ACTION AFRICA HELP INTERNATIONAL -KAKUMA TENDER …

ACTION AFRICA HELP INTERNATIONAL - KAKUMA

TENDER DOCUMENT

FOR

CONSTRUCTION OF 6 FOUR DOORS BIODIGESTER PITLATRINES IN LOPUR WARD, TURKANA WEST SUB-

COUNTY

TENDER RERERENCE NO. 1163/KKM/RFP/01/2020

TENDERCLOSINGDATE: 11THMARCH, 2020TIME: 10:00 A.M (KENYALOCAL TIME)

Information contained in this document is provided strictly to assist prospective bidders in their bidpreparation. Any other use or disclosure to a third party is restricted and requires prior permission fromAAHI.


TENDER DOCUMENT

FOR


COUNTY





TENDER DOCUMENT

FOR


COUNTY




FEBRUARY 2020

TABLE OF CONTENTS

ABBREVIATIONS AND ACRONYMS ....................................................................iii

SECTION I: INVITATION FOR TENDERS (IFT) ................................................. iv

SECTION II: INSTRUCTIONS TO TENDERERS (ITT) ........................................... 6

SECTION III: TENDER DATA SHEET................................................................... 31

SECTION IV: GENERAL CONDITIONS OF CONTRACT .................................... 36

SECTION V: CONTRACT DATA SHEET (CDS).................................................... 61

SECTION VI: TECHNICAL SPECIFICATIONS .................................................... 65

SECTION VII: DRAWINGS..................................................................................... 65

SECTION VIII: BILL OF QUANTITIES ................................................................. 67SECTION IX: EVALUATION CRITERIA…………………………………………………77

SECTION X: TENDER FORMS............................................................................... 80

SECTION XI: FORMS OF SECURITY.................................................................... 88

SECTION XII: APPLICATION TO PUBLIC PROCUREMENT ADMINISTRATIVEREVIEW BOARD................................................................................................. 94

ABBREVIATIONS AND ACRONYMS

CDS Contract Data Sheet

GCC General Conditions of Contract

IFT Invitation for Tender

ITT Instruction to Tenderers

PE Procuring Entity

PM Project Manager

PPADA 2015 Public Procurement and Assets Disposal Act, 2015

PPDR 2006 Public Procurement and Disposal Regulations, 2006

PPOA Public Procurement Oversight Authority

STD Standard Tender Documents

SOR Statement of Requirements

SP Service Provider

TDS Tender Data Sheet

VAT Value Added Tax

SECTION I: INVITATION FOR TENDERS (IFT)

SECTION I: INVITATION FOR TENDERS (IFT)

TENDER REF NUMBER: 1163/KKM/RFP/01/2020

TENDER NAME:

Construction of 6 Four door Bio-digester pit latrines in Lopur ward, Turkanawest sub-county.

1.1 Action Africa Help International invite sealed tender from eligible candidates forConstruction of six 4 door Bio-digester latrines in Lopur ward, Turkana west sub-county.

2.1 Interested eligible candidates may obtain further information from the procurementoffice Action Africa Help International located in Kakuma, NCCK compound 3 duringnormal working hours or visit our website at www.actionafricahelp.org

3.1 A complete set of tender documents shall be made available on the company website:www.actionafricahelp.org and obtained by interested candidates without paying anyfee.

4.1 Prices quoted should be net inclusive of all taxes, must be in Kenya Shillings and shallremain valid for 120 days from the closing date of the tender.

5.1 Completed tender documents are to be enclosed in plain sealed envelopes marked withtender reference number and be deposited in the Tender Box which is located at AAHImain offices compound in Kakuma, NCCK compound 3 so as to be received on orbefore 11th March 2020.

Tenders will be opened immediately thereafter in the presence of bidders or theirrepresentatives who choose to attend in AAHI conference hall in Kakuma.

SECTION II: INSTRUCTIONS TO TENDERERS (ITT)

Table of Clauses

SECTION II: INSTRUCTIONS TO TENDERERS (ITT)............................................6A. Introduction........................................................................................................9

1. Scope of Tender........................................................................................................92. Source of Funds ........................................................................................................93. Eligible Tenderers.....................................................................................................94. One Tender per Tenderer........................................................................................105. Alternative Tenders by Tenderers...........................................................................106. Cost of Tendering ...................................................................................................117. Site Visit and Pre-Tender Meeting .........................................................................11

B. Tendering Documents......................................................................................128. Content of Tendering Documents...........................................................................129. Clarification of Tendering Documents ...................................................................1310. Amendments of the Tendering Documents ............................................................13

C. Preparation of Tenders .....................................................................................1311. Language of Tender................................................................................................1312. Documents Constituting the Tender .......................................................................1313. Documents Establishing Eligibility and Qualifications of the Tenderer ................1414. Lots Package...........................................................................................................1515. Form of Tender .......................................................................................................1516. Tender Prices ..........................................................................................................1517. Tender Currencies...................................................................................................1618. Tender Validity Period ...........................................................................................1619. Tender Security and Tender Securing Declaration.................................................1720. Format and Signing of Tender ................................................................................18

D. Submission of Tenders.....................................................................................1921. Sealing and Marking of Tenders.............................................................................1922. Deadline for Submission of Tenders ......................................................................1923. Late Tenders ...........................................................................................................2024. Modification, Substitution and Withdrawal of Tenders .........................................20

E. Opening and Evaluation of Tenders ................................................................2025. Opening of Tenders ................................................................................................2026. Confidentiality ........................................................................................................2227. Clarification of Tenders..........................................................................................2228. Preliminary Examination of Tenders......................................................................2229. Correction of Errors................................................................................................2330. Conversion to Single Currency...............................................................................2431. Comparison of Tenders...........................................................................................2432. National Preference ................................................................................................2433. Determination of the Lowest Evaluated Tender .....................................................2534. Post-qualification of Tenderer ................................................................................25

F. Award of Contract............................................................................................2535. Criteria of Award....................................................................................................2536. Clarifications...........................................................................................................2637. Procuring Entity’s Right to Accept any Tender and to Reject any or all Tenders..2638. Procuring Entities Right to Vary Quantities at the Time of Award........................2639. Notification of Award.............................................................................................2740. Signing of Contract.................................................................................................2741. Performance Security..............................................................................................2842. Advance Payment ...................................................................................................2843. Adjudicator .............................................................................................................28

G. Review of Procurement Decisions...................................................................2944. Right to Review ......................................................................................................29

45. Time Limit on Review............................................................................................2946. Submission of Applications for Review by the Public Procurement AdministrativeReview Board...................................................................................................................2947. Decision by the Public Procurement Administrative Review Board......................3048. Appeal on the decision of the Review Board..........................................................30

A. Introduction

1. Scope ofTender

1.1 Action Africa Help International (AAHI) invites Tenders for theconstruction of works as specified in the Tender Data Sheet andSections VI (Technical Specifications) and VII (Drawings).

1.2 The successful Tenderer will be expected to complete the works bythe required completion date specified in the Tender Data Sheet.

1.3 The objectives of the works are listed in the Tender Data Sheet.These are mandatory requirements. Any subsequent detail is offeredto support these objectives and must not be used to dilute theirimportance.

2. Source ofFunds

2.1 Action Africa Help International has received grant from WaterServices Trust Fund towards the cost of the Project named in theTender Data Sheet and intends to apply part of the proceeds of thisgrant to payments under the Contract described in the Tender DataSheet.

2.2 Payments will be made directly by Action Africa Help Internationalupon request to pay) and will be subject in all respects to the termsand conditions of the resulting contract.

3. EligibleTenderers

3.1 A Tenderer may be a natural person, private or public company,government-owned institution, subject to sub-Clause 3.4 or anycombination of them with a formal intent to enter into an agreementor under an existing agreement in the form of a joint venture,consortium, or association. In the case of a joint venture, consortium,or association, unless otherwise specified in the Tender Data Sheet,all parties shall be jointly and severally liable.

3.2 The Invitation for Tenders is open to all contractors as defined in thePublic Procurement and Disposal Act, 2005 and the PublicProcurement and Disposal Regulations, 2006 except as providedhereinafter.

3.3 National Tenderers shall satisfy all relevant licensing and/orregistration with the appropriate statutory bodies in Kenya, such asthe Ministry of Public Works or the Energy Regulatory Commission.

3.4 A Tenderer shall not have a conflict of interest. All Tenderers foundto have a conflict of interest shall be disqualified. A Tenderer may beconsidered to have a conflict of interest with one or more parties inthis Tendering process, if they:

a) Are associated or have been associated in the past directly orindirectly with employees or agents of the Procuring Entity or amember of a board or committee of the Procuring Entity;

b) Are associated or have been associated in the past, directly orindirectly with a firm or any of its affiliates which have beenengaged by the Procuring Entity to provide consulting services forthe preparation of the design, specifications and other documentsto be used for the procurement of the works under this Invitation

for Tenders;

c) Have controlling shareholders in common; or

d) Receive or have received any direct or indirect subsidy from anyof them; or

e) Have the same legal representative for purposes of this Tender; or

f) Have a relationship with each other, directly or through commonthird parties, that puts them in a position to have access toinformation about or influence on the Tender of another Tenderer,or influence the decisions of the Procuring Entity regarding thisTendering process; or

g) Submit more than one Tender in this Tendering process, however,this does not limit the participation of subcontractors in more thanone Tender, or as Tenderer and subcontractor simultaneously.

3.5 A Tenderer will be considered to have a conflict of interest if theyparticipated as a consultant in the preparation of the design ortechnical specification of the project and related services that are thesubject of the Tender.

3.6 Tenderers shall not be under a declaration of ineligibility for corruptand fraudulent practices issued by the Government of Kenya inaccordance with GCC sub-Clause 3.2.

3.7 Government owned enterprises in Kenya may participate only if theyare legally and financially autonomous, if they operate undercommercial law, are registered by the relevant registration board orauthorities and if they are not a dependent agency of the Government.

3.7 Tenderers shall provide such evidence of their continued eligibilitysatisfactory to the Procuring Entity, as the Procuring Entity shallreasonably request.

4. One Tenderper Tenderer

4.1 A firm shall submit only one Tender, in the same Tendering process,either individually as a Tenderer or as a partner in a joint venturepursuant to ITT Clause 5.

4.2 No firm can be a subcontractor while submitting a Tenderindividually or as a partner of a joint venture in the same Tenderingprocess.

4.3 A firm, if acting in the capacity of subcontractor in any Tender, mayparticipate in more than one Tender but only in that capacity.

4.4 A Tenderer who submits or participates in more than one Tender(other than as a subcontractor or in cases of alternatives that havebeen permitted or requested) will cause all the Tenders in which theTenderer has participated to be disqualified.

5. Alternative 5.1 Tenderers shall submit offers that comply with the requirements ofthe Tendering documents, including the basic Tenderer’s technical

Tenders byTenderers

design as indicated in the specifications and Drawings and Bill ofQuantities. Alternatives will not be considered, unless specificallyallowed for in the Tender Data Sheet. If so allowed, sub-Clause 5.2and 5.3 shall govern.

5.2 When alternative times for completion are explicitly invited, astatement to that effect will be included in the Tender Data Sheet aswill the method of evaluating different times for completion.

5.3 If so allowed in the Tender Data Sheet, Tenderers wishing to offertechnical alternatives to the requirements of the Tendering documentsmust also submit a Tender that complies with the requirements of theTendering documents, including the basic technical design asindicated in the specifications. In addition to submitting the basicTender, the Tenderer shall provide all information necessary for acomplete evaluation of the alternative by the Procuring Entity,including technical specifications, breakdown of prices, and otherrelevant details. Only the technical alternatives, if any, of the lowestevaluated Tenderer conforming to the basic technical requirementsshall be considered by the Procuring Entity.

6. Cost ofTendering

6.1 The Tenderer shall bear all costs associated with the preparation andsubmission of its Tender, and the Procuring Entity shall in no case beresponsible or liable for those costs, regardless of the conduct oroutcome of the Tendering process.

7. Site Visit andPre-TenderMeeting

7.1 The Tenderer, at the Tenderer’s own responsibility and risk, isadvised to visit and examine the Site of Works and its surroundingsand obtain all information that may be necessary for preparing theTender and entering into a contract for construction of the Works.The costs of visiting the Site shall be at the Tenderer’s own expense.

7.2 The Procuring Entity may conduct a site visit and a pre-Tendermeeting. The purpose of the pre-Tender meeting will be to clarifyissues and to answer questions on any matter that may be raised atthat stage.

7.3 The Tenderer’s designated representative is invited to attend a sitevisit and pre-Tender meeting which, if convened, will take place atthe venue and time stipulated in the Tender Data Sheet.

7.4 The Tenderer is requested as far as possible, to submit any questionsin writing or by electronic means to reach the procuring Entity beforethe pre-Tender meeting. It may not be practicable at the meeting toanswer all questions, but questions and responses will be transmittedin accordance with sub-Clause 7.5.

7.5 Minutes of the pre-Tender meeting, including the text of the questionsraised and the responses given together with any responses preparedafter the pre-Tender meeting will be transmitted within the time statedin the Tender Data Sheet to all purchasers of the Tenderingdocuments. Any modification of the Tendering documents listed insub-Clause 8.1 that may become necessary as a result of the pre-Tender meeting shall be made by the Procuring Entity exclusivelythrough the issue of an Addendum pursuant to ITT sub Clause 10.2

and not through the minutes of the pre-Tender meeting.

7.6 Non-attendance during the site visit or pre-Tender meeting will not bea cause for disqualification of a Tenderer unless specified to thecontrary in the Tender Data Sheet.

B. Tendering Documents

8. Content ofTenderingDocuments

8.1 The works required, Tendering procedures, and contract terms areprescribed in the Tendering Documents. In addition to the SectionI Invitation for Tenders, Tendering documents which should beread in conjunction with any addenda issued in accordance withITT sub Clause 10.2 include:

Section II Instructions to TenderersSection III Tender Data SheetSection IV General Conditions of ContractSection V Contract Data SheetSection VI SpecificationsSection VII DrawingsSection VIII Bill of QuantitiesSection IX Evaluation criteriaSection X Forms of Tender

Form of Tender Appendix to Tender Confidential Business Questionnaire Integrity Declaration Letter of Acceptance Form of Contract Agreement

Section XI Forms of Security Tender Security Form Tender Securing Declaration Performance Bank or Insurance Guarantee Advance Payment Guarantee

Section XII Form RB 1 Application to Public ProcurementAdministrative Review Board

8.2 The number of copies to be completed and returned with theTender is specified in the Tender Data Sheet.

8.3 The Invitation for Tenders (Section I) issued by the ProcuringEntity is not part of the Tendering Documents and is included forreference purposes only. In case of discrepancies between theInvitation for Tenders and the Tendering Documents listed in sub-Clause 8.1 above, the said Tendering Documents will takeprecedence.

8.4 The Procuring Entity is not responsible for the completeness of theTendering Documents and their addenda, if they were not obtaineddirectly from the authorized staff of the Procuring Entity.

8.5 The Tenderer is expected to examine all instructions, forms, termsand specifications in the Tendering documents. Failure to furnish

all information required by the Tendering Documents or to submita Tender substantially responsive to the Tendering documents inevery respect will be at the Tenderer’s risk and may result in therejection of its Tender.

9. Clarification ofTenderingDocuments

9.1 A prospective Tenderer requiring any clarification of theTendering documents may notify the Procuring Entity in writing,e-mail or facsimile at the Procuring Entity's address indicated inthe Tender Data Sheet.

9.2 The Procuring Entity will within the period stated in the TenderData Sheet respond in writing to any request for clarificationprovided that such request is received no later than the periodindicated in the Tender Data Sheet prior to the deadline for thesubmission of Tenders prescribed in sub-Clause 22.1.

9.3 Copies of the procuring entity's response will be forwarded to allPurchasers of the Tendering documents, including a description ofthe inquiry, but without identifying its source.

9.4 Should the Procuring Entity deem it necessary to amend theTendering documents as a result of a clarification, it shall do sofollowing the procedure under ITT Clause 10.

10. Amendments ofthe TenderingDocuments

10.1 Before the deadline for submission of Tenders, the ProcuringEntity may, for any reason, whether at its own initiative or inresponse to a clarification requested by a prospective Tenderer,modify the Tendering documents by issuing addenda.

10.2 Any addendum issued shall be part of the Tender documentspursuant to sub-Clause 8.1 and shall be communicated in writing,by e-mail or facsimile to all who have obtained the Tenderingdocuments directly from the Procuring Entity.

10.3 In order to allow prospective Tenderers reasonable time in whichto take an addendum into account in preparing their Tenders, theProcuring Entity at its discretion shall extend, as necessary, thedeadline for submission of Tenders, in accordance with sub-Clause22.2

C. Preparation of Tenders

11. Language ofTender

11.1 The Tender, and all correspondence and documents related tothe Tender exchanged by the Tenderer and the ProcuringEntity shall be written in the Tender language stipulated in theTender Data Sheet. Supporting documents and printedliterature furnished by the Tenderer may be in anotherlanguage provided they are accompanied by an accuratetranslation of the relevant passages in the above statedlanguage, in which case, for purposes of interpretation of theTender, the translation shall prevail.

12. Documents 12.1 The Tender submitted by the Tenderer shall consist of thefollowing components:

Constituting theTender a) The Form of Tender (in the format indicated in Section X)

completed in accordance with ITT Clause 15, 16 and 17;

b) Information requested by Instructions to Tenderers ITTsub-Clause 13.2; 13.3 and 13.4;

c) Tender Security or Tender Securing Declaration inaccordance with Instructions to Tenderers ITT Clause 19;

d) Priced Bill of Quantities;

e) Qualification Information Form and Documents;

f) Written confirmation authorizing the signatory of theTender to commit the Tenderer in accordance withInstructions to Tenderers ITT sub Clause 19.2; and

g) And any information or other materials required to becompleted and submitted by Tenderers, as specified in theTender Data Sheet.

13. DocumentsEstablishingEligibility andQualifications ofthe Tenderer

13.1 Pursuant to ITT Clause 13, the Tenderer shall furnish, as partof its Tender, documents establishing the Tenderer’s eligibilityto Tender and its qualifications to perform the contract if itsTender is accepted.

13.2 In the event that pre-qualification of potential Tenderers hasbeen undertaken, only Tenders from pre-qualified Tendererswill be considered for award of contract. These qualifiedTenderers should submit their Tenders with any informationupdating the original pre-qualification applications or,alternatively, confirm in their Tenders that the originallysubmitted pre-qualification information remains essentiallycorrect as of the date of Tender submission. The update orconfirmation should be provided in Section X.

13.3 If the Procuring Entity has not undertaken pre-qualification ofpotential Tenderers, to qualify for award of the contract,Tenderers shall meet the minimum qualifying criteriaspecified in the Tender Data Sheet:

13.4 Tenders submitted by a joint venture of two or more firms aspartners shall comply with the following requirements, unlessotherwise stated in the Tender Data Sheet:

a) The Tender shall include all the information listed in theTender Data Sheet pursuant to sub-Clause 13.3 above foreach joint venture partner;

b) The Tender shall be signed so as to be legally binding onall partners;

c) One of the partners will be nominated as being in charge,and this authorization shall be evidenced by submitting a

power of attorney signed by legally authorized signatoriesof all the partners;

d) The partner in charge shall be authorized to incur liabilitiesand receive instructions for and on behalf of any and allpartners of a joint venture and the entire execution of theContract, including payment, shall be done exclusivelywith the partner in charge;

e) All partners of the joint venture shall be liable jointly andseverally for the execution of the contract in accordancewith the contract terms and a statement to this effect shallbe included in the authorization mentioned under (c) aboveas well as in the Tender and in the Agreement (in case of asuccessful Tender); and

f) A copy of the joint venture agreement entered into by allpartner shall be submitted with the Tender. Alternatively,a Letter of Intent to execute a joint venture agreement inthe event of a successful Tender shall be signed by allpartners and submitted with the Tender, together with acopy of the proposed Agreement.

g) The Tender Security and Tender Securing Declaration asstated in accordance with ITT Clause 19, and in case of asuccessful Tender, the Agreement, shall be signed so as tobe legally binding on all partners.

14. Lots Package 14.1 When Tendering for more than one contract under the lotsarrangements, the Tenderer must provide evidence that itmeets or exceeds the sum of all the individual requirementsfor the lots being tendered in regard to:

a) Average annual turnover;b) Particular experience including key production rates;c) Financial means, etc;d) Personnel capabilities; ande) Equipment capabilities.

14.2 In case the Tenderer fail to fully meet any of these criteria, itmay be qualified only for those lots for which the Tenderermeets the above requirement.

15. Form of Tender 15.1 The Tenderer shall fill the Form of Tender furnished in theTendering Documents. The Form of Tender must becompleted without any alterations to its format and nosubstitute shall be accepted.

16. Tender Prices 16.1 The Contract shall be for the whole Works, as described insub-Clause 1.1, based on the priced Bill of Quantitiessubmitted by the Tenderer.

16.2 The Tenderer shall fill in rates and prices for all items of theWorks described in the Bill of Quantities. Items for which norate or price is entered by the Tenderer will not be paid for by

the Procuring Entity when executed and shall be deemedcovered by the other rates and prices in the Bill of quantities.

16.3 All duties, taxes and other levies payable by the Contractorunder the Contract, or for any other cause, as of the date 15days prior to the deadline for submission of Tenders, shall beincluded in the rates, prices and total Tender price submittedby the Tenderer.

16.4 The rates and prices quoted by the Tenderer shall be subject toadjustment during the performance of the Contract if providedfor in the Tender Data Sheet and the provisions of theConditions of Contract. The Tenderer shall submit with theTender all the information required under the Contract DataSheet.

17. Tender Currencies 17.1 The unit rates and prices shall be quoted by the Tenderer inthe currency as specified in the Tender Data Sheet.

17.2 Tenderers shall indicate details of their expected foreigncurrency requirements in the Tender, if any. The rates ofexchange to be used by the Tenderers in arriving at the localcurrency equivalent shall be the selling rates for similartransactions established by the authority specified in theTender Data Sheet prevailing on the date 28 days prior to thelatest deadline for submission of Tenders. These exchangerates shall apply for all payments so that no exchange risk willbe borne by the Tenderer. In any case, payments will becomputed using the rates quoted in the Tender.

17.3 Tenderers may be required by the Procuring Entity to clarifytheir foreign currency requirements and to substantiate that theamounts included in the rates and prices and in the ContractData Sheet are reasonable and responsive to sub-Clause 17.1.

18. Tender ValidityPeriod

18.1 Tenders shall remain valid for the period specified in theTender Data Sheet after the Tender submission deadlineprescribed by the Procuring Entity, pursuant to ITT Clause 22.A Tender valid for a shorter period shall be rejected by theProcuring Entity as non-responsive.

18.2 In exceptional circumstances, prior to expiry of the originalTender validity period, the Procuring Entity may request thatthe Tenderers extend the period of validity for a specifiedadditional period. The request and the Tenderers' responsesshall be made in writing or by cable. A Tenderer may refusethe request without forfeiting its Tender Security or causing tobe executed its Tender Securing declaration. A Tendereragreeing to the request will not be required or permitted tootherwise modify the Tender, but will be required to extendthe validity of its Tender Security or Tender Securingdeclaration for the period of the extension, and in compliancewith ITT Clause 19 in all respects.

18.3 In the case of fixed price contracts, if the award is delayed by

a period exceeding sixty (60) days beyond the expiry of theinitial Tender validity period, the contract price will beincreased by a factor specified in the request for extension.The Tender evaluation shall be based on the Tender pricewithout taking into consideration on the above correction.

19. Tender Securityand TenderSecuringDeclaration

19.1 Pursuant to ITT Clause 12, where required in the TenderData Sheet, the Tenderer shall furnish as part of its Tender, aTender Security in original form and in the amount andcurrency specified in the Tender Data Sheet .A Tender Securing Declaration as specified in the TenderData Sheet in the format provided in section XI shall beprovided as a mandatory requirement.

19.2 The Tender Security or Tender Securing Declaration isrequired to protect the Procuring Entity against the risk ofTenderer’s conduct which would warrant the security’sforfeiture, pursuant to ITT sub-Clause 19.9.

19.3 The Tender Security shall be denominated in the currency ofthe Tender and shall be in one of the following forms:

a) Cash;

b) A Bank Guarantee;

c) An Insurance Bond issued by an insurance firm approvedby the PPOA located in Kenya;

d) An irrevocable letter of credit issued by a reputable bank.

19.4 The Tender Security shall be in accordance with the Form ofthe Tender Security included in Section XI or another formapproved by the Procuring Entity prior to the Tendersubmission.

19.5 The Tender Security shall be payable promptly upon writtendemand by the Procuring Entity in case any of the conditionslisted in sub-Clause 19.8 are invoked.

19.6 Any Tender not accompanied by a Tender Security inaccordance with sub-Clauses 19.1 or 19.3 shall be rejected bythe Procuring Entity as non-responsive, pursuant to ITTClause 28.

19.7 The Procuring Entity shall immediately release any TenderSecurity if:

a) The procuring proceedings are terminated;

b) The Procuring Entity determines that none of the submittedTenders is responsive;

c) A contract for the procurement is entered into.

19.8 The Tender Security shall be forfeited and the TenderSecuring Declaration executed if the Tenderer:

a) Withdraws its Tender after the deadline for submittingTenders but before the expiry of the period during whichTenders must remain valid;

b) Rejects a correction of an arithmetic error pursuant to sub-Clause 29.2;

c) Refuse to enter into a written contract in accordance withITT Clause 40;

d) Fails to furnish the Performance Security in accordancewith ITT Clause 41.

19.9 The Tender Security and Tender Securing Declaration of ajoint venture must be in the name of the joint venturesubmitting the Tender.

19.10 A Tenderer shall be suspended from being eligible forTendering in any contract with the Procuring Entity for theperiod of time indicated in the Tender Securing Declaration:

a) If the Tenderer withdraws its Tender, except as provided inITT sub-Clauses 18.2 and 29.2; or

b) In the case of a successful Tenderer, if the Tenderer failswithin the specified time limit to:

(i) Sign the contract; or

(ii) Furnish the required Performance Security.

20. Format andSigning of Tender

20.1 The Tenderer shall prepare one original of the documentscomprising the Tender as described in ITT Clause 12 of theseInstructions to Tenderers, with the Form of Tender, andclearly marked “ORIGINAL”. In addition, the Tenderershall submit copies of the Tender, in the number specified inthe Tender Data Sheet, and clearly marked as “COPIES”. Inthe event of discrepancy between them, the original shallprevail.

20.2 The original and all copies of the Tenders shall be typed orwritten in indelible ink and shall be signed by a person orpersons duly authorized to sign on behalf of the Tenderer.This authorization shall consist of a written confirmation asspecified in the Tender Data Sheet and shall be attached tothe Tender. The name and position held by each personsigning the authorization must be typed or printed below thesignature. All pages of the Tender, except for un-amendedprinted literature, shall be initialled by the person or personssigning the Tender.

20.3 Any interlineations, erasures, or overwriting shall be valid

only if they are initialled by the person or persons signing theTender.

20.4 The Tenderer shall furnish information as described in theForm of Tender on commissions or gratuities, if any, paid orto be paid to agents relating to this Tender and to contractexecution if the Tenderer is awarded the contract

D. Submission of Tenders

21. Sealing andMarking ofTenders

21.1 The Tenderer shall seal the original and each copy of theTender in separate envelopes, duly marking the envelopes as“ORIGINAL” and “COPY”. The envelopes shall then besealed in an outer envelope securely sealed in such a mannerthat opening and resealing cannot be achieved undetected.

21.2 The inner and outer envelopes shall:

a) Be addressed to the Procuring Entity at the address givenin the Tender Data Sheet; and

b) Bear the Project name indicated in the Tender DataSheet, the Invitation for Tenders (IFB) title and numberindicated in the Tender Data Sheet, and a statement:“DO NOT OPEN BEFORE,” to be completed with thetime and the date specified in the Tender Data Sheet,pursuant to ITT sub-Clause 22.1.

21.3 In addition to the identification required in sub-Clause 21.2,the inner envelopes shall also indicate the name and addressof the Tenderer to enable the Tender be returned unopened incase it is declared late, pursuant to sub-Clause 22.1 and formatching purpose under ITT Clause 23

21.4 If the outer envelope is not sealed and marked as required byITT sub clause 21.2, the Procuring Entity shall assume noresponsibility for misplacement or premature opening of theTender.

22. Deadline forSubmission ofTenders

22.1 Tenders shall be received by the Procuring Entity at theaddress specified under ITT sub-Clause 21.2 no later than thedate and time specified in the Tender Data Sheet.

22.2 The Procuring Entity may, in exceptional circumstances andat its discretion, extend the deadline for the submission ofTenders by amending the Tendering documents in accordancewith ITT Clause 9, in which case all rights and obligations ofthe Procuring Entity and Tenderers previously subject to thedeadline will thereafter be subject to the new deadline.

22.3 The extension of the deadline for submission of Tenders shallnot be made later than the period specified in the TenderData Sheet before the expiry of the original deadline.

23. Late Tenders 23.1 The Procuring Entity shall not consider for evaluation anyTender that arrives after the deadline for submission ofTenders, in accordance with ITT Clause 22.

23.2 Any Tender received by the Procuring Entity after thedeadline for submission of Tenders shall be declared late,rejected and returned unopened to the Tenderer

24. Modification,Substitution andWithdrawal ofTenders

24.1 A Tenderer may modify or substitute or withdraw its Tenderafter it has been submitted, provided that written notice of themodification, including substitution or withdrawal of theTender, is received by the Procuring Entity prior to thedeadline prescribed for submission of Tenders prescribedunder ITT sub-Clause 22.1.

24.2 The Tenderer’s modification or substitution or withdrawalnotice shall be prepared, sealed, marked, and dispatched inaccordance with the provisions of ITT Clauses 20 and 21 withthe outer and inner envelopes additionally marked“MODIFICATION” or SUBSTITUTION or“WITHDRAWAL” as appropriate. The notice may also besent by electronic mail and facsimile, but followed by asigned confirmation copy, postmarked not later than thedeadline for submission of Tenders.

24.3 No Tender may be withdrawn, replaced or modified in theinterval between the deadline for submission of Tenders andthe expiration of the period of Tender validity specified bythe Tenderer on the Tender Form. Withdrawal of a Tenderduring this interval shall result in the Tenderer’s forfeiture ofits Tender Security or execution of Tender SecuringDeclaration, pursuant to the ITT sub-Clause 19.9.

24.4 Withdrawal of a Tender between the deadline for submissionof Tenders and the expiration of the period of Tender validityspecified in the Tender Data Sheet or as extended pursuantto sub-Clause 22.2 shall result in the forfeiture of the TenderSecurity and execution of Tender Securing Declarationpursuant to ITT sub-Clause 19.9.

24.5 Tenderers may only offer discounts to, or otherwise modifythe prices of their Tenders by submitting Tendermodifications in accordance with this Clause, or included inthe original Tender submission.

E. Opening and Evaluation of Tenders

25. Opening ofTenders

25.1 The Procuring Entity will open all Tenders includingmodifications, substitution or withdraw notices made pursuantto ITT Clause 24, in public, in the presence of Tenderers or

their representatives who choose to attend and other partieswith legitimate interest and Tender proceedings, at the place onthe date and at time specified in the Tender Data Sheet. TheTenderers’ representatives who are present shall sign a registeras proof of their attendance.

25.2 Envelopes marked “WITHDRAWAL” shall be opened andread out first. Tenders for which an acceptable notice ofwithdrawal has been submitted pursuant to ITT Clause 24 shallnot be opened but returned to the Tenderer. If the withdrawalenvelope does not contain a copy of the “Power of Attorney”confirming the signature as a person duly authorized to sign onbehalf of the Tenderer, the corresponding Tender will beopened. Subsequently, all envelopes marked"MODIFICATION" shall be opened and the submissionstherein read out in appropriate detail. Thereafter all envelopesmarked or "SUBSTITUTION" opened and the submissionstherein read out in appropriate detail.

25.3 All other envelopes shall be opened one at a time. TheTenderers' names, the Tender prices, the total amount of eachTender and of any alternative Tender (if alternatives have beenrequested or permitted), any discounts, the presence or absenceof Tender security, and such other details as the appropriatetender opening committee may consider appropriate, will beannounced by the Secretary of the Tender Opening Committeeat the opening.

25.4 Tenders or modifications that are not opened and not read out atTender opening shall not be considered further for evaluation,irrespective of the circumstances. In particular, any discountoffered by a Tenderer which is not read out at Tender openingshall not be considered further.

25.5 Tenderers are advised to send in a representative with theknowledge of the content of the Tender who shall verify theinformation read out from the submitted documents. Failure tosend a representative or to point out any un-read information bythe sent Tenderer’s representative shall indemnify the ProcuringEntity against any claim or failure to read out the correctinformation contained in the Tenderer’s Tender.

25.6 No Tender will be rejected at Tender opening except for lateTenders which will be returned unopened to the Tenderer,pursuant to ITT Clause 23.

25.7 The Secretary of the appropriate tender opening committeeshall prepare minutes of the Tender opening. The record of theTender opening shall include, as a minimum: the name of theTenderers and whether or not there is a withdrawal, substitutionor modification, the Tender price per Lot if applicable,including any discounts and alternative offers and the presenceor absence of a Tender Security or Tender SecuringDeclaration.

25.8 The Tenderers’ representatives who are present shall berequested to sign the record. The omission of a Tenderer’ssignature on the record shall not invalidate the contents andaffect the record.

25.9 A copy of the minutes of the Tender opening shall be furnishedto individual Tenderers upon request.

26. Confidentiality 26.1 Information relating to the examination, clarification,evaluation, and comparison of Tenders and recommendationsfor the award of a Contract shall not be disclosed to Tenderersor any other persons not officially concerned with such processuntil the award to the successful Tenderer has been announced.

26.2 Any effort by a Tenderer to influence the Procuring Entity’sprocessing of Tenders or award decisions may result in therejection of his Tender.

26.3 Notwithstanding sub-Clause 26.2, from the time of Tenderopening to the time of Contract award, if any Tenderer wishesto contact the Procuring Entity on any matter related to theTendering process, it should do so in writing.

27. Clarification ofTenders

27.1 To assist in the examination, evaluation, comparison of Tendersand post-qualification of the Tenderer, the Procuring Entitymay, at its discretion, ask a Tenderer for clarification of itsTender including breakdown of prices. Any clarificationsubmitted by a Tenderer that is not in response to a request bythe Procuring Entity shall not be considered.

27.2 The request for clarification and the response shall be inwriting. No change in the prices or substance of the Tendershall be sought, offered, or permitted except to confirm thecorrection of arithmetic errors discovered by the ProcuringEntity in the evaluation of Tenders in accordance with ITTClause 29.

27.3 From the time of Tender opening to the time of Contract awardif any Tenderer wishes to contact the Procuring Entity on anymatter related to the Tender it should do so in writing.

28. PreliminaryExamination ofTenders

28.1 Prior to the detailed evaluation of Tenders, the Procuring Entitywill determine whether:

a) The Tender has been submitted in the required format;

b) Any Tender Security submitted is in the required form,amount and validity period;

c) The Tender has been signed by the person lawfullyauthorized to do so;

d) The required number of copies of the Tender have beensubmitted;

e) The Tender is valid for the period required;

f) All required documents and information have beensubmitted; and

g) Any required samples have been submitted.

28.2 The Procuring Entity will confirm that the documents andinformation specified under ITT Clause 12 and ITT Clause 13have been provided in the Tender. If any of these documents orinformation is missing, or is not provided in accordance withthe Instructions to Tenderers, the Tender shall be rejected.

28.3 The Procuring Entity may waive any minor informality,nonconformity, or irregularity in a Tender which does notconstitute a material deviation, provided such waiver does notprejudice or affect the relative ranking of any Tenderer

28.4 A substantially responsive Tender is one which conforms to allthe terms, conditions, and specifications of the Tenderingdocuments, without material deviation or reservation. Amaterial deviation or reservation is one that:

a) Affects in any substantial way the scope, quality, orexecution of the Works;

b) Limits in any substantial way, inconsistent with theTendering documents, the Procuring Entity's rights or theTenderer’s obligations under the Contract; or

c) If rectified, would affect unfairly the competitive position ofother Tenderers presenting substantially responsive Tenders.

28.5 If a Tender is not substantially responsive, it will be rejected bythe Procuring Entity, and may not subsequently be maderesponsive by correction or withdrawal of the non-conformingdeviation or reservation.

29. Correction ofErrors

29.1 Tenders determined to be substantially responsive will bechecked by the Procuring Entity for any arithmetic errors.Errors will be corrected by the Procuring Entity as follows:

a) If there is a discrepancy between unit prices and the totalprice that is obtained by multiplying the unit price andquantity, the unit price shall prevail, and the total price shallbe corrected, unless in the opinion of the Procuring Entitythere is an obvious misplacement of the decimal point in theunit price, in which the total price as quoted shall governand the unit price shall be corrected;

b) If there is an error in a total corresponding to the addition orsubtraction of subtotals, the subtotals shall prevail and thetotal shall be corrected; and

c) Where there is a discrepancy between the amounts in figures

and in words, the amount in words will govern.

29.2 The amount stated in the Tender will, be adjusted by theProcuring Entity in accordance with the above procedure for thecorrection of errors and, with, the concurrence of the Tenderer,shall be considered as binding upon the Tenderer. If theTenderer does not accept the corrected amount, its Tender willthen be rejected, and the Tender Security may be forfeited andthe Tender Securing Declaration may be executed inaccordance with sub-Clause 19.9.

30. Conversion toSingle Currency

30.1 To facilitate the evaluation and comparison, the ProcuringEntity will convert all Tender prices expressed in the amountsin various currencies in which the Tender prices are payabletoKenya Shillings at the selling exchange rate established forsimilar transactions by the Central Bank of Kenya ruling on thedate specified in the Tender Data Sheet.

31. Comparison ofTenders

31.1 The Procuring Entity shall evaluate and compare only theTenders determined to be substantially responsive inaccordance with ITT Clause 28.

31.2 In evaluating the Tenders, the Procuring Entity will determinefor each Tender the evaluated Tender price by adjusting theTender price as follows:Making any correction for errors pursuant to ITT Clause 29;Excluding provisional sums and the provision, if any forcontingencies in the Bill of Quantities, but including Day work, where priced competitively ; andMaking appropriate adjustments to reflect discounts or otherprice modifications offered in accordance with sub-Clause 24.5.

31.3 The Procuring Entity may waive any minor informality or non-conformity, which does not constitute a material deviation,provided such waiver does not prejudice or affect the relativestanding of any Tenderer. Variations, deviations, andalternative offers and other factors, which are in excess of therequirements of the Tendering documents or otherwise result inunsolicited benefits for the Procuring Entity will not be takeninto account in Tender evaluation.

32. NationalPreference

32.1 In the evaluation of Tenders the Procuring Entity shall applyexclusive preference to citizens of Kenya where:

a) The funding is 100% from the Government of Kenya or aKenyan body;

b) The amounts are below the prescribed threshold ofKShs.200 million;

32.2 To qualify for the preference the candidate shall provideevidence of eligibility by:

a) Proving Kenyan citizenship by production of a KenyanIdentity Card; or

b) Providing proof of being a “citizen contractor” in terms ofsection 3(1) of the Act, i.e. being a natural person or anincorporated company wholly owned and controlled bypersons who are citizens of Kenya.

32.3 The Minister of Finance may prescribe additional preferenceand/or reservation schemes, for example for procurementsabove these thresholds. If such additional preference schemesapply, details will be given in the Tender Data Sheet.

33. Determination ofthe LowestEvaluated Tender

33.1 The Tender with the lowest evaluated price from among thosewhich are eligible, compliant and substantially responsive shallbe the lowest evaluated Tender.

34. Post-qualificationof Tenderer

34.1 If specified in the Tender Data Sheet, post-qualification shallbe undertaken.

34.2 The Procuring Entity will determine to its satisfaction whetherthe Tenderer that is selected as having submitted the lowestevaluated responsive Tender is qualified to perform the contractsatisfactorily, in accordance with the criteria listed in sub-Clause 13.3.

34.3 The determination will take into account the Tenderer’sfinancial, technical, and production capabilities. It will bebased upon an examination of the documentary evidence of theTenderer’s qualifications submitted by the Tenderer, pursuantto sub-Clause 13.3, as well as such other information as theProcuring Entity deems necessary and appropriate. Factors notincluded in these Tendering documents shall not be used in theevaluation of the Tenderer’s qualifications.

34.4 An affirmative determination will be a prerequisite for award ofthe contract to the Tenderer. A negative determination willresult in rejection of the Tenderer’s Tender, in which event theProcuring Entity will proceed to the next lowest evaluatedTender to make a similar determination of that Tenderer’scapabilities to perform satisfactorily.

F. Award of Contract

35. Criteria of Award 35.1 Subject to ITT Clause 35 and 36, the Procuring Entitywill award the Contract to the Tenderer whose Tenderhas been determined to be substantially responsive tothe Tendering documents and who has offered thelowest Evaluated Tender Price, provided that suchTenderer has been determined to be:

a) Eligible in accordance with the provisions of ITTClause 3;

b) Is determined to be qualified to perform theContract satisfactorily;

c) Successful negotiations have been concluded.

35.2 If, pursuant to sub-Clause 14.1, this Contract is beingawarded on a “lot and package” basis, the lowestevaluated Tender price will be determined whenevaluating this Contract in conjunction with otherContracts to be awarded concurrently, taking intoaccount any discounts offered by the Tenderer foraward of more than one Contract.

36. Clarifications 36.1 Clarifications may be undertaken with the lowestevaluated Tenderer relating to the following areas:

a) A minor alteration to the technical details of thestatement of requirements;

b) Reduction of quantities for budgetary reasons,where the reduction is in excess of any providedfor in the Tendering documents;

c) A minor amendment to the Contract Data Sheet;

d) Finalizing payment arrangements;

e) Mobilization arrangements;

f) Agreeing final delivery or work schedule toaccommodate any changes required by theProcuring Entity;

g) The methodology or staffing; or

h) Clarifying details that were not apparent or couldnot be finalized at the time of Tendering.

36.2 Clarifications shall not change the substance of thetender.

37. Procuring Entity’s Rightto Accept any Tender andto Reject any or allTenders

37.1 Notwithstanding ITT Clause 35, the Procuring Entityreserves the right to accept or reject any Tender, andto cancel the Tendering process and reject allTenders, at any time prior to the award of Contract,without thereby incurring any liability to the affectedTenderer or Tenderers.

37.2 Notice of the rejection of all Tenders shall be givenpromptly within 14 days to all Contractors that havesubmitted Tenders.

37.3 The Procuring Entity shall upon request communicateto any Tenderer the grounds for its rejection of itsTenders, but is not required to justify those grounds.

38. Procuring Entities Right 38.1 The Procuring Entity reserves the right at the time of

to Vary Quantities at theTime of Award

contract award to increase or decrease the quantity ofgoods or related services originally specified in theseTendering documents (schedule of requirements)provided this does not exceed by the percentageindicated in the Tender Data Sheet, without anychange in unit price or other terms and conditions ofthe Tender and Tendering documents.

39. Notification of Award 39.1 The Tenderer whose Tender has been accepted will benotified of the award by the Procuring Entity prior toexpiration of the Tender validity period by e-mail orfacsimile confirmed by registered letter. This letter(hereinafter and in the Conditions of Contract calledthe "Letter of Acceptance") will state the sum that theProcuring Entity will pay the Contractor inconsideration of the provision and maintenance of theWork(s) as prescribed by the Contract (hereinafterand in the Contract called the “Contract Price”).

39.2 The notification of award will constitute theformation of the Contract, subject to the Tendererfurnishing the Performance Security in accordancewith ITT Clause 41 and signing the Contract inaccordance with sub-Clause 40.2

39.3 At the same time as the person submitting thesuccessful Tender is notified, the Procuring Entitywill notify each unsuccessful Tenderer, the name ofthe successful Tenderer and the Contract amount andwill discharge the Tender Security and TenderSecuring Declaration of the Tenderer pursuant to ITTsub Clause 19.7.

39.4 If, after notification of award, a Tenderer wishes toascertain the grounds on which it’s Tender orapplication for pre-qualification was unsuccessful, itshould address its request to the secretary of theTender Committee that authorized the award ofcontract. The secretary of the Tender Committeeshall, within fourteen days after a request, providewritten reasons as to why the Tender, proposal orapplication to be pre-qualified was unsuccessful.However, failure to take this opportunity to clarify thegrounds for rejection does not affect the Tenderer’sright to seek immediate review by the PublicProcurement Administrative Review Board underClause 45.

40. Signing of Contract 40.1 Promptly, and in no case later than 14 days, afternotification, Procuring Entity shall send thesuccessful Tenderer the Agreement and Contract DataSheet, incorporating all agreements between theparties obtained as a result of Contract negotiations.

40.2 Within the period specified in the notification or

Tender Data Sheet but not earlier than fourteen (14)days since notification of award of contract, thesuccessful Tenderer shall sign and date the contractand return it to the Procuring Entity.

41. Performance Security 41.1 Within thirty (30) days but after 14 days after receiptof the Letter of Acceptance, the successful Tenderershall deliver to the Procuring Entity a PerformanceSecurity in the amount and in the form stipulated inthe Tender Data Sheet and the Contract Data Sheet,denominated in the type and proportions of currenciesin the Letter of Acceptance and in accordance with theConditions of Contract.

41.2 If the Performance Security is provided by thesuccessful Tenderer in the form of a Bank Guaranteeor Insurance Bond, it shall be issued either:

a) At the Tenderer’s option, by a bank or insurancefirm located in Kenya, or a foreign bank orinsurance firm through a correspondent bank orinsurance firm located in Kenya;

b) With the consent of the Procuring entity, directlyby a foreign bank acceptable to the Procuringentity.

41.3 Failure of the successful Tenderer to comply with therequirement of sub-Clause 41.1 shall constitutesufficient grounds for the annulment of the award andforfeiture of the Tender Security, in which event theProcuring Entity may make the award to the nextlowest evaluated Tenderer or call for new Tenders.

42. Advance Payment 42.1 The Procuring Entity will provide an AdvancePayment as stipulated in the Conditions of Contract,subject to a maximum amount, as stated in the TenderData Sheet.

42.2 The Advance Payment request shall be accompaniedby an Advance Payment Security (Guarantee) in theform provided in Section XI. For the purpose ofreceiving the Advance Payment, the Tenderer shallmake an estimate of, and include in its Tender, theexpenses that will be incurred in order to commencework. These expenses will relate to the purchase ofequipment, machinery, materials, and on theengagement of labour during the first month beginningwith the date of the Procuring Entity’s “Notice toCommence” as specified in the Contract Data Sheet.

43. Adjudicator 43.1 The Procuring Entity proposes the person named inthe Tender Data Sheet to be appointed as Adjudicatorunder the Contract, at an hourly fee specified in theTender Data Sheet, plus reimbursable expenses. If the

Tenderer disagrees with this proposal, the Tenderershould so state in the Tender. If, in the Letter ofAcceptance, the Procuring Entity has not agreed onthe appointment of the Adjudicator, the Adjudicatorshall be appointed by the Appointing Authoritydesignated in the Contract Data Sheet at the request ofeither party.

G. Review of Procurement Decisions

44. Right to Review 44.1 A Tenderer who claims to have suffered or risk suffering,loss or damage or injury as a result of breach of a dutyimposed on a Procuring Entity or an Approving Authorityby the Public Procurement and Disposal Act, 2005 and thePublic Procurement and Disposal Regulations 2006, theprocurement proceedings or processes, may seekadministrative review as prescribed by the Act. Thefollowing matters, however, shall not be subject to theadministrative review:

a) The choice of procurement method;

b) a decision by the Procuring Entity to reject all Tenders,proposals or quotations;

c) Where a contract is signed in accordance to Section 68 ofthe Public Procurement and Disposal Act,2005;

d) Where an appeal is frivolous.

45. Time Limit onReview

45.1 The Tenderer shall submit an application for review in thenumber of copies and pay fees as prescribed by the PublicProcurement and Disposal Regulations 2006 within fourteen(14) days of the time the Tenderer became or should havebecome aware of the circumstances giving rise to thecomplaint or dispute.

46. Submission ofApplications forReview by the PublicProcurementAdministrativeReview Board

46.1 Any application for administrative review shall be submittedin writing to the Secretary, Public ProcurementAdministrative Review Board on Form RB 1 at the addressshown in the Tender Data Sheet. The secretary to the reviewboard shall immediately after filing of the request, serve acopy thereof on the Procuring Entity or Director-General asthe case may be.

46.2 The application for administrative review shall be inaccordance with the requirements of Regulation 73 of thePublic Procurement and Disposals Regulations,2006,including:

a) Reasons for the complaint, including any alleged breachof the Act or Regulations;

b) An explanation of how the provisions of the Act and orRegulation has been breached or omitted, including the

dates and name of the responsible public officer, whereknown;

c) Statements or other evidence supporting the complaintwhere available as the applicant considers necessary insupport of its request;

d) Remedies sought;

e) Any other information relevant to the complaint.

47. Decision by the PublicProcurementAdministrativeReview Board

47.1 The Administrative Review Board shall within thirty daysafter receipt of an application for administrative reviewdeliver a written decision which shall indicate:

a) Annulling anything the Procuring Entity has done in theprocurement proceedings, including annulling theprocurement proceedings in their entirety;

b) Giving directions to the Procuring Entity with respect toanything to be done or redone in the procurementproceedings;

c) Substituting the decision of the Review Board for anydecision of the Procuring Entity in the procurementproceedings;

d) Order the payment of costs as between parties to thereview.

47.2 The decision made by the Review Board shall, be final andbinding on the parties unless judicial review thereofcommences within fourteen (14) days from the date of theReview Board’s decision.

48. Appeal on thedecision of the ReviewBoard

48.1 Any party to the review aggrieved by the decision of theReview Board may appeal to the High Court and thedecision of the High Court shall be final.

SECTION III: TENDER DATA SHEET

Tender Data Sheet (TDS)

Instructions to Tenderers Clause Reference

TDSReferenceNumber

ITTClauseNumber

Amendments of, and Supplements to, Clauses in the Instructionto Tenderers

A. Introduction

1. The Procuring Entity is Action Africa Help International (AAHI)

2. Name of Project isEnhancing livelihood through water and sanitation project

3. 1.2 The expected completion time of the works is Four weeks (4Weeks)from the date of signing the contract

4. 1.3 The Objectives of the works are:

Improved water and sanitation access to both refugees andhoist community.

Increased income among the livestock and crop farmers Improved environmental protection and conservation

through the natural resource management and planting treesusing the water

Employment creation through labour that is related to waterand sanitation.

Peaceful co-existence amongst the refugees and hostand the neighboring countries of Ethiopia and Uganda.

5. 2.1 Name of financing institution is THE WATER SECTOR TRUSTFUND)

Name of the Procuring Entity is ACTION AFRICA HELPINTERNATIONAL

Financial Year: 2019/2020

Description of works under the contracts:

Construction of the bio digester latrines in Lopur primary- 2 No 4 door bio digester latrine Nijawoi – 2 No 4 door bio digester latrine Nammon. – 2 No. 4 door bio digester latrine

6. 3.1 Eligibility requirements as provided in the Public Procurement andAssets disposal Act 2015:

a) Bidder to provide self-declaration that the person/tenderer isnot debarred in the matter of the Public Procurement andAsset Disposal Act 2015 (As per section 62 of the Act)

b) Bidder to provide self-declaration that the person/tenderer

will not engage in any corrupt or fraudulent practice

c) Audited Financial Accounts for the last three years: (2019 –2020)

d) Certified Copy of Certificate of Incorporation/Registration

e) Certified Copy of Current Tax Compliance certificate fromKenya Revenue Authority

f) Certified Copy of Valid and current Business Permit

g) Disclosure of business ownership (Directors/ Partners /SoleProprietor). Attach a copy of CR12 Form

h) Certified copy of National Construction Authority (NCA)registration Certificate for at least Class 7 and above whichmust be in Water Works.

7. 5.1 Alternative Tenders are NOT ALLOWEDin this Tender.

8. 5.2 Alternative time for completion NOT APPLICABLE

9.

7.3

Site Visit shall be held onDate: 05th March 2020Time: 9.00amAssembly point: AAHI Main Office (Kakuma Town, NCCKCompound) & leave for Lopur Ward. Interested bidders should caterfor pre-site visit logistics.A Site visit certificate shall be issued to present tenderers

10. 7.5 Not applicable

B. Tendering Documents

11. 8.2 The number of copies to be completed and returned with the Tender isTWO

12. 9.1 Address for clarification of Tendering Document is:

EMAIL: [email protected]

13. 9.2 Period to Respond to request for clarification by the Action AfricaHelp International :2 (Two) DAYS

Period Prior to deadline for submission of Tenders for Tenderers torequest clarification 9(Nine) DAYS

C. Preparation of Tenders

14. 11.1 Language of Tender and all correspondence shall be ENGLISH

15. 13.3 Other information or materials required to be completed and submitted byTenderers:

a) Copies of original documents defining the constitution or legal status,place of registration, and principal, place of business; written powerof attorney authorizing the signatory of the Tender to commit theTenderer.

b) The minimum required annual volume of construction of biodigesterpit latrines for the successful Tenderer in any of the last 2 years shallbe: Kenya Shillings four Million, (KES.5, 000,000).

c) Experience as prime contractor in the construction of at least oneproject of a nature and complexity equivalent to the Works the last 2years or the period stated in a) above (to comply with thisrequirement, works cited should be at least 70 percent complete).

d) Essential equipment to be made available for the Contract by thesuccessful Tenderer (proposals for timely acquisition or own, lease,hire, etc):

e) A Site Agent with a minimum of 5(FIVE) years’ experience in worksof an equivalent nature and volume.

f) Evidence of adequate working capital for this contract.16. 13.4 In the case of joint venture each partner shall submit information required

under Clause ITT Clause 13.4. In addition, the Tenderer shall furnish thefollowing,

a) ASSET OWNERSHIP OF EACH PARTNERb) STAFF CONTRIBUTION FROM EACH PARTNER

17. 16.4 The price shall be FIXEDInformation to be submitted with the Tender are: NONE

18. 17.1 The currency in which the prices shall be quoted shall be KENYASHILLING

19. 18.1 The Tender validity period shall be ONE HUNDRED AND TWENTY(120) days.

20. 19.1 The amount of Tender Security shall be 10% of the contract value. Inform of a banker’s cheque or bank guarantee from a reputable bank.

21. 20.1 In addition to the original of the Tender, the Tenderer should submit 1(ONE) copy of the Tender.

D. Submission of Tenders22. 21.2 a) Tenders shall be submitted to:

KAKUMA OFFICE LOCATED IN NCCK COMPOUND 3,KAKUMA TOWN

26. 21.2 b) Project name: Enhancing livelihood through water and sanitationprojectTender number: 1163/KKM/RFP/01/2020Time and date for submission: 11th March, 2020 at 10.00am

27. 22.1 The deadline for Tender submission isa) Day ……Wednesday

b) Date……11th March, 2020c) Time….. 10.00am

28. 22.3 The extension of the deadline for submission of Tenders shall be made notlater than SEVEN (7) DAYS before the expiry of the original deadline.

29 24.4 Expiry of Tender validity is 120 DAYS FROM DATE OF OPENING.

E. Opening and Evaluation of Tenders

30. 25.1 The Tender opening shall take place at: AAHI CONFERENCE ROOMIN KAKUMA.Street address NCCK COMPOUND 3

City/Town KAKUMA

Country KENYADate 12th March, 2020 Time: 10.00am

31 29.1 Correction of errors NOT allowed and prices shall be used as quoted.32 30.1 Conversion of currency shall NOT be applied33. 32.3 Additional Preference NONE

34 33.1 Detailed evaluation criteria is in section IX of this document.35. 34.1 Post- qualification will BE UNDERTAKEN to validate information

provided on responsiveness requirements and result shall be documented.Any contrary findings during post-qualification will lead todisqualification of the tenderer.

36. 38.1 Percentage for quantities increase or decrease is not applicable.

F. Award of Contract

33. 41.1 The amount of Performance Security shall be [10% of the contract price]

34. 42.1 The Advance Payment shall be ZERO (0) percent of the Contract Price.

35. 43.1 The proposed adjudicator for the project is:Water Services Trust Fund.

G. Review of Procurement Decisions

SECTION IV: GENERAL CONDITIONS OF CONTRACT

Table of ClausesA. General…………………………………………………………………… 39

1. Definitions………………………………………………………………… .......... 392. Interpretation……………………………………………………………… .......... 403. Language, Law, Fraud and Corruption………………………………………… .. 414. Confidentiality……………………………………………………………............ 435. Project Manager’s Decisions……………………………………………….......... 436. Delegation………………………………………………………………… .......... 437. Communications…………………………………………………………............. 438. Subcontracting……………………………………………………………. ............. 439. Other Contractors………………………………………………………… .............. 4310. Personnel…………………………………………………………………. .............. 4311. Procuring Entity’s and Contractor’s Risks…………………………..................... 4412. Procuring Entity’s Risks………………………………………………… ........... 4413. Contractor’s Risks………………………………………………………… .......... 4414. Insurance………………………………………………………………..... ........... 4515. Site Investigation Reports………………………………………………… .......... 4516. Queries about the Contract Data Sheet……………………………………........... 4517. Contractor to Construct the Works………………………………………............. 4518. Commence-ment and Completion………………………………………............. 4519. Approval by the Project Manager………………………………………… .......... 4520. Protection of the Environment……………………………………………. .......... 4621. Labour Laws………………………………………………………………........... 4622. Health and Safety………………………………………………………… ........... 4623. Discoveries……………………………………………………………….. ........... 4624. Possession of the Site…………………………………………………….. ........... 4725. Access to the Site………………………………………………………… ........... 4726. Instructions, Inspections and Audits…………………………………….. ............ 4727. Disputes………………………………………………………………….. ............ 4728. Procedure for Disputes…………………………………………………… ........... 4729. Replacement of Adjudicator……………………………………………............... 47

B. Time Control………………………………………………………………… 4830. Programme……………………………………………………………….. ........... 4831. Extension of the Intended Completion Date……………………………... ........... 4832. Acceleration………………………………………………………………............ 4833. Delays Ordered by the Project Manager…………………………………. ........... 4834. Management Meetings…………………………………………………… ........... 4935. Early Warning……………………………………………………………. ........... 49

C. Quality Control…………………………………………………………. 4936. Identifying Defects………………………………………………………................ 4937. Tests……………………………………………………………………… ........... 4938. Correction of Defects……………………………………………………. ............ 4939. Uncorrected Defects…………………………………………………….. ............. 50

D. Cost Control………………………………………………………………… 5040. Bill of Quantities………………………………………………………… ............ 5041. Changes in the Quantities………………………………………………............... 5042. Variations……………………………………………………………….. ............. 5043. Payments for Variations………………………………………………… ............. 5044. Cash Flow Forecasts……………………………………………………............... 5145. Payment Certificates……………………………………………………. ............. 51

46. Payments………………………………………………………………… ............ 5147. Compensation Events……………………………………………………................ 5248. Taxes……………………………………………………………………. ............. 5349. Currencies………………………………………………………………............... 5350. PriceAdjustment…………………………………………………………................ 5351. Retention………………………………………………………………… ............ 5552. Liquidated Damages……………………………………………………............... 5653. Bonus…………………………………………………………………….............. 5654. Advance Payment………………………………………………………............... 5655. Performance Securities…………………………………………………............... 5756. Dayworks……………………………………………………………….. ...... Error!Bookmark not defined.57. Cost of Repairs………………………………………………………….. ............. 57

E. Finishing the Contract………………………………………………… 5758. Completion Certificate………………………………………………….. ................ 5759. Taking Over………………………………………………………………............ 5760. Final Account…………………………………………………………… ............. 5761. Operating and Maintenance Manuals……………………………………............. 5862. Termination……………………………………………………………… ............ 5863. Payment upon Termination……………………………………………… ............ 5964. Property…………………………………………………………………. ............. 5965. Release from Performance……………………………………………… ............. 5966. Suspension of Financing………………………………………………… ............... 60

A. General

1. Definitions 1.1 Boldface type is used to identify defined terms.

The Adjudicator is the person appointed jointly by theProcuring Entity and the Contractor to resolve disputes in thefirst instance, as provided for in Clauses 27 and 28hereunder.

Bill of Quantities means the priced and completed Bill ofQuantities forming part of the Tender.

Compensation Events are those defined in Clause 47 hereunder.

The Completion Date is the date of completion of the Works ascertified by the Project Manager, in accordance with Sub-Clause 58.1.

The Contract is the Contract between the Procuring Entity andthe Contractor to execute, complete, and maintain the Works.It consists of the documents listed in Clause 2.3 below.

The Contractor is a person or corporate body whose Tender tocarry out the Works has been accepted by the ProcuringEntity.

The Contractor’s Tender is the completed Tendering documentsubmitted by the Contractor to the Procuring Entity.

The Contract Price is the price stated in the Letter ofAcceptance and thereafter as adjusted in accordance with theprovisions of the Contract.

Days are calendar days; months are calendar months.

Dayworks are varied work inputs subject to payment on a timebasis for the Contractor’s employees and Equipment, inaddition to payments for associated Materials and Plant.

A Defect is any part of the Works not completed in accordancewith the Contract.

The Defects Liability Certificate is the certificate issued by theProject Manager upon correction of defects by theContractor.

The Defects Liability Period is the period named in theContract Data Sheet and calculated from the CompletionDate.

Drawings include calculations and other information provided orapproved by the Project Manager for the execution of theContract.

The Procuring Entity is the party who employs the Contractorto carry out the Works.

Equipment is the Contractor’s machinery and vehicles broughttemporarily to the Site to construct the Works.

The Initial Contract Price is the Contract Price listed in theProcuring Entity’s Letter of Acceptance.

The Intended Completion Date is the date on which it is

intended that the Contractor shall complete the Works. TheIntended Completion Date is specified in the Contract DataSheet. The Intended Completion Date may be revised onlyby the Project Manager by issuing an extension of time or anacceleration order.

Materials are all supplies, including consumables, used by theContractor for incorporation in the Works.

Plant is any integral part of the Works that shall have amechanical, electrical, chemical, or biological function.

The Project Manager is the person named in the Contract DataSheet (or any other competent person appointed by theProcuring Entity and notified to the Contractor, to act inreplacement of the Project Manager) who is responsible forsupervising the execution of the Works and administeringthe Contract and shall be an “Architect” or a “QuantitySurveyor” registered under the Architects and QuantitySurveyors Act Cap 525 or an “Engineer” registered underEngineers Registration Act Cap 530.

The Site is the area defined as such in the Contract Data Sheet.

Site Investigation Reports are those that were included in theTendering documents and are factual and interpretativereports about the surface and subsurface conditions at theSite.

Specification means the Specification of the Works included inthe Contract and any modification or addition made orapproved by the Project Manager.

The Start Date is given in the Contract Data Sheet. It is thelatest date when the Contractor shall commence execution ofthe Works. It does not necessarily coincide with any of theSite Possession Dates.

A Subcontractor is a person or corporate body who has aContract with the Contractor to carry out a part of the workin the Contract, which includes work on the Site.

Temporary Works are works designed, constructed, installed,and removed by the Contractor that are needed forconstruction or installation of the Works.

A Variation is an instruction given by the Project Manager thatvaries the Works.

The Works are what the Contract requires the Contractor toconstruct, install, and turn over to the Procuring Entity, asdefined in the Contract Data Sheet.

“Force Majeure” means an event which is beyond thereasonable control of a Party and which makes a Party’sperformance of its obligations under the Contract impossibleor so impractical as to be considered impossible under thecircumstances.

2. Interpretation 2.1 In interpreting these Conditions of Contract, singular alsomeans plural, male also means female or neuter, and the other

way round. Headings have no significance. Words have theirnormal meaning under the language of the Contract unlessspecifically defined. The Project Manager will provideinstructions clarifying queries about these Conditions ofContract.

2.2 If sectional completion is specified in the Contract Data Sheet,references in the Conditions of Contract to the Works, theCompletion Date, and the Intended Completion Date apply toany Section of the Works (other than references to theCompletion Date and Intended Completion Date for the wholeof the Works).

2.3 The documents forming the Contract shall be interpreted in theorder of priority given in the Contract Data Sheet:

(1) Agreement;

(2) Letter of Acceptance;

(3) Contract Data Sheet;

(4) Conditions of Contract;

(5) Technical Specifications;

(6) Contractor’s Tender;

(7) Drawings;

(8) Bill of Quantities; and

(9) Any other document listed in the Contract Data Sheet asforming part of the Contract.

3. Language, Law,Fraud andCorruption

3.1 The language of the Contract and the law governing theContract are stated in the Contract Data Sheet.

3.2 The Government requires that Procuring Entities (includingbeneficiaries of Government funded projects) as well asTenderers/Suppliers/Contractors under Government financedcontracts, observe the highest standard of ethics during theprocurement and execution of such contracts. It is theresponsibility of the Procuring Entity to ensure that Tenderers,suppliers, and contractors and their subcontractors observe thehighest standard of ethics during the procurement andexecution of such contracts. In pursuance of this policy:

For the purpose of this provision, the following definitions areprovided:

(i). “Corruption” has the meaning assigned to it in theAnti-Corruption and Economic Crime Act 2003 andincludes the offering, giving, receiving or solicitingof anything of value to influence the action of apublic official in the procurement or disposal processor in contract execution;

(ii). “Fraudulent Practice” includes a misrepresentationof fact in order to influence a procurement or

disposal process or the execution of a contract to thedetriment of the Procuring Entity and includescollusive practices amongst Tenderers prior to orafter Tender submission designed to establishTender prices at artificial non-competitive levels anddeprive the Procuring Entity of the benefits of freeand open competition;

(iii). “Collusive Practice” means an arrangementbetween two or more suppliers, contractors andsubcontractors designed to achieve an improperpurpose, including to influence improperly theactions of the Procuring Entity prior to or afterTender submission, designed to establish Tenderprices at artificial non-competitive levels and todeprive the Procuring Entity of the benefit of freeand open competition;

(iv). “Coercive Practice” means impairing or harming,or threatening to impair or harm, directly orindirectly a supplier, contractor or subcontractor orthe property of any of them to influence improperlythe actions of a Procuring Entity;

(v). “Obstructive Practice” means deliberatelydestroying, falsifying, altering or concealing ofevidence material to the investigation or makingfalse statements to investigators in order tomaterially impede an investigation into allegationsof a corrupt, fraudulent, coercive or collusivepractice; and /or threatening, harassing orintimidating any party to prevent it from disclosingits knowledge of matters relevant to the investigationor from pursuing the investigation.

A Procuring Entity has the right to require that Tenderers,suppliers, and contractors and their subcontractors permitpersons duly appointed by KACC/PPOA/KNAO to inspecttheir accounts and records and other documents relating tothe Tender submission and contract performance;

The Procuring Entity will reject a proposal for award if itdetermines that the Tenderer recommended for award hasengaged in corrupt, fraudulent practices or others statedunder Clause 44.1.a in competing for the contract;

In pursuit of the policy defined in sub-Clause 44.1 the ProcuringEntity will cancel the portion of the funds allocated to acontract for goods, works, or services if it at any timedetermines that corrupt or fraudulent practices were engagedin by representatives of the Procuring Entity or ApprovingAuthority or of a beneficiary of the funds during theprocurement or the execution of that contract;

In the event that the Procuring Entity or Approving Authoritydoes not take timely and appropriate action satisfactory tothe Government of Kenya to remedy the situation, then theDirector-General may order an investigation of procurement

proceedings for the purpose of determining whether therehas been a breach of the Public Procurement and DisposalAct, 2005.

3.3 The Director-General may, on the advice of the AdvisoryBoard, debar a person from participating in procurementproceedings on the ground that the person has committed anoffence under the Public Procurement and Disposal Act, 2005.A debarment shall be for a period of time of not less than fiveyears.Before a person is so debarred, he/she will be given anopportunity to make representations to the Director-Generaland may request the Review Board to review the debarment.

3.4 Any communication between the Tenderers and theProcuring Entity related to matters of alleged fraud orcorruption must be made in writing.

4. Confidentiality 4.1 The Service Providers, their Subcontractors, and the Personnel ofeither of them shall not disclose any proprietary or confidentialinformation relating to the Project, the Services, this Contract,or the Procuring Entity’s business or operations without theprior written consent of the Procuring Entity.

5. ProjectManager’sDecisions

5.1 Except where otherwise specifically stated, the Project Managerwill decide contractual matters between the Procuring Entityand the Contractor in the role representing the Procuring Entity.

6. Delegation 6.1 The Project Manager may delegate any of his duties andresponsibilities to other people except to the Adjudicator, afternotifying the Contractor, and may cancel any delegation afternotifying the Contractor.

7. Communications

7.1 Communications between parties that are referred to in theConditions shall be effective only when in writing. A noticeshall be effective only when it is delivered.

8. Subcontracting 8.1 The Contractor may subcontract with the approval of theProject Manager, but may not assign the Contract without theapproval of the Procuring Entity in writing. Subcontractingshall not alter the Contractor’s obligations.

9. OtherContractors

9.1 The Contractor shall cooperate and share the Site with othercontractors, public authorities, utilities, and the Procuring Entitybetween the dates given in the Schedule of Other Contractors,as referred to in the Contract Data Sheet. The Contractor shallalso provide facilities and services for them as described in theSchedule. The Procuring Entity may modify the Schedule ofOther Contractors, and shall notify the Contractor of any suchmodification

10. Personnel 10.1 The Contractor shall employ the key personnel named in theSchedule of Key Personnel, as referred to in the Contract DataSheet, who shall be appropriately qualified and registered withthe appropriate bodies to carry out the functions stated in theSchedule or other personnel approved by the Project Manager.

The Project Manager will approve any proposed replacement ofkey personnel only if their relevant qualifications and abilitiesare substantially equal to or better than those of the personnellisted in the Schedule.

10.2 If the Project Manager asks the Contractor to remove a personwho is a member of the Contractor’s staff or work force,stating the reasons, the Contractor shall ensure that the personleaves the Site within seven days and has no further connectionwith the work in the Contract.

11. ProcuringEntity’s andContractor’sRisks

11.1 The Procuring Entity carries the risks which this Contract statesare Procuring Entity’s risks, and the Contractor carries the riskswhich this Contract states are Contractor’s risks.

12. ProcuringEntity’s Risks

12.1 From the Start Date until the Defects Correction Certificate hasbeen issued, the following are Procuring Entity’s risks:

a) The risk of personal injury, death, or loss of or damage to property(excluding the Works, Plant, Materials, and Equipment), which aredue to:

(i) Use or occupation of the Site by the Works or forthe purpose of the Works, which is the unavoidableresult of the Works; or

(ii) Negligence, breach of statutory duty, orinterference with any legal right by the ProcuringEntity or by any person employed by or contractedto him except the Contractor.

b) The risk of damage to the Works, Plant, Materials, and Equipmentto the extent that it is due to a fault of the Procuring Entity or inthe Procuring Entity’s design, or due to war or radioactivecontamination directly affecting the country where the Works areto be executed.

12.2 From the Completion Date until the Defects CorrectionCertificate has been issued, the risk of loss of or damage to theWorks, Plant, and Materials is an Procuring Entity’s risk exceptloss or damage due to:

(a) A Defect which existed on the Completion Date;

(b) An event occurring before the Completion Date, whichwas not itself an Procuring Entity’s risk; or

(c) The activities of the Contractor on the Site after theCompletion Date.

13. Contractor’sRisks

13.1 From the Starting Date until the Defects Correction Certificatehas been issued, the risks of personal injury, death, and loss ofor damage to property (including, without limitation, theWorks, Plant, Materials, and Equipment) which are notProcuring Entity’s risks are Contractor’s risks.

14. Insurance 14.1 The Contractor shall provide, in the joint names of theProcuring Entity and the Contractor, insurance cover from theStart Date to the end of the Defects Liability Period, in theamounts and deductibles stated in the Contract Data Sheet forthe following events which are due to the Contractor’s risks:

(a) Loss of or damage to the Works, Plant, and Materials;

(b) Loss of or damage to Equipment;

(c) Loss of or damage to property (except the Works, Plant,Materials, and Equipment) in connection with theContract; and

(d) Personal injury or death.

14.2 Policies and certificates for insurance shall be delivered by theContractor to the Project Manager for the Project Manager’sapproval before the Start Date. All such insurance shall providefor compensation to be payable in the types and proportions ofcurrencies required to rectify the loss or damage incurred.

14.3 If the Contractor does not provide any of the policies andcertificates required, the Procuring Entity may effect theinsurance which the Contractor should have provided andrecover the premiums the Procuring Entity has paid frompayments otherwise due to the Contractor or, if no payment isdue, the payment of the premiums shall be a debt due.

14.4 Alterations to the terms of insurance shall not be made withoutthe approval of the Project Manager.

14.5 Both parties shall comply with any conditions of the insurancepolicies.

15. SiteInvestigationReports

15.1 The Contractor, in preparing the Tender, shall rely on any SiteInvestigation Reports referred to in the Contract Data Sheet,supplemented by any information available to the Tenderers.

16. Queries aboutthe ContractData Sheet

16.1 The Project Manager will clarify queries on the Contract DataSheet.

17. Contractor toConstruct theWorks

17.1 The Contractor shall construct and install the Works inaccordance with the Specifications and Drawings.

18. Commencementand Completion

18.1 The Contractor may commence execution of the Works on theStart Date and shall carry out the Works in accordance with theProgramme submitted by the Contractor, as updated with theapproval of the Project Manager, and complete them by theIntended Completion Date.

19. Approval by theProjectManager

19.1 The Contractor shall submit Specifications and Drawingsshowing the proposed Temporary Works to the ProjectManager, who is to approve them if they comply with theSpecifications and Drawings.

19.2 The Contractor shall be responsible for the design ofTemporary Works.

19.3 The Project Manager’s approval shall not alter the Contractor’sresponsibility for design of the Temporary Works.

19.4 The Contractor shall obtain approval of third parties to thedesign of the Temporary Works, where required.

19.5 All Drawings prepared by the Contractor for the execution ofthe temporary or permanent Works, are subject to priorapproval by the Project Manager before their use.

20. Protection oftheEnvironment

20.1 The Contractors shall take all reasonable steps to protect theenvironment and to limit damage and nuisance to people andproperty resulting from pollution, noise and other results of hisoperations.

20.2 The Contractors shall ensure that emissions, surface dischargesand effluent from his activities shall not exceed prescribedvalues in the environmental laws.

21. Labour Laws 21.2 The Contractor shall comply with all the relevant labour lawsapplicable in the Country, including laws relating to workersemployment, working hours, health, safety, welfare, andimmigration, and shall allow them all their legal rights.

21.2 The Contractor shall require his employees to obey allapplicable laws, including those concerning safety at work.

22. Health andSafety

22.1 The Contractor shall at all times take all reasonable precautionsto maintain the health and safety of his personnel.

22.2 The Contractor shall ensure that first aid facilities are availableat all times at the site and that suitable arrangements are madefor all necessary welfare and hygiene requirements and for theprevention of epidemics.

22.3 The Contractor shall notify the Procuring Entity details of anyaccident as soon as practicable after its occurrence. TheContractor shall maintain records and make reports concerninghealth, safety, and welfare of persons, and damage to theproperty, as the Procuring Entity may reasonably require.

22.4 The Contractor shall conduct an HIV-Aids awarenessprogramme, and shall take other such measures as specified inthe Contract Data Sheet to reduce the risk of transfer of HIVvirus between and among Contractor personnel, the ProcuringEntity’s Staff and the surrounding community.

23. Discoveries 23.1 Anything of historical or other interest or of significant valueunexpectedly discovered on the Site shall be the property of theProcuring Entity. The Contractor shall notify the ProjectManager of such discoveries and carry out the ProjectManager's instructions for dealing with them.

24. Possession ofthe Site

24.1 The Procuring Entity shall give possession of all parts of theSite to the Contractor. If possession of a part is not given bythe date stated in the Contract Data Sheet, the ProcuringEntity will be deemed to have delayed the start of the relevantactivities, and this will be a Compensation Event.

25. Access to theSite

25.1 The Contractor shall allow the Project Manager and any personauthorized by the Project Manager access to the Site and to anyplace where work in connection with the Contract is beingcarried out or is intended to be carried out.

26. Instructions,Inspections andAudits

26.1 The Contractor shall carry out all instructions of the ProjectManager which comply with the applicable laws where the Siteis located.

26.2 The Contractor shall permit the Kenya Government to inspectthe Contractor’s accounts and records relating to theperformance of the Contractor and to have them audited byauditors appointed by the Kenya Government, if so required bythe Kenya Government

27. Disputes 27. 1 If the Contractor believes that a decision taken by the ProjectManager was either outside the authority given to the ProjectManager by the Contract or that the decision was wronglytaken, the decision shall be referred to the Adjudicator within14 days of the notification of the Project Manager’s decision.

28. Procedure forDisputes

28.1 The Adjudicator shall give a decision in writing within 28 daysof receipt of a notification of a dispute.

28.2 The Adjudicator shall be paid by the hour at the rate specifiedin the Tender Data Sheet and Contract Data Sheet, togetherwith reimbursable expenses of the types specified in theContract Data Sheet, and the cost shall be divided equallybetween the Procuring Entity and the Contractor, whateverdecision is reached by the Adjudicator. Either party may refer adecision of the Adjudicator to an Arbitrator within 28 days ofthe Adjudicator’s written decision. If neither party refers thedispute to arbitration within the above 28 days, theAdjudicator’s decision will be final and binding.

28.3 The arbitration shall be conducted in accordance with thearbitration procedure published by the institution named and, inthe place, shown in the Contract Data Sheet.

29. Replacement ofAdjudicator

29.1 Should the Adjudicator resign or die, or should the ProcuringEntity and the Contractor agree that the Adjudicator is notfunctioning in accordance with the provisions of the Contract, anew Adjudicator will be jointly appointed by the ProcuringEntity and the Contractor. In case of disagreement between theProcuring Entity and the Contractor, within 30 days, theAdjudicator shall be designated by the Appointing Authoritydesignated in the Contract Data Sheet at the request of eitherparty, within 14 days of receipt of such request.

B. Time Control

30. Programme 30.1 Within the time stated in the Contract Data Sheet, theContractor shall submit to the Project Manager for approval aProgramme showing the general methods, arrangements, order,and timing for all the activities in the Works.

30.2 An update of the Programme shall be a programme showing theactual progress achieved on each activity and the effect of theprogress achieved on the timing of the remaining work, includingany changes to the sequence of the activities.

30.3 The Contractor shall submit to the Project Manager for approvalan updated Programme at intervals no longer than the periodstated in the Contract Data Sheet. If the Contractor does notsubmit an updated Programme within this period, the ProjectManager may withhold the amount stated in the Contract DataSheet from the next payment certificate and continue to withholdthis amount until the next payment after the date on which theoverdue Programme has been submitted.

30.4 The Project Manager’s approval of the Programme shall not alterthe Contractor’s obligations. The Contractor may revise theProgramme and submit it to the Project Manager again at anytime. A revised Programme shall show the effect of Variationsand Compensation Events

31. Extension ofthe IntendedCompletionDate

31.1 The Project Manager shall extend the Intended Completion Dateif a Compensation Event occurs or a Variation is issued whichmakes it impossible for Completion to be achieved by theIntended Completion Date without the Contractor taking steps toaccelerate the remaining work, which would cause the Contractorto incur additional cost.

31.2 The Project Manager shall decide whether and by how much toextend the Intended Completion Date within 21 days of theContractor asking the Project Manager for a decision upon theeffect of a Compensation Event or Variation and submitting fullsupporting information. If the Contractor has failed to give earlywarning of a delay or has failed to cooperate in dealing with adelay, the delay by this failure shall not be considered inassessing the new Intended Completion Date.

32. Acceleration 32.1 When the Procuring Entity wants the Contractor to finish beforethe Intended Completion Date, the Project Manager will obtainpriced proposals for achieving the necessary acceleration from theContractor. If the Procuring Entity accepts these proposals, theIntended Completion Date will be adjusted accordingly andconfirmed by both the Procuring Entity and the Contractor.

32.2 If the Contractor’s priced proposals for acceleration areaccepted by the Procuring Entity, they shall be incorporated inthe Contract Price and treated as a Variation.

33. Delays 33.1 The Project Manager may instruct the Contractor to delay the start

Ordered bythe ProjectManager

or progress of any activity within the Works.

34. ManagementMeetings

34.1 Either the Project Manager or the Contractor may require theother to attend a management meeting. The business of amanagement meeting shall be to review the plans for remainingwork and to deal with matters raised in accordance with the earlywarning procedure.

34.2 The Project Manager shall record the business of managementmeetings and provide copies of the record to those attending themeeting and to the Procuring Entity. The responsibility of theparties for actions to be taken shall be decided by the ProjectManager either at the management meeting or after themanagement meeting and stated in writing to all who attended themeeting.

35. EarlyWarning

35.1 The Contractor shall warn the Project Manager at the earliestopportunity of specific likely future events or circumstances thatmay adversely affect the quality of the work, increase theContract Price or delay the execution of the Works. The ProjectManager may require the Contractor to provide an estimate of theexpected effect of the future event or circumstance on theContract Price and Completion Date. The estimate shall beprovided by the Contractor as soon as reasonably possible.

35.2 The Contractor shall cooperate with the Project Manager inmaking and considering proposals for how the effect of such anevent or circumstance can be avoided or reduced by anyoneinvolved in the work and in carrying out any resulting instructionof the Project Manager.

C. Quality Control

36. IdentifyingDefects

36.1 The Project Manager shall check the Contractor’s work andnotify the Contractor of any Defects that are found. Suchchecking shall not affect the Contractor’s responsibilities. TheProject Manager may instruct the Contractor to search for aDefect and to uncover and test any work that the ProjectManager considers may have a Defect.

37. Tests 37.1 If the Project Manager instructs the Contractor to carry out a testnot specified in the Specification to check whether any work hasa Defect and the test shows that it does, the Contractor shall payfor the test and any samples. If there is no Defect, the test shallbe a Compensation Event.

38. Correction ofDefects

38.1 The Project Manager shall give notice to the Contractor of anyDefects before the end of the Defects Liability Period, whichbegins at Completion, and is defined in the Contract Data Sheet.The Defects Liability Period shall be extended for as long asDefects remain to be corrected.

38.2 Every time notice of a Defect is given, the Contractor shallcorrect the notified Defect within the length of time specified by

the Project Manager’s notice.

38.3 If the Contractor has not corrected a defect within the timespecified in the Procuring Entity’s notice, a penalty for lack ofperformance will be paid by the Contractor. The amount to bepaid will be calculated as a percentage of the cost of having thedefect correct, assessed as described in Clause 39.

39. UncorrectedDefects

39.1 If the Contractor has not corrected a Defect within the timespecified in the Project Manager’s notice, the Project Managerwill assess the cost of having the Defect corrected, and theContractor will pay this amount.

D. Cost Control

40. Bill ofQuantities

40.1 The Bill of Quantities shall contain items for the construction,installation, testing, and commissioning work to be done by theContractor.

40.2 The Bill of Quantities is used to calculate the Contract Price.The Contractor shall be paid for the quantity of the work done atthe rate in the Bill of Quantities for each item.

41. Changes in theQuantities

41.1 If the final quantity of the work done differs from the quantity inthe Bill of Quantities for the particular item by more than 25percent, provided the change exceeds 1 percent of the InitialContract Price, the Project Manager shall adjust the rate to allowfor the change.

41.2 The Project Manager shall not adjust rates from changes inquantities if thereby the Initial Contract Price is exceeded bymore than 15 percent, except with the prior approval of theProcuring Entity.

41.3 If requested by the Project Manager, the Contractor shallprovide the Project Manager with a detailed cost breakdown ofany rate in the Bill of Quantities.

42. Variations 42.1 All Variations shall be included in the updated Programmesproduced by the Contractor.

43. Payments forVariations

43.1 The Contractor shall provide the Project Manager with aquotation for carrying out the Variation when requested to do soby the Project Manager. The Project Manager shall assess thequotation, which shall be given within seven days of the requestor within any longer period stated by the Project Manager andbefore the Variation is ordered.

43.2 If the work in the Variation corresponds with an itemdescription in the Bill of Quantities and if, in the opinion of theProject Manager, the quantity of work is above the limit statedin Sub-Clause 41.1 or the timing of its execution do not causethe cost per unit of quantity to change, the rate in the Bill ofQuantities shall be used to calculate the value of the Variation.If the cost per unit of quantity changes, or if the nature or timingof the work in the Variation does not correspond with items in

the Bill of Quantities, the quotation by the Contractor shall be inthe form of new rates for the relevant items of work.

43.3 If the Contractor’s quotation is unreasonable, the ProjectManager may order the Variation and make a change to theContract Price, which shall be based on the Project Manager’sown forecast of the effects of the Variation on the Contractor’scosts.

43.4 If the Project Manager decides that the urgency of varying thework would prevent a quotation being given and consideredwithout delaying the work, no quotation shall be given and theVariation shall be treated as a Compensation Event.

43.5 The Contractor shall not be entitled to additional payment forcosts that could have been avoided by giving early warning.

44. Cash FlowForecasts

44.1 When the Programme is updated, the Contractor shall providethe Project Manager with an updated cash flow forecast. Thecash flow forecast shall include different currencies, as definedin the Contract, converted as necessary using the Contractexchange rates.

45. PaymentCertificates

45.1 The Contractor shall submit to the Project Manager monthlystatements of the estimated value of the work executed less thecumulative amount certified previously.

45.2 The Project Manager shall check the Contractor’s monthlystatement and certify the amount to be paid to the Contractorwithin twenty-eight 28 days of receipt of the certificate from thecontractor.

45.3 The value of work executed shall be determined by the ProjectManager.

45.4 The value of work executed shall comprise the value of thequantities of the items in the Bill of Quantities completed.

45.5 The value of work executed shall include the valuation ofVariations and Compensation Events.

45.6 The Project Manager may exclude any item certified in aprevious certificate or reduce the proportion of any itempreviously certified in any certificate in the light of laterinformation.

45.7 The Project Manager shall not be bound to certify any payment,if the net amount, after all retentions and deductions would beless than minimum amount of Interim Payment Certificatestated in the Contract Data Sheet.

46. Payments 46.1 Payments shall be adjusted for deductions for advance paymentsand retention. The Procuring Entity shall pay the Contractor theamounts certified by the Project Manager within 28 days of thedate of each certificate. If the Procuring Entity makes a latepayment, the Contractor shall be paid interest on the latepayment in the next payment Interest shall be calculated from

the date by which the payment should have been made up to thedate when the late payment is made at the prevailing rate ofinterest for commercial borrowing for each of the currencies inwhich payments are made as indicated in the Contract DataSheet.

46.2 If an amount certified is increased in a later certificate or as aresult of an award by the Adjudicator or an Arbitrator, theContractor shall be paid interest upon the delayed payment asset out in this clause. Interest shall be calculated from the dateupon which the increased amount would have been certified inthe absence of dispute.

46.3 Unless otherwise stated, all payments and deductions will bepaid or charged in the proportions of currencies comprising theContract Price.

46.4 Items of the Works for which no rate or price has been enteredin will not be paid for by the Procuring Entity and shall bedeemed covered by other rates and prices in the Contract.

47. CompensationEvents

47.1 The following shall be Compensation Events:

(a) The Procuring Entity does not give access to a part of theSite by the Site Possession Date stated in the ContractData Sheet.

(b) The Procuring Entity modifies the Schedule of OtherContractors in a way that affects the work of the Contractorunder the Contract.

(c) The Project Manager orders a delay or does not issueDrawings, Specifications, or instructions required forexecution of the Works on time.

(d) The Project Manager instructs the Contractor to uncover orto carry out additional tests upon work, which is then foundto have no Defects.

(e) The Project Manager unreasonably does not approve asubcontract to be let.

(f) Ground conditions are substantially more adverse thancould reasonably have been assumed before issuance ofthe Letter of Acceptance from the information issued toTenderers (including the Site Investigation Reports), frominformation available publicly and from a visualinspection of the Site.

(g) The Project Manager gives an instruction for dealing withan unforeseen condition, caused by the Procuring Entity,or additional work required for safety or other reasons.

(h) Other contractors, public authorities, utilities, or theProcuring Entity does not work within the dates and otherconstraints stated in the Contract, and they cause delay or

extra cost to the Contractor.

(i) The advance payment is delayed.

(j) The effects on the Contractor of any of the ProcuringEntity’s Risks.

(k) The Project Manager unreasonably delays issuing aCertificate of Completion.

(l) Other Compensation Events described in the Contract ordetermined by the Project Manager shall apply.

47.2 If a Compensation Event would cause additional cost or wouldprevent the work being completed before the IntendedCompletion Date, the Contract Price shall be increased and/orthe Intended Completion Date shall be extended. The ProjectManager shall decide whether and by how much the ContractPrice shall be increased and whether and by how much theIntended Completion Date shall be extended.

47.3 As soon as information demonstrating the effect of eachCompensation Event upon the Contractor’s forecast cost hasbeen provided by the Contractor, it shall be assessed by theProject Manager, and the Contract Price shall be adjustedaccordingly. If the Contractor’s forecast is deemedunreasonable, the Project Manager shall adjust the ContractPrice based on the Project Manager’s own forecast. The ProjectManager will assume that the Contractor will react competentlyand promptly to the event.

47.4 The Contractor shall not be entitled to compensation to theextent that the Procuring Entity’s interests are adversely affectedby the Contractor’s not having given early warning or nothaving cooperated with the Project Manager.

48. Taxes 48.1 The Project Manager shall adjust the Contract Price if taxes,duties, and other levies are changed between the date 28 daysbefore the submission of Tenders for the Contract and the dateof the last Completion certificate. The adjustment shall be thechange in the amount of tax payable by the Contractor, providedsuch changes are not already reflected in the Contract Price orare a result of Clause 50.

49. Currencies 49.1 Where payments are made in currencies other than the KenyaShillings, the exchange rates used for calculating the amounts tobe paid shall be the exchange rates stated in the Contractor’sTender.

50. PriceAdjustment

50.1 The amounts payable to the Contractor, in various currenciespursuant to Sub-Clause 45.1, shall be adjusted in respect of therise or fall in the cost of labour, Contractor’s Equipment, Plant,materials, and other inputs to the Works, by applying to suchamounts the formulae prescribed in this clause based on theprevailing consumer price index obtained from the CentralBureau of Statistics or the monthly inflation rate issued by the

Central Bank of Kenya.

50.2 To the extent that full compensation for any rise or fall in costs tothe Contractor is not covered by the provisions of this or otherclauses in the Contract, the unit rates and prices included in theContract shall be deemed to include amounts to cover thecontingency of such other rise or fall of costs.

50.3 The adjustment to be applied to amount payable to the Contractoras certified in Payment Certificates shall be determined formulaefor each of the currencies in which the Contract Price is payable.No adjustment is to be applied to work valued on the basis ofCost or current prices. The formulae shall be as follows;

.etcEo

EoEndMo

MoMncLo

LoLnbaPn

where;

Pn is a price adjustment factor to be applied to the amount in eachspecific currency for the payment of the work carried out in thesubject month, where such variations and daywork are not otherwisesubject to adjustment;

a is a constant, specified in the Appendix to Tender, representing thenonadjustable portion in contractual payments;

b, c, d, etc., are weightings or coefficients representing the estimatedproportion of each cost element (labour, materials, equipment usage,etc.) in the Works or sections thereof, net of Provisional Sums, asspecified in the Appendix to Tender; the sum of a, b, c, d, etc., shallbe one;

Ln, Mn, En, etc., are the current cost indices or reference prices of thecost elements in the specific currency of origin for month “n,”determined pursuant to Sub-Clause 50.5, applicable to each costelement; and

Lo, Mo, Eo, etc., are the base cost indices or reference pricescorresponding to the above cost elements at the date specified in Sub-Clause 50.5

The value of net work done, certified by the Project Manager, in anymonthly Interim or Final Certificate as payable by the ProcuringEntity to the Contractor before deduction of any retention money shallbe increased or decreased by an amount of ‘F’.

PnxPcF

where;

The effective value Pc of work done which is to be subjected toincrease or decrease shall be the difference between:

(i) the amount which, in the opinion of the Project Manager,is due to the Contractor under Clause 45 (beforededuction of retention money and before deducting sumspreviously paid on account) less:

any amount for payment or repayment of any advancepayment;

any amount for materials on site (if any); any amounts for nominated sub-contractors (if any) any amounts for any other items based on actual cost or

current prices; or any sums for increase or decrease in the Contract Price

paid under this Sub-Clauseand

(ii) the amount calculated in accordance with (i) above of thisSub-clause and included in the last preceding statement.

50.4The sources of indices shall be those listed in the Appendix toTender, as approved by the Engineer. Indices shall beappropriate for their purpose and shall relate to the Contractor’sproposed source of supply of inputs on the basis of which hisContract Price and expected foreign currency requirements shallhave been computed. As the proposed basis for priceadjustment, the Contractor shall have submitted with his Tenderthe tabulation of Weightings and Source of Indices in theAppendix to Tender, which shall be subject to approval by theEngineer.

50.5 The base cost indices or prices shall be those prevailing on theday 28 days prior to the latest date for submission of Tenders.Current indices or prices shall be those prevailing on the day 28days prior to the last day of the period to which a particularInterim Payment Certificate is related. If at any time the currentindices are not available, provisional indices as determined bythe Engineer will be used, subject to subsequent correction of theamounts paid to the Contractor when the current indices becomeavailable.

50.6 If the Contractor fails to complete the Works within the time forcompletion prescribed under Clause 58 adjustment of pricesthereafter until the date of completion of the Works shall bemade using either the indices or prices relating to the prescribedtime for completion, or the current indices or prices, whicheveris more favourable to the Procuring Entity, provided that if anextension of time is granted pursuant to Clause 28, the aboveprovision shall apply only to adjustments made after the expiryof such extension of time.

50.7 The weightings for each of the factors of cost given in theAppendix to Tender shall be adjusted if, in the opinion of theEngineer, they have been rendered unreasonable, unbalanced,or inapplicable as a result of varied or additional work alreadyexecuted or instructed under Clause 43 or for any other reason.

51. Retention 51.1 The Procuring Entity shall retain from each payment due to the

Contractor the proportion stated in the Contract Data Sheetuntil Completion of the whole of the Works.

51.2 On completion of the whole of the Works, half the total amountretained shall be repaid to the Contractor and the other halfwhen the Defects Liability Period has passed and the ProjectManager has certified that all Defects notified by the ProjectManager to the Contractor before the end of this period havebeen corrected.

51.3 On completion of the whole Works, the Contractor maysubstitute retention money with an “on demand” Bankguarantee.

52. LiquidatedDamages

52.1 The Contractor shall pay liquidated damages to the ProcuringEntity at the rate per day stated in the Contract Data Sheet foreach day that the Completion Date is later than the IntendedCompletion Date. The total amount of liquidated damages shallnot exceed the amount defined in the Contract Data Sheet.The Procuring Entity may deduct liquidated damages frompayments due to the Contractor. Payment of liquidateddamages shall not affect the Contractor’s liabilities.

52.2 If the Intended Completion Date is extended after liquidateddamages have been paid, the Project Manager shall correct anyoverpayment of liquidated damages by the Contractor byadjusting the next payment certificate. The Contractor shall bepaid interest on the overpayment, calculated from the date ofpayment to the date of repayment, at the rates specified in Sub-Clause 46.1.

52.3 If the Contractor has not corrected a defect within the timespecified in the Procuring Entity’s notice, the Procuring Entitywill assess the cost of having the defect corrected, theContractor will pay this amount, and a penalty for lack ofperformance calculated as described in Clause 38.

53. Bonus 53.1 The Contractor shall be paid a Bonus calculated at the rate percalendar day stated in the Contract Data Sheet for each day(less any days for which the Contractor is paid for acceleration)that the Completion is earlier than the Intended CompletionDate. The Project Manager shall certify that the Works arecomplete, although they may not be due to be complete.

54. AdvancePayment

54.1 The Procuring Entity shall make advance payment to theContractor of the amounts stated in the Contract Data Sheet bythe date stated in the Contract Data Sheet, against provision bythe Contractor of an Unconditional Bank Guarantee in a formand by a bank acceptable to the Procuring Entity in amounts andcurrencies equal to the advance payment. The Guarantee shallremain effective until the advance payment has been repaid, butthe amount of the Guarantee shall be progressively reduced bythe amounts repaid by the Contractor. Interest will not becharged on the advance payment.

54.2 The Contractor is to use the advance payment only to pay for

Equipment, Plant, Materials, and mobilization expensesrequired specifically for execution of the Contract. TheContractor shall demonstrate that advance payment has beenused in this way by supplying copies of invoices or otherdocuments to the Project Manager.

54.3 The advance payment shall be repaid by deductingproportionate amounts from payments otherwise due to theContractor, following the schedule of completed percentages ofthe Works on a payment basis. No account shall be taken of theadvance payment or its repayment in assessing valuations ofwork done, Variations, price adjustments, CompensationEvents, Bonuses, or Liquidated Damages.

55. PerformanceSecurities

55.1 The Performance Security shall be provided to the ProcuringEntity no later than the date specified in the Letter ofAcceptance and shall be issued in an amount and form and by abank or surety acceptable to the Procuring Entity, anddenominated in the types and proportions of the currencies inwhich the Contract Price is payable. The Performance Securityshall be valid until a date 28 days from the date of issue of theCertificate of Completion in the case of a Bank Guarantee, anduntil one year from the date of issue of the CompletionCertificate in the case of a Performance Bond.

56. Day works 56.1 If applicable, the Day works rates in the Contractor’s Tendershall be used for small additional amounts of work only whenthe Project Manager has given written instructions in advancefor additional work to be paid for in that way.

56.2 All work to be paid for as Day works shall be recorded by theContractor on forms approved by the Project Manager. Eachcompleted form shall be verified and signed by the ProjectManager within two days of the work being done.

56.3 The Contractor shall be paid for Day works subject to obtainingsigned Day works forms.

57. Cost of Repairs 57.1 Loss or damage to the Works or Materials to be incorporated inthe Works between the Start Date and the end of the DefectsCorrection periods shall be remedied by the Contractor at theContractor’s cost if the loss or damage arises from theContractor’s acts or omissions.

E. Finishing the Contract

58. CompletionCertificate

58.1 The Contractor shall request the Project Manager to issue acertificate of Completion of the Works, and the Project Managerwill do so upon deciding that the work is completed.

59. Taking Over 59.1 The Procuring Entity shall take over the Site and the Works withinseven days of the Project Manager’s issuing a certificate ofCompletion.

60. Final Account 60.1 The Contractor shall supply the Project Manager with a detailed

account of the total amount that the Contractor considers payableunder the Contract before the end of the Defects Liability Period.The Project Manager shall issue a Defects Liability Certificate andcertify any final payment that is due to the Contractor within 56days of receiving the Contractor’s account if it is correct andcomplete. If it is not, the Project Manager shall issue within 56days a schedule that states the scope of the corrections or additionsthat are necessary. If the Final Account is still unsatisfactory afterit has been resubmitted, the Project Manager shall decide on theamount payable to the Contractor and issue a payment certificate.

61. Operating andMaintenanceManuals

61.1 If “as built” Drawings and/or operating and maintenance manualsare required, the Contractor shall supply them by the dates stated inthe Contract Data Sheet.

61.2 If the Contractor does not supply the Drawings and/or manuals bythe dates stated in the Contract Data Sheet, or they do not receivethe Project Manager’s approval, the Project Manager shallwithhold the amount stated in the Contract Data Sheet frompayments due to the Contractor.

62. Termination 62.1 The Procuring Entity or the Contractor may terminate the Contractif the other party causes a fundamental breach of the Contract.

62.2 Fundamental breaches of Contract shall include, but shall not belimited to, the following:

(a) The Contractor stops work for 28 days when no stoppage ofwork is shown on the current Programme and the stoppagehas not been authorized by the Project Manager;

(b) The Project Manager instructs the Contractor to delay theprogress of the Works, and the instruction is not withdrawnwithin 28 days;

(c) The Procuring Entity or the Contractor is made bankrupt orgoes into liquidation other than for a reconstruction oramalgamation;

(d) A payment certified by the Project Manager is not paid bythe Procuring Entity to the Contractor within 84 days of thedate of the Project Manager’s certificate;

(e) The Project Manager gives Notice that failure to correct aparticular Defect is a fundamental breach of Contract and theContractor fails to correct it within a reasonable period oftime determined by the Project Manager;

(f) The Contractor does not maintain a Security, which isrequired; and

(g) The Contractor has delayed the completion of the Works bythe number of days for which the maximum amount ofliquidated damages can be paid, as defined in the ContractData Sheet.

(h) If the Contractor, in the judgment of the Procuring Entity hasengaged in corrupt or fraudulent practices in competing for

or in executing the Contract.

For the purpose of this paragraph:

“corrupt practice” means the offering, giving, receiving orsoliciting of anything of value to influence the action of apublic official in the procurement process or in contractexecution and includes inter alia, bribery and extortion orcoercion which involves threats of injury to person, propertyor reputation, and.

“fraudulent practice” means a misrepresentation of facts inorder to influence a procurement process or the execution ofa contract to the detriment of the Procuring Entity, andincludes collusive practice among Tenderers (prior to or afterTender submission) designed to establish Tender prices atartificial non-competitive levels and to deprive the ProcuringEntity of the benefits of free and open competition.

62.3 When either party to the Contract gives notice of a breach ofContract to the Project Manager for a cause other than those listedunder Sub-Clause 62.2 above, the Project Manager shall decidewhether the breach is fundamental or not.

62.4 Notwithstanding the above, the Procuring Entity may terminate theContract for convenience.

62.5 If the Contract is terminated, the Contractor shall stop workimmediately, make the Site safe and secure, and leave the Site assoon as reasonably possible.

63. Payment uponTermination

63.1 If the Contract is terminated because of a fundamental breach ofContract by the Contractor, the Project Manager shall issue acertificate for the value of the work done and Materials orderedless advance payments received up to the date of the issue of thecertificate and less the percentage to apply to the value of the worknot completed, as indicated in the Contract Data Sheet.Additional Liquidated Damages shall not apply. If the totalamount due to the Procuring Entity exceeds any payment due tothe Contractor, the difference shall be a debt payable to theProcuring Entity.

63.2 If the Contract is terminated for the Procuring Entity’s convenienceor because of a fundamental breach of Contract by the ProcuringEntity, the Project Manager shall issue a certificate for the value ofthe work done, Materials ordered, the reasonable cost of removalof Equipment, repatriation of the Contractor’s personnel employedsolely on the Works, and the Contractor’s costs of protecting andsecuring the Works, and less advance payments received up to thedate of the certificate.

64. Property 64.1 All Materials on the Site, Plant, Equipment, Temporary Works,and Works shall be deemed to be the property of the ProcuringEntity if the Contract is terminated because of the Contractor’sdefault.

65. Release fromPerformance

65.1 If the Contract is frustrated by the outbreak of war or by any otherevent entirely outside the control of either the Procuring Entity or

the Contractor, the Project Manager shall certify that the Contracthas been frustrated. The Contractor shall make the Site safe andstop work as quickly as possible after receiving this certificate andshall be paid for all work carried out before receiving it and for anywork carried out afterwards to which a commitment was made.

66. Suspension ofFinancing

66.1 In the event that the source of financing is suspended to theProcuring Entity, from which part of the payments to theContractor are being made:

(a) The Procuring Entity is obligated to notify the Contractor of suchsuspension within 7 days of having received the financingagency’s suspension notice.

(b) If the Contractor has not received sums due it within the 28 daysfor payment provided for in Sub-Clause 46.1, the Contractor mayimmediately issue a 14-day termination notice.

SECTION V: CONTRACT DATA SHEET (CDS)

Contract Data Sheet

Instructions for completing the Contract Data Sheet

CDSClause

GCCClause

Description

1 1.1

A. General

(Itemise Definitions to take the same meaning as per the GeneralConditions)

The Procuring Entity isACTION AFRICA HELP INTERNATIONAL

The Adjudicator is WATER SECTOR TRUST FUND

The Defects Liability Period is 90 days.

The Project Manager is

ALLAN ODERA – AAHI LIVELIHOODS COORDINATOR

The name and identification number of the Contract is

Enhancing livelihood through water and sanitation project1163/KKM/RFP/01/2020

The Works consist of

Construction of the bio digester latrines in Lopur primary- 2 No 4 door bio digester latrine Nijawoi – 2 No 4 door bio digester latrine Nammon. – 2 No. 4 door bio digester latrine

The objectives of the contract are Improved water and sanitation access to both refugees

and hoist community. Increased income among the livestock and crop farmers Improved environmental protection and conservation through

the natural resource management and planting trees using thewater

Employment creation through labour that is related to waterand sanitation.

Peaceful co-existence amongst the refugees and host andthe neighboring countries of Ethiopia and Uganda.

The Start Date shall be: 27th March 2020

The Intended Completion Date for the whole of the Works shall be27th April 2020

The Site is located at Lopur Ward, Turkana West County.

2 2.3 In addition to the listed documents in section 2.3 correspondences and

minutes drawn for the purpose of the contract shall be also be part ofthe contract.

4. 3.1 The language of the Contract documents is ENGLISHThe law that applies to the Contract is the Kenyan Law.

6. 10.1Firms/Conractor(s) that KNOW they meet therequirements should submit an expression ofinterest (maximum of 5 pages), which shouldinclude the following:

Qualification at least Diploma in civil engineering andsanitation

Registered with NCA and Association of engineers Experience in bio -latrine construction. A suitability statement, including commitment to be

available for the entire assignment. A brief statement on the proposed assessment

methodology including a detailed work plan.

9. 22.4 The other measures include:a. Minimising the number of migrant workers employed on

the project and household in the site camp

b. Providing access to voluntary counselling and testing(VCT)

c. Providing psychological support and health care includingprevention and treatment of opportunistic infections forworkers infected and affected, as well as their families

d. Providing condoms (male and female) to workers

10. 24.1 &47.1

The Site Possession Date shall be 25th March 2020

12. 28.3 Arbitration will take place at [insert the place] in accordance withrules and regulations published by ……………………….. [state theinstitutions] and [insert rules and regulations]

13. 29.1 Appointing Authority for the Adjudicator: [Insert the name ofAuthority]

B. Time Control

14. 30.1 The Contractor shall Submit a Programme for the Works within 7days of delivery of the Letter of Acceptance.

15. 30.3 The period between Programme updates is 7 days.

16. 30.3 The amount to be with held by the Project Manager in case thecontractor does not submit an updated programme is 0.1% OF THE

CONTRACT PRICE

C. Quality Control

17. 38.1 The Defects Liability Period is 90 days.

D. Cost Control

18. 45.7 Minimum Amount of Interim Payment Certificate will be 30 per centof contract price

20. 47.1(a) The Site Possession Date shall be 25th March, 2020 OR ANYOTHER TIME SPECIFIED BY THE PROJECT MANAGER

21. 50 The contract IS NOTsubject to price adjustment in accordance withClause 50 of the General Conditions of Contract.

22. 51.1 The amount of retention is 10 % of value of works of InterimPayment Certificate’.

Limit of retention will be 10% of contract price.

23. 52.1 The rate of liquidated damages is0.1 percent of contract price per day

52.162.2 (g)

The maximum amount of liquidated damages is10% of Contract Price

24. 53.1 The bonus for early completion is NOT APPLICABLE

25. 54.1 The amount of advance payment shall be ZERO per cent of thecontract sum

26. 55.1 The Performance Security shall be10 percent of the contract price.

E. Finishing the Contract

27. 61.1 As built drawings shall be supplied by the contractor by 30 DAYSAFTER SUBSTANTIAL COMPLETION OF WORKS

28. 61.2 The amount to be withheld by the Project Manager in the case thecontractor does not submit as built drawings is 0.5% OFCONTRACT PRICE

29. 63.1 The percentage to apply to the value of the work not completed,representing the Procuring Entity's additional cost for completing theWorks, is 10%

SECTION VI: TECHNICAL SPECIFICATIONS

SECTIONVII: DRAWINGS

Drawings are attached as Vol 1

All the works will be executed to the following specifications

1. Annex A

2. Annex A1

3. Annex A2

SECTION VIII: BILL OF QUANTITIES

PROPOSED BIODIGESTER LATRINE – LOPUR PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) (LATRINE NO 1)

A. BIODIGESTER CONSTRUCTION

Item Description Unit QtyKsh.

Rate Amount1 Preliminary works

1.1

Setting-out digesters, expansionchambers and establishment of refernceline and centre points. LS 1.00Sub-total Preliminary works

2Earthworks and water drainagearound the plant

2.1Ground levelling, excavation fordigesters and expansion chambers. m³ 78.00

2.2Backfilling and embankments fordigesters and expansion chambers. m³ 36.00

2.3Landscaping, ground profiling, gravelspreading in pathways. m² 42.00

Sub-total Earthworks and waterdrainage around the plant

3

Construction of digesters &expansion chambers (Refer todrawings for more details)

3.1

Placement of 300mm Layer ofHardcore layer under bottom slab fordigester and expansion chamber.Compacted in 150mm layer m³ 8.80

3.2

Construction of a 200mm x 200mmreinforced concrete ring on the bottomof digester. M15 ratio 1:2:4 m³ 0.70

3.3

Construction of a reinforced concretering under digester's dome. M15 ratio1:2:4 m³ 1.00

3.4

Construction of a reinforced concretebottom slab for digester. 150mm thickM15 ratio 1:2:4 m³ 0.65

3.5

Construction of a reinforced concretebottom slab for expansionchambers.150mm thick M15 ratio1:2:4 m³ 1.60

3.6

Construction of a reinforced concretebeam above the the expansion chamberwall and above the opening doors tothe chamber and overflow. 200mm x200mm, 150mm thick M15 ratio 1:2:4. m³ 0.70

3.7

Elevation of digester dome inbrickwork masonry with cement andsand mortar 1:¼:3, with chicken wirereinforcements, 2m wide, all roundoutside. m³ 26.00

3.8

Masory wall 200mm x 225mm for thedigester dome , expansion chamber,and the feeding chamber on 1:3 cementsand ratio. m² 28.00

3.9

Plastering of internal sides and roof ofdigesters, sides of expansion chambersand internal and external sides on thefeeding chamber with cement-limemotar 1:¼:3 m² 58.00

3.10Casting of concrete gas tight lids withgas outlet setup. m³ 0.70

3.11

Constuction of manholes/inspectionchambers (0.6m x 0.6m diameter) ontop of expansion chambers anddigesters with cover slab in reinforcedconcrete, 8mm, spacing 20cm. pcs 1.00

Sub-total Construction of digestors &expansion chambers

4Plumbing works & installation ofbiogas stoves

4.1

Constuction of manholes in masonryworks (0.6m x 0.6m diameter) for gasvalves and water traps chambers withcover slab in reinforcement of 8mm,spacing 20cm. pcs 3.00

4.2

Supply and installation of heavy dutydouble burner institutional biogas stovecapable of carrying 100 litres capacitysaucepan. pcs 1.00

4.3

Gas plumbing works from digesters tokitchen, high grade PVC, 25mm PN 10and allow for installation of a gauge(To facilitate detection of low/highgas). m 70.00

4.4

Waste drainage works from toilets tobiogas digesters and to post treatmentpond in PVC of 160mm, PN 4. m 10.00

Sub-total Plumbing works &installation of biogas stove

5 Initial Feeding

5.1Supply, mixing and feeding of cowdung upto initial gas production level. Tons 24.00Sub-total Initial Feeding

6 Effluent Handling

6.1

Excavation, compaction and sideprotection by gated weldmesh, of theslury post treatment pond m³ 15.36Sub-total Effluent Handling

Total carried to Grand Summary

B. 4 DOOR BLOCK LATRINE CONSTRUCTION

4 DOORS TOILET - BILL OF QUANTITIESITEM DESCRIPTION QTY UNIT RATE

(Ksh)AMOUNT (Ksh)

SUBSTRUCTURE.1 Excavations.1.1 Excavate subsoil to an average depth

of 200mm from ground level andtransport away from site .

28 SM

1.2 Excavation of the foundation trenches600mm wide and not exceeding 1.0 mdepth. To include excavations for thethe shit drainage pipe

14 CM

2 Mass concrete.(1:2:4 in:-2.1 600m by 200mm for the strip

foundation1.8 CM

3 Vibrated Reinforced concrete(1:2:4/20mm) in :-

3.1 100mm Floor slab and walk area 2.1 CM

4 reinforcement4.1 BRC A142 for the entire floor area and

walk area 20 SM

4.2 10 mm diameter high tensile steel(0.616kg/m) in ring beam at 200mmcentre both ways

28 Kg

4.3 6mm diameter round bars (0.222kg/m)in ring beam stirrups 15 Kg

5 Foundation walling5.1 225 mm thick quarry stones wall

bedded in c/s mortar reinforced byHoop Iron after every alternate course

22 SM

5.2Hardcore.

5.3 300mm thick hand packed hardcorelaid, well watered and compacted inlayers for the floor slab , Ramp andwalk area

6 CM

6 Murram Blinding6.1 50mm Thick Murram blinding well

spread and compacted to the surfacesof the Hardcore.

25 SM

7 Anti-Termite treatment7.1 Apply Anti-Termite treatment to the

Murram blinding from the ApprovedManufacturers. (Gradiator TC)

25 SM

8 Dpm.8.1 500 Gauge polythene as damp proof

membrane on slab area25 SM

9 Sawn formwork to:9.1 Edges of floor slab. (150mm) 20 LM

10 Return and Fill.10.1 Return, Fill and Ram imported

materials around the foundation andensure proper drainage

10 CM

Sub Total 1

11 SUPERSTRUCTURE.Walling.Dpc.

11.1 150mm DPC hessian based bituminouslaid with 200mm laps

24 LM

11.2 150 mm thick natural stone walling.Provide for hoop iron in every alternatecourse

44 SM

11.3 150 mm thick louvre block waling 1 SM


12.1 150 x 300mm Ring Beams 1 CM12.2 sawn timber formwork to Sides of ring

beam8 SM

13 Steel casement doorsProvide and install the followingpurpose made doors complete withfittings and locks

13.1 Steel metal fabricated casement door900 X 2100mm to latrines

3 No

13.2 Steel metal fabricated casement door1100 X 2100mm to the disabledlatrines for the toilets. Complete with 3no spring hinges opening both ways toallow a disabled persons ease withaccess

1 No

Sub Total 2

14 Roofing works

All structure truss members shall be inseasoned eucalyptus wood and paintedtwo coats of anti termite solution andshall be tight Nailed with top tie beamwith 6mm diameter plain bar.

14.1 75x50mm rafters 20 LM14.2 75 x 50mm Wall plate 11 LM14.3 50 x 50mm purlins 20 LM14.4 200 x 25mm Faciaboard 18 LM

15 Roof covering( flat roof)15.1 28 Gauge box profile iron sheet roofing

fitted on to the roof structure with roofnail and rubbers to S.E approval

16 SM

Sub Total 3

16 Finishing works16.1 Plaster16.1.1 12mm plaster the internal wall surfaces

in cement/sand mortar in ratio 1:4.68 SM

16.1.2 Floor finishes with the prescribedtampering and allow for forming of pithole and construction of foot rest todetails for normal toilets including the ,ramp walk area

25 SM

16.1.3 External wall finishing with horizontalkeys

12 SM

16.2 Painting

Prepare and apply one undercoatand 2 finishing coat first grade

16.2.1 To door and fasciaboard surface usingoil based paints including metal doorframes.

8 SM

16.2.2 To walls externally and internally 48 SM

Sub Total 4

17 Plumbing Works17.1 supply and fix all plumbing works

including: water gutter, down pipeswater tank with 3no. heavy duty presswater taps and masonary water tankplatform elevated 750mm from theground including a 500 Litre water tank

1 Item

Supply and fix all drainage works andsanitaryware

17.2 Ceramic toilet for the disabled persons 1 Item17.3 25mm dia. pipe for disabled support

fixed as per Architectural drawings1 Item

17.4 Include the shit drainage 200mm Wastepipe, drop pipes from the pit hole andgalley trap at the end

1 item

17.5 Provide for air tight 600mx 600mx600m man hole

1 item

Sub Total 5


PROPOSED BIODIGESTER LATRINE – LOPUR PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) (LATRINE NO 2)




1.1

Setting-out digesters, expansionchambers and establishment ofrefernce line and centre points. LS 1.00

Sub-total Preliminary works






3


3.1


3.2


3.3


3.4


3.5


3.6

Construction of a reinforced concretebeam above the the expansion chamberwall and above the opening doors tothe chamber and overflow. 200mm x200mm, 150mm thick M15 ratio1:2:4. m³ 0.70

3.7


3.8


3.9



3.11




4.1


4.2

Supply and installation of heavy dutydouble burner institutional biogasstove capable of carrying 100 litrescapacity saucepan. pcs 1.00

4.3


4.4



5 Initial Feeding


6 Effluent Handling

6.1





(Ksh)AMOUNT (Ksh)



28 SM


14 CM


foundation1.8 CM




walk area 20 SM


28 Kg




22 SM

5.2Hardcore.


6 CM



25 SM



25 SM






10 CM

Sub Total 1



24 LM

11.2 150 mm thick natural stone walling.Provide for hoop iron in everyalternate course

44 SM




beam8 SM



3 No


1 No

Sub Total 2

14 Roofing works



15 Roof covering( flat roof)15.1 28 Gauge box profile iron sheet

roofing fitted on to the roof structurewith roof nail and rubbers to S.Eapproval

16 SM

Sub Total 3




25 SM


12 SM

16.2 PaintingPrepare and apply one undercoatand 2 finishing coat first grade


8 SM


Sub Total 4


including: water gutter, down pipeswater tank with 3no. heavy duty presswater taps and masonary water tankplatform elevated 750mm from theground including a 500 Litre watertank

1 Item




17.4 Include the shit drainage 200mmWaste pipe, drop pipes from the pithole and galley trap at the end

1 item


1 item

Sub Total 5


PROPOSED BIODIGESTER LATRINE – NIJAWAI PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) – LATRINE NO 1




1.1







3


3.1


3.2


3.3


3.4


3.5


3.6


3.7


3.8


3.9



3.11




4.1


4.2


4.3


4.4



5 Initial Feeding


6 Effluent Handling

6.1





(Ksh)AMOUNT (Ksh)



28 SM


14 CM


foundation1.8 CM




walk area 20 SM


28 Kg




22 SM

5.2Hardcore.


6 CM



25 SM



25 SM






10 CM

Sub Total 1



24 LM


44 SM




beam8 SM



3 No


1 No

Sub Total 2

14 Roofing works





16 SM

Sub Total 3




25 SM


12 SM



8 SM


Sub Total 4



1 Item





1 item


1 item

Sub Total 5


PROPOSED BIODIGESTER LATRINE – NIJAWAI PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) – LATRINE NO 2




1.1







3


3.1


3.2


3.3


3.4


3.5


3.6


3.7


3.8


3.9



3.11




4.1


4.2


4.3


4.4



5 Initial Feeding


6 Effluent Handling

6.1





(Ksh)AMOUNT (Ksh)



28 SM


14 CM


foundation1.8 CM




walk area 20 SM


28 Kg




22 SM

5.2Hardcore.


6 CM



25 SM



25 SM






10 CM

Sub Total 1



24 LM


44 SM




beam8 SM



3 No


1 No

Sub Total 2

14 Roofing works





16 SM

Sub Total 3




25 SM


12 SM

16.2 Painting

Prepare and apply one undercoatand 2 finishing coat first grade


8 SM


Sub Total 4



1 Item





1 item


1 item

Sub Total 5


PROPOSED BIODIGESTER LATRINE – NAMMON PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) LATRINE NO 1




1.1







3


3.1


3.2


3.3


3.4


3.5


3.6

Construction of a reinforced concretebeam above the the expansion chamberwall and above the opening doors to thechamber and overflow. 200mm x200mm, 150mm thick M15 ratio 1:2:4. m³ 0.70

3.7


3.8


3.9



3.11




4.1


4.2


4.3


4.4



5 Initial Feeding


6 Effluent Handling

6.1





(Ksh)AMOUNT (Ksh)



28 SM


14 CM


foundation1.8 CM




walk area 20 SM


28 Kg




22 SM

5.2Hardcore.


6 CM


spread and compacted to the surfaces ofthe Hardcore.

25 SM

7 Anti-Termite treatment

7.1 Apply Anti-Termite treatment to theMurram blinding from the ApprovedManufacturers. (Gradiator TC)

25 SM






10 CM

Sub Total 1



24 LM


44 SM




beam8 SM



3 No


1 No

Sub Total 2

14 Roofing works





16 SM

Sub Total 3




25 SM


12 SM



8 SM


Sub Total 4


including: water gutter, down pipeswater tank with 3no. heavy duty presswater taps and masonary water tankplatform elevated 750mm from theground including a 500 Litre water tank

1 Item


17.2 Ceramic toilet for the disabled persons 1 Item

17.3 25mm dia. pipe for disabled supportfixed as per Architectural drawings

1 Item


1 item


1 item

Sub Total 5


PROPOSED BIODIGESTER LATRINE – NAMMON PRIMARY SCHOOLBILL OF QUANTITIESELEMENT NO.1 BIODIGESTER (CAPACITY 32M3) LATRINE NO 2




1.1







3


3.1


3.2


3.3


3.4


3.5


3.6


3.7


3.8


3.9



3.11




4.1


4.2


4.3


4.4



5 Initial Feeding


6 Effluent Handling

6.1





(Ksh)AMOUNT (Ksh)



28 SM


14 CM


foundation1.8 CM




walk area 20 SM


28 Kg




22 SM

5.2Hardcore.


6 CM



25 SM



25 SM




10 Return and Fill.

10.1 Return, Fill and Ram importedmaterials around the foundation andensure proper drainage

10 CM

Sub Total 1



24 LM


44 SM




beam8 SM



3 No


1 No

Sub Total 2

14 Roofing works



15 Roof covering( flat roof)

15.1 28 Gauge box profile iron sheet roofingfitted on to the roof structure with roofnail and rubbers to S.E approval

16 SM

Sub Total 3




25 SM


12 SM



8 SM


Sub Total 4



1 Item





1 item


1 item

Sub Total 5


SECTION IX: EVALUATION CRITERIA

The tenders submitted by tenderers shall be evaluated in the following three (3) stages:

Stage 1: Preliminary Bid Responsiveness Assessment

This will involve assessing whether bidders have complied with submission requirements and havealso attached certified copies of mandatory eligibility and statutory documents. Evaluation at thisstage will be conducted on Yes/No, and bidders are expected to show evidence of ALL requireditems so as to proceed to the next stage of evaluation.

Stage 1: Preliminary Bid Responsiveness Assessment(Mandatory Requirements)

Yes/No

Submission Requirements:

a) Tender submitted in both Original and Copy (Ref: 2.17.1)

b) Each page of the tender document serialized including the attachments (Section 74(i) ofPPDA, 2015)

c) Form of tender signed and stamped by the authorized person

d) Singed AAHI vendor code of conduct

Eligibility and Statutory Documents:

e) Bidder to provide self-declaration that the person/tenderer is not debarred in the matter ofthe Public Procurement and Asset Disposal Act 2015 (As per section 62 of the Act)

f) Bidder to provide self-declaration that the person/tenderer will not engage in any corrupt orfraudulent practice

g) Certified Bank statement : (2019 – 2020)

h) Certified Copy of Certificate of Incorporation/Registration

i) Certified Copy of Current Tax Compliance certificate from Kenya Revenue Authority

j) Certified Copy of Valid and current Business Permit

k) Disclosure of business ownership (Directors/ Partners /Sole Proprietor). Attach a copy ofCR12 Form

l) Certified copy of National Construction Authority (NCA) registration Certificate for atleast Class 8 which must be in building works and Civil works Category

Stage 2: Technical Evaluation Stage

Tenders will be evaluated to ensure that they are substantially responsive to the technicalspecifications and contract conditions stated in the Tender Document. The determination of atender’s technical responsiveness will be based on the contents of the tender itself, subject to anyclarifications received in the preliminary examination of Tenders. Items of this evaluation will bescored.

Particulars/Items Max Points1. At least 5 years experience in handling the same magnitude of

works i.e. construction of bio-digester pit latrines or related civilworks. Attach reference letters/contracts/purchase orders for atleast five different firms. 5 points will be awarded for eachevidence attached.

25 points

2. Technical skill in terms of human resource. Attach CVs andcertified copies of academic certificates detailing qualifications ofat least three (3) key personnel who shall be involved in thisassignment as Site Project Managers or/and Foreman. Thepersons must be working with the organization by the time ofsubmitting this proposal. Each of the personnel will be evaluated asfollows:

Relevant technical qualification such as at least Diploma in Civilengineering and sanitation or related field (4 points) for each proofprovided for a site manager/foreman.

Experience for not less than 5 years in practice (3 points) for eachproof provided for a manager/foreman

Registration with relevant professional body including NCA andassociate of engineers as site agent/supervisor e.t.c(1.66 points) foreach proof provided for a manager/foreman

23 points

3. Equipment and plant owned by the company to be directly assignedto the project during the contract period. Provide a list of relevantequipment and accessories showing the status of ownership. Leaseagreement will be accepted for those who do not own and maywant to lease.

2 points will be awarded for listing and attaching evidence ofownership or lease agreement for; Lorry, Concrete mixer others (1marks for each relevant equipment for the proposed works)

2 points

4. Work plan/Schedule. Provide a work plan detailing how theassignment will be undertaken and how the overall goals will beachieved as per the schedule which must be within agreeabletimeline as follows:

Listing of relevant activities for the assignment(5 points)

Indication of responsibilities for respective activities (5 points)

Indication of timelines for the respective activities (5 points)

Indicating the deliverables (5 points)

20 points

Total 70 points

Stage 3: Financial Evaluation Stage

Tenders that are determined to be substantially responsive to the requirements of the TenderDocument shall be subjected to financial evaluation to determine the evaluated price for eachTender. The evaluated price for each Tender is determined by:

Particulars Max Points1. Price evaluation. A relative score formula will be applied to the

advantage of the lowest quoted price as indicated below.

(a/b)*30 Where:

a=lowest quoted price at financial stage;

b = price of bidder being evaluated

30 points

Total 30 points

A threshold of 70% for the combined scores for both Technical and Financial will be applied andbidders who score above the same will be considered for award in relation to the prices offered.Bidders who shall score below 70% will be discontinued from further evaluation. The lowestevaluated bidder offering the lowest price will be awarded the contract.

SECTION X: TENDER FORMS

A. Form of Tender[date]

To:Country Program Manager —Action Africa Help International

We offer to execute the construction of six 4 door Bio-digester pit latrines in Lopurward, Turkana west sub-county — TENDER NO. 1163/KKM/RFP/01/2020]in accordance with the Conditions of Contract accompanying this Tender for the Contract Price

Kshs....................................................................

In words.........................................................................................................................

........................................................................................................................................

.......................................................................................................................................

We accept the appointment of [name proposed in Tender Data Sheet] as the adjudicator.orWe do not accept the appointment of [name proposed in Tender Data Sheet] as the Adjudicator,and propose instead that [name] be appointed as Adjudicator, whose daily fees and biographicaldata are attached.

We are not participating, as Tenders, in more than one Tender in this Tendering process other thanalternative Tenders in accordance with the Tendering documents.

Our firm, its affiliates or subsidiaries, including any subcontractors or suppliers for any part of thecontract has not been declared ineligible by the Kenya Government under Kenya’s laws or anyother official regulations.

This Tender and your written acceptance of it shall constitute a binding Contract between us.

We understand that you are not bound to accept the lowest or any Tender you receive.

We hereby confirm that this Tender complies with the Tender validity and Tender Securityrequired by the Tendering documents and specified in the Tender Data Sheet.

Authorized Signature:

Name and Title of Signatory:

Name of Tenderer:

Address:

B. Tender-Securing Declaration (Mandatory)

Date: [insert date (as day, month and year)]

Tender No.: [insert number of Tendering process]

Alternative No.: [insert identification No if this is a Tender for an alternative]

To: [insert complete name of Procuring Entity]

We, the undersigned, declare that:

We understand that, according to your conditions, Tenders must be supported by a Tender-

Securing Declaration.

We accept that we will automatically be suspended from being eligible for Tendering in any

contract with the Procuring Entity for the period of time of [insert number of months or years]

starting on [insert date], if we are in breach of our obligation(s) under the Tender conditions,

because we;

a) Have withdrawn our Tender during the period of Tender validity specified in the Form of

Tender; or

b) Having been notified of the acceptance of our Tender by the Procuring Entity during the

period of Tender validity,

(i). Fail or refuse to execute the Contract, if required, or

(ii). Fail or refuse to furnish the Performance Security, in accordance with the ITT.

We understand this Tender Securing Declaration shall expire if we are not the successful Tenderer,

upon the earlier of;

1) Our receipt of your notification to us of the name of the successful Tenderer; or

2) Thirty days after the expiration of our Tender.

Signed: [insert signature of person whose name and capacity are shown] In the capacity of [insert

legal capacity of person signing the Tender Securing Declaration]

Name: [insert complete name of person signing the Tender Securing Declaration]

Duly authorized to sign the Tender for and on behalf of: [insert complete name of Tenderer]

Dated on ____________ day of __________________, _______ [insert date of signing]

Corporate Seal (where appropriate)

Confidential Business Questionnaire

1 IndividualTenderer orIndividualMembers of jointVentures

1.1 Constitution or legal status of Tenderer: [attach copy]

Place of registration: [insert]

Principal place of business: [insert]

Power of attorney of signatory of Tender: [attach]

Registration certificate [attach] current Business License[attach]

1.2 Total annual volume of construction work performed in twoyears, in Kenyan shillings as specified in the Tender DataSheet; [insert]

1.3 Work performed as prime Contractor on works of a similarnature and volume over the last two years or as specified in theTender Data Sheet in Kenyan Shillings. Also list details ofwork under way or committed, including expected completiondates.

Project nameand country

Name of clientand contact

person

ContractorsParticipation

Type of workperