evaluation on chargeable hours of experience, no

more than 75 hours of experience on receivership will be counted; and a

pass in the Hong Kong Institute of Certified Public Accountants (HKICPA)

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Professional Diploma in Insolvency Programme will be regarded as being

equivalent to 50 chargeable hours of insolvency work experience; and

(ii) the remaining hours of experience may be on solvent liquidations in which

case, for the purpose of tender evaluation, the chargeable hours counting

towards the Qualifying Chargeable Hours would be reduced by 50%, so

that two chargeable hours on solvent liquidation will be counted as one

Qualifying Chargeable Hour.

3. At least one of the Appointment Takers must be a proprietor, partner or director of the

Tenderer. Other Appointment Takers, if not being the partners or directors of the

Tenderer, must be full-time employees of the Tenderer.

4. The Tenderer must have provided insolvency, accounting, legal or company secretary

services in Hong Kong for at least 3 consecutive years immediately prior to the Tender

Closing Date.

5. At the Tender Closing Date, the Tenderer must have at least 10 employees, 5 of them must

be full-time employees of the Tenderer. These employees must not be the proprietor in

case of the Tenderer being a sole proprietorship, any of the partners in case of a

partnership, any of the directors in case of a company, or any of the Appointment Takers.

6. The Tenderer and its Appointment Takers have not been (a) disqualified or suspended by

the Official Receiver from participating in any tender/quotation exercises conducted by the

Official Receiver's Office; or (b) disqualified or suspended by other insolvency agencies or

bodies outside Hong Kong from participating in any tender/quotation exercises conducted

by them.

7. A Tenderer will not qualify for tender assessment if the Official Receiver has, at any time

between 7 January 2012 and 6 January 2016 (i) terminated any contract made with the

Tenderer for the provision by the Tenderer of any insolvency services or work; or

(ii) suspended for any period of 2 months or more the allocation of cases or work to the

Tenderer under any contract made with the Tenderer for the provision by the Tenderer of

any insolvency services or work, by reason of:

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(a) any breach of the Tenderer of any of the terms and conditions of such contract;

and/or

(b) the quality of any of the work or services provided under such contract being

considered by the Official Receiver to be unsatisfactory.

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CONDITIONS OF CONTRACT

1. No Conferment of Third Party’s Rights

The parties hereby declare that nothing in this Contract confers or purports to confer on any

third party any benefit or any right to enforce any term of this Contract pursuant to the

Contracts (Rights of Third parties) Ordinance (Cap.623)

2. Total Services

The Firm shall perform the Services in accordance with the Conditions of Contract and the

Work Specifications.

3. No Assignment

The Firm is strictly prohibited from assigning, transferring or otherwise parting with this

Contract or any part, share or interest therein. The performance of this Contract by the

Firm shall be deemed to be personal to the Firm.

4. Qualified Cases to be allocated to the Firm

There is no guarantee on the total number of Qualified Cases to be allocated to each Firm.

The Official Receiver will allocate Qualified Cases on a rotation basis or such other basis

as the Official Receiver considers appropriate and is not bound to allocate an equal number

of Qualified Cases to each Firm.

5. Security and Undertaking

(a) The Firm must, at all material times, be covered by professional indemnity

insurance to the satisfaction of the Official Receiver. Where there is renewal of

professional indemnity insurance, the Firm shall, within 2 months upon the expiry

of the prevailing professional indemnity insurance, provide a copy of the new

professional indemnity insurance to the Official Receiver. In the event that the

Firm fails to maintain the validity of such insurance to the satisfaction of the

Official Receiver, the Official Receiver shall be entitled to (i) terminate the

Contract forthwith without any compensation to the Firm or incurring any liability

to anyone whatsoever; and/or (ii) allocate or reallocate the Qualified Cases to other

Firm(s).

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(b) The Firm may, in respect of the Qualified Cases allocated to it, be required to give

separate security pursuant to rule 47 of the Companies (Winding-up)

Rules (Cap. 32H) to the satisfaction of the Official Receiver.

(c) The Firm shall ensure that each Appointment Taker duly observe and comply with

all applicable obligations under the Contract as if he were a party to the Contract.

The Firm shall, in respect of each Appointment Taker, provide the Official

Receiver with an undertaking in favour of the Official Receiver and the Firm (in the

form set out in Annex IV and duly executed by each Appointment Taker) before the

commencement of the Services and, where there is any subsequent change of

Appointment Takers, within 7 days of such change. Each incoming Appointment

Taker and the Firm must: (i) satisfy the requirements as set out in Clauses 1, 2 and

3 of the essential requirements in Annex I ; and (ii) have not been (a) disqualified or

suspended by the Official Receiver from participating in any tender/quotation

exercises conducted by the Official Receiver’s Office; or (b) disqualified or

suspended by other insolvency agencies or bodies outside Hong Kong from

participating in any tender/quotation exercises conducted by them.

(d) In the event of the Firm failing to provide the undertaking of any of the

Appointment Takers in the manner and within the time as specified in

Condition 5(c) above, the Official Receiver shall be entitled to (i) terminate the

contract forthwith without any compensation to the Firm or incurring any liability

to anyone whatsoever; and/or (ii) allocate or reallocate the Qualified Cases to other

Firm(s).

6. Conflict of interest

The Firm as well as each of its Appointment Takers appointed as joint and several

provisional liquidators or liquidators in a Qualified Case shall avoid any conflict of interest

in performing the Services in any Qualified Case allocated to the Firm. The Firm and its

Appointment Takers must inform the Official Receiver forthwith if there is any conflict of

interest or a real risk of conflict of interest between the Firm and/or any of its Appointment

Takers and the company in liquidation or any other parties in any Qualified Case allocated

to the Firm. The decision of the Official Receiver as to whether there is a conflict of

interest shall be final and conclusive. The Official Receiver shall have the right to

reallocate the Qualified Cases to other Firms.

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7. No Acceptance of Advantages

The Firm as well as each of its Appointment Takers appointed as joint and several

provisional liquidators or liquidators in a Qualified Case shall not accept any advantages or

benefit from the directors, the contributories, the creditors or any person in relation to any

Qualified Case allocated to the Firm.

8. Fees and Remuneration

(a) Subject to the Official Receiver’s right to scrutinize the bill and, if necessary,

taxation by the Court, the fees and remuneration of the Firm for provision of the

Services in any Qualified Case shall be charged out of the assets of the wound-up

company on a time-cost basis. The actual hourly rate per grade of employees, sole

proprietors, partners, company directors and Appointment Takers shall in no

circumstances be in excess of the rates as stipulated in the Quotation Sheet at

Annex II.

(b) Where the Firm’s Appointment Takers are appointed as liquidators under

section 227F of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32) following from their appointment as joint and several

provisional liquidators in a Qualified Case, the Firm shall be entitled to charge such

fees and remuneration in accordance with the provisions of the Companies (Winding

Up and Miscellaneous Provisions) Ordinance (Cap. 32) or as may be approved by

the Court, out of the assets of the wound-up company.

(c) If the assets of the wound-up company are insufficient to meet the Firm’s fees and

remuneration as provided in Condition 8(a) and (b) above, subject to

Condition 11(c)(vii), the shortfall will be met from the Subsidy but only to the extent

of the Required Subsidy.

(d) The Subsidy and the Required Subsidy shall be calculated and payable strictly on a

case by case basis. Under no circumstances will such Subsidy or Required Subsidy

or any balance thereof be transferred between cases.

(e) No Subsidy will be payable in respect of any Qualified Case allocated to the Firm

unless a summary procedure order under section 227F of the Companies (Winding

Up and Miscellaneous Provisions) Ordinance (Cap. 32) is made in respect of the

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Qualified Case. The Firm’s fees and remuneration (including Services performed by

the Appointment Takers when acting as joint and several provisional liquidators or

liquidators) in a case where no summary procedure order is made under section 227F

of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32)

shall be paid out of the assets of the company in accordance with the provisions of

the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32).

(f) Subsequent rescission of the summary procedure order made under section 227F of

the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) in

respect of a Qualified Case shall not affect any payment of Subsidy already effected

unless the summary procedure order was obtained by material non-disclosure or

misrepresentation to the Court.

(g) Other than those set out in Conditions 8(a) - (f), no other remuneration, costs or

expenses shall be payable to the Firm or Appointment Takers as remuneration for

provision of the Services in any Qualified Case.

9. Performance of the Firm

(a) The performance of the Firm will be monitored by the Official Receiver in terms of

the time taken to complete the Qualified Case, the quality of work, and also in

accordance with sections 203 and 204 of the Companies (Winding Up and

Miscellaneous Provisions) Ordinance (Cap.32) and other relevant provisions

therein.

(b) The Firm or its Appointment Takers, in respect of a Qualified Case allocated to the

Firm by the Official Receiver, shall act in a fiduciary capacity and shall deal with

property under their control in good faith, with proper skill and competence and in a

reasonable manner. They are expected to complete the Qualified Case in

administering the company’s estate in accordance with the Companies (Winding Up

and Miscellaneous Provisions) Ordinance (Cap. 32) in an expeditious and

professional manner.

(c) The Firm or its Appointment Takers shall provide, perform and carry out the

Services in all respects with professionally acceptable standards (including ethical

standards of the relevant professions) and in compliance with all relevant statutory

requirements, the terms and conditions of the Contract and the standard and

32

requirements of the court. For this purpose, the Official Receiver’s decision as to

what constitute professionally acceptable standards or whether any of the Services

provided, performed or carried out in any Qualified Case meets the professionally

acceptable standards or complies with the relevant statutory requirements, the terms

and conditions of the Contract or the standard or requirements of the court shall be

final and conclusive.

(d) For the avoidance of doubt, in relation to the provision, performance or carrying out

of the Services, the act, omission, negligence, breach, default or failure of or by any

of the proprietors, partners, directors and employees of the Firm shall be deemed to

be the act, omission, negligence, breach, default or failure of the Firm.

(e) The Firm or its Appointment Takers, in respect of a Qualified Case allocated to the

Firm by the Official Receiver, shall complete the Qualified Case by obtaining a

release order from the Court under section 205 of the Companies (Winding Up and

Miscellaneous Provisions) Ordinance (Cap. 32) in an expeditious and professional

manner. If a Qualified Case cannot be completed within one year of the

appointment, a report is required to be submitted by them to the Official Receiver

before the expiration of the first year of their appointment giving explanations as to

why the Qualified Case cannot be so completed.

(f) The Firm or its Appointment Takers, as joint and several provisional liquidators or

liquidators in a Qualified Case, submit accounts, not less than twice in each year

during their tenure of office, to the Official Receiver pursuant to section 203 of the

Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) and

submit together with the first accounts under section 203 of the Companies

(Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) and the

subsequent accounts if so required by the Official Receiver, a progress report giving

details on what has been done; what needs to be done and also an indication with

reasons on whether or not the Qualified Case can be completed within one year of

the appointment.

(g) If the Firm or its Appointment Takers when acting as joint and several provisional

liquidators in a Qualified Case fails to comply with Clause 7(a) or 7(b) of the Work

Specifications, the Firm shall compensate the Official Receiver by way of liquidated

damages (and not as a penalty) for the additional costs it has incurred and/or will

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incur in monitoring the late application for summary procedure order or the delay in

holding the first meetings of creditors and contributories in respect of the Qualified

Case. If the application for a summary procedure order is made or the first meetings

of creditors and contributories are held more than 6 months after the date of the

winding-up order, the amount of liquidated damages shall be $1,000 plus $500 for

every full month of delay after the expiry of 6 months from the date of the

winding-up order. The amount of liquidated damages shall be deducted from the

Subsidy for the Qualified Case, and no interim payment of the Subsidy will be made.

Where necessary, the amount of liquidated damages may also be deducted from the

Subsidy for other Qualified Cases.

(h) If the Firm or its Appointment Takers when acting as joint and several provisional

liquidators in a Qualified Case makes an application for a summary procedure order

or convenes the first meetings of creditors and contributories more than 8 months

after the date of the winding-up order and such delay has occurred in respect of 5 or

more Qualified Cases allocated to the Firm, the Firm:-

(i) shall pay liquidated damages to the Official Receiver in accordance with

Condition 9(g); and

(ii) shall not be allocated new Qualified Cases in the remaining term of the

Contract.

(i) If the Firm or its Appointment Takers when acting as joint and several provisional

liquidators in a Qualified Case makes an application for a summary procedure order

or convenes the first meetings of creditors and contributories more than 10 months

after the date of the winding-up order and such delay has occurred in respect of 5 or

more Qualified Cases allocated to the Firm, the Firm:-

(i) shall pay liquidated damages to the Official Receiver in accordance with

Condition 9(g);

(ii) shall not be allocated new Qualified Cases in the remaining term of the

Contract; and

(iii) may be debarred from participating in future tenders under section 194(1A)

of the Companies (Winding Up and Miscellaneous Provisions) Ordinance

(Cap. 32) for such period as the Official Receiver thinks fit.

(j) Without prejudice to any of the provisions in Condition 11(a) hereof and to the right

of termination or any other rights and remedies which the Official Receiver may

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have, the Official Receiver may issue a warning letter to the Firm, if the Firm fails

to:-

(i) provide a copy of the new professional indemnity insurance specified in

Condition 5(a) to the Official Receiver;

(ii) give separate security under Condition 5(b);

(iii) submit liquidator’s account to the Official Receiver pursuant to section 203

of the Companies (Winding Up and Miscellaneous Provisions) Ordinance

(Cap. 32) specified in Condition 9(f);

(iv) provide necessary assistance and complete a questionnaire as may be

required by the Official Receiver when quality audit is conducted in

accordance with Condition 14;

(v) comply with Clause 5 of the Work Specifications;

(vi) provide all relevant statistics and information and produce any documents

in connection with the Qualified Cases as and when required by the Official

Receiver under Clause 6 of the Work Specifications;

(vii) apply to the court for summary procedure order or convene the first

meetings of creditors and contributories within 3 months of the date of the

winding-up order as specified under Clause 7(a) of the Work

Specifications;

(viii) report the conduct of the directors of the wound up company to the Official

Receiver in accordance with section 168I(3) of the Companies (Winding

Up and Miscellaneous Provisions) Ordinance (Cap. 32) by submitting Form

D1 or D2 as appropriate as provided in section 2 and section 3 of the

Companies (Reports on Conduct of Directors) Regulation (Cap. 32J).

(k) If the Firm fails to comply with or make good its failure within such time as may be

stipulated in the warning letter in respect of the Qualified Cases allocated to the

Firm under the Contract without good cause, the Official Receiver may suspend the

allocation of Qualified Cases to the Firm for such period as the Official Receiver

may determine.

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10. Payment Procedures

(a) Payment of fees and remuneration shall be in accordance with Conditions 8 and 9

and shall be paid out in the first instance from the net realised assets of the wound up

company after all priority disbursements and charges have been paid as stipulated in

rule 179 of the Companies (Winding-up) Rules (Cap. 32H).

(b) Subject to Conditions 8 and 9, the Appointment Takers of the Firm shall as soon as

possible and in any event not later than 12 weeks after their appointment, advise the

Official Receiver whether the net realised assets available are unlikely to be

sufficient to fully pay his fees and remuneration, in which case, the Official Receiver

may effect an interim payment of the Firm’s time-cost charges up to 60 percent of

the Required Subsidy. Further payment, not exceeding the balance of the Required

Subsidy and after deduction of any Subsidy in accordance with Condition 9(g), if

claimed, will be paid upon the completion of the Qualified Case and the

Appointment Takers having obtained a release order from the court under

section 205 of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32). The Firm shall apply to the Official Receiver in writing for the

interim or further payment by way of submitting a bill which shall be in such form

and contain such particulars as required by the Official Receiver. The bill shall also

contain a narrative history of the work undertaken so far together with details of the

billable hours and the names and grade of staff employed on the liquidation. All

claims for payment under this Condition shall be made in such form as the Official

Receiver may prescribe. Any overpayment of the Required Subsidy shall be

reimbursed to the Official Receiver.

(c) Any payment by the Official Receiver shall be without prejudice to any right or

cause of action which has or may have accrued, or any remedy which may be

available to the Official Receiver in respect of any non-compliance of the Contract

by the Firm.

11. Termination of Contract and suspension

(a) If (i) the Firm fails to carry out all or any of the Services including declining to act as

provisional liquidator or liquidators in the Qualified Case; or

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(ii) the Firm continues to act as a provisional liquidator or liquidator in the

Qualified Case despite that it has been removed from office as the provisional

liquidator or liquidator in the Qualified Case; or

(iii) the quality of the Services in any Qualified Case allocated to the Firm is in

opinion of the Official Receiver whose opinion is final and conclusive,

unsatisfactory; or

(iv) there is any breach of any term or condition of the Contract by the Firm; or

(v) the Firm commits a breach of any term or condition of the Contract which, in the

opinion of the Official Receiver, is rectifiable and the Firm fails to make good

the breach to the satisfaction of the Official Receiver in such manner and within

such time as the Official Receiver may require; or

(vi) at any time during the subsistence of the Contract, the Firm or any proprietor,

partner, director or Appointment Taker of the Firm is or has been:

(aa) removed by the court in Hong Kong or outside Hong Kong from his office

as provisional liquidator, liquidator, provisional trustee or trustee in any

bankruptcy or liquidation case for any breach of duty or misconduct; or

(bb) subject to a disqualification order made against him under Part IVA of the

Companies (Winding Up and Miscellaneous Provisions) Ordinance

(Cap. 32) or any order under any legislation of Hong Kong or any other

jurisdiction having the effect of disqualifying or prohibiting him from any

one or more of the following:

(I) being a director of a company;

(II) being a liquidator of a company;

(III) being a receiver of a company’s property;

(IV) being a trustee in bankruptcy or the equivalent or similar office

holder in that jurisdiction;

(V) taking part in the management of companies; or

(vii) the Firm or any proprietor, partner, director or Appointment Taker of the Firm

becomes bankrupt or is being subject to a bankruptcy petition or bankruptcy

order or is being wound up or subject to a winding up petition or winding up

order, under the laws of Hong Kong or any other jurisdiction,

37

the Official Receiver may terminate the Contract forthwith at any time or by giving a

notice in writing of such number of days as the Official Receiver thinks fit; and if the

Official Receiver so terminates the Contract, he may-

(1) at liberty to engage other Firms or any other service providers to take up

the remaining Services; and/or

(2) refuse to pay for any service rendered unless the conditions for payment

under Condition 10 have been met and payment is due; and/or

(3) demand the Firm to refund, and the Firm shall upon such demand refund,

all the Required Subsidy and other payments paid to the Firm or such parts

thereof in all or such Qualified Cases as the Official Receiver may at his

discretion determine.

(b) Without prejudice to any of the provisions in Condition 11(a) hereof and to the right

of termination or any other rights and remedies which the Official Receiver may

have, the Official Receiver may, in those circumstances mentioned in any of

Condition 11(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) at any time forthwith or by giving

a notice in writing of such number of days as the Official Receiver thinks fit suspend

the allocation of Qualified Cases to the Firm until such time or for such period as the

Official Receiver may in his absolute discretion determine, and the Official Receiver

may arrange other Firms or any other service providers to take up the appointment

which, if not because of the suspension, would have been allocated to the Firm

during the Allocation Period. The suspension shall be for such time/period as the

Official Receiver sees fit. The suspension can be withdrawn at any time and in such

manner as the Official Receiver considers appropriate.

(c) Without prejudice to any of the provisions in Condition 11(a) hereof and to the right

of termination or suspension or any other rights and remedies which the Official

Receiver may have, the Official Receiver may, in those circumstances mentioned in

any of Condition 11(a)(i), (ii), (iii), (iv) and (v) take one or more of the following

actions –

(i) disqualify the Firm and/or its Appointment Takers from participating in any

future tender/quotation exercises conducted by the Official Receiver’s

Office for such period of time as may be determined by the Official

Receiver;

38

(ii) file with the relevant professional bodies complaints of misconduct or

breach of contract;

(iii) refuse to pay for any service rendered unless the conditions for the payment

under Condition 10 have been met and payment is due;

(iv) demand the Firm to refund, and the Firm shall upon such demand refund, all

the Required Subsidy and other payments paid to the Firm or such parts

thereof in all or such Qualified Cases as the Official Receiver may at his

discretion determine;

(v) apply to court for removal of the Appointment Takers from acting as

provisional liquidators or liquidators in any Qualified Case already

allocated to the Appointment Takers;

(vi) suspend the Firm’s and/or its Appointment Takers’ right to participate in

the Panel A Scheme if the Firm or its Appointment Takers are registered

members of the Panel A Scheme;

(vii) disallow any payment of Subsidy in respect of any Qualified Cases

allocated to the Firm prior to the termination of the Contract;

(viii) report the conduct of the Appointment Takers to the Court under

section 204 of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32).

(d) The Official Receiver may at any time terminate the Contract without cause to take

effect immediately or by giving a notice in writing of such number of days as the

Official Receiver thinks fit. In that event, the provisions in Condition 11(a)(1) shall

apply and the Official Receiver shall not be responsible for any loss or damage to the

Firm in connection with, arising from and in relation to such termination.

12. Notices

Any notice given under the Contract shall be deemed to be received as follows -

(a) Fax - on the date when sent.

(b) Letter - 4 days after the date of posting.

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13. Change in Qualification Status or other information

(a) Throughout the Allocation Period, the Firm shall immediately inform the Official

Receiver in writing of any factor which may affect its qualification status as stated

in Annex I or any change in any information contained in the Quotation Sheet at

Annex II and in the declarations in Forms A and B of Annex III submitted by the

Firm.

(b) The Firm shall provide information and documents regarding its qualification

status to the satisfaction of the Official Receiver as and when required by the

Official Receiver.

14. Quality Audit

The Official Receiver may, upon giving not less than 7 days’ prior written notice to the

Firm or its Appointment Taker (provided that prior notice may be dispensed with in cases

with special circumstances such as upon the court’s requests), conduct quality audit of any

or all the Qualified Cases handled by the Firm and/or its Appointment Takers in the current

or previous year. The Official Receiver will conduct quality audit on around 5% of the

Qualified Cases and this percentage should not be prejudiced should Official Receiver is of

the view that audit should be conducted on more than 5% of the cases. To facilitate the

carrying out of the quality audit, the Firm and/or its Appointment Takers shall provide such

assistance to the Official Receiver and/or its authorised representatives as may be required,

including (but not limited to) the giving of permission to enter the Firm’s premises, the

completion of any questionnaire that may be required by the Official Receiver, the giving

of access to all information possessed or controlled by the Firm and/or its Appointment

Takers and recorded or stored by whatever means which the Official Receiver considers

relevant to the quality audit, the reproduction of the said information by whatever means

and the use of best endeavours to provide answers to questions that may be raised from

time to time.

15. Extension of Contract

(a) The Official Receiver may (i) extend the Contract and the Allocation Period by

giving written notice to the Firm not less than 30 days before the end of the

Allocation Period for a period as the Official Receiver and (ii) may further extend

40

the Contract and the Allocation Period by giving writing notice not less 7 days

before the expiry of the extension.

(b) If the Official Receiver exercises this option, the Firm shall perform the Services

under the same terms and conditions of the Contract.

(c) The Official Receiver may direct successive extensions provided that a notice to

that intent is given in the manner as set out in para.(a)(ii) and that the total duration

of this Contract and the Allocation Period, including extension, shall not exceed 30

months.

16. Law and Jurisdiction

The Contract shall be governed by and construed in accordance with the laws of the Hong

Kong SAR and the parties thereto shall submit to the jurisdiction of the courts of the Hong

Kong SAR.

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WORK SPECIFICATIONS

1. Joint and Several Liquidators

The Firm’s Appointment Takers shall take up the appointment as joint and several

provisional liquidators in Qualified Cases allocated to the Firm by the Official Receiver

during the Allocation Period. Any act required or authorized to be done by the liquidators

is to be done by the Appointment Takers jointly or any one of them singly.

2. No right of refusal

The Firm shall take up the appointment to perform the Services in Qualified Cases

allocated to it by the Official Receiver during the Allocation Period. The Firm shall have

no right to reject or to refuse to accept any such allocation.

3. Full-time Employees

The Firm shall ensure that all Qualified Cases allocated to the Firm are handled in a

professional and expeditious manner. In this regard, the Firm: -

(a) must keep and maintain not less than 10 employees including at least 5 full-time

employees, not being the proprietor in case of the Tenderer being a sole

proprietorship, any of the partners in case of a partnership, any of the directors in

case of a company, or any of the Appointment Takers as stipulated in the essential

requirements in Annex I; and

(b) shall not utilize employees or agents from other firms or companies, or permit any

part of the Services to be carried out by any person who is not being under its direct

employment. All full-time employees employed by the Firm to perform the

Services shall be stationed in Hong Kong.

4. Data Privacy

The Firm shall strictly comply with the Personal Data (Privacy) Ordinance, Cap. 486 in

relation to all personal data it is required to handle for performing the Services (“the

Personal Data”). Without prejudice to the generality of the foregoing, the Firm shall

comply with the following specific requirements:-

(a) The Firm shall provide written guidelines and training for its employees on the secure

handling of the Personal Data;

(b) The Firm shall not keep the Personal Data upon completion of the Services;

42

(c) Process, use or disclosure of the Personal Data other than for the purpose of

performing the Services is prohibited;

(d) The Firm shall immediately report to the Official Receiver in writing with details on

any suspected case of loss, unauthorized or accidental use or disclosure of the

Personal Data.

5. Tasks and Duties

The Firm’s Appointment Takers shall in respect of a Qualified Case allocated to the Firm

by the Official Receiver, perform with professionally acceptable standards, all such tasks

and duties as are necessary or may be required of a provisional liquidator under

section 194(1A) of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap.32); and all such tasks and duties as are necessary or may be required

under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32) of

a liquidator appointed under section 227F thereof (when the Appointment Takers are so

appointed) and such other tasks or duties as may be imposed on them by the Official

Receiver pursuant to this Contract, including but not limited to the duty to convene the first

meetings of creditors and contributories under section 194(1)(b) of the Companies

(Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) if the assets of the

company turn out to be more than $200,000 in value.

6. Statistics and Information

The Firm shall provide all the relevant statistics and information and produce any

documents in connection with the Qualified Cases including without limitation the records

required to be kept by the Appointment Takers under section 201 of the Companies

(Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) as and when required by

the Official Receiver.

7. Application for Summary Procedure Order

(a) The Firm’s Appointment Takers when appointed as joint and several provisional

liquidators in a Qualified Case, shall apply to the court within 3 months of the date of

the winding-up order of that company for a summary procedure order pursuant to

section 227F of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32).

43

(b) Where the Firm’s Appointment Takers have reasons to believe that the value of the

assets of the company will exceed $200,000, they shall forthwith and in any event no

later than 12 weeks from the date of the winding-up order, notify the Official

Receiver of the same, and shall within 3 months of the date of the winding-up order,

arrange to convene the first meetings of creditors and contributories under

section 194(1)(b) of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32) and rule 106 of the Companies (Winding-Up) Rules (Cap. 32H)

unless the court otherwise directs under rule 106 of the Companies (Winding-up)

Rules (Cap. 32H).

8. Summary Procedure Order

The Firm’s Appointment Takers when appointed as joint and several provisional liquidators

in a Qualified Case shall (unless the Court orders otherwise) continue to act as the

company’s liquidators when the summary procedure order is granted by the court under

section 227F of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32), and shall perform with professionally acceptable standards, all such

tasks and duties as are necessary or may be required of a liquidator under and pursuant to the

provisions of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32), until the completion of the case and his obtaining a release order from

the court under section 205 of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32) and an order for the dissolution of the company under section 227 of the

Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32). Thereafter,

the Firm’s Appointment Takers shall deal with and complete all outstanding matters and

issues arising from the Qualified Case for whatever reasons after their obtaining the release

order under section 205 of the Companies (Winding Up and Miscellaneous Provisions)

Ordinance (Cap. 32) and the order for the dissolution of the company under section 227 of

the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) including,

without limitation, making application under section 290 of the Companies (Winding Up

and Miscellaneous Provisions) Ordinance (Cap. 32).

9. Professional Standards

The Appointment Takers of the Firm shall ensure that the performance of the Firm complies

in all respects with (a) the accepted professional standards and ethical guidelines of their

relevant professions and (b) the standard and requirements of the court.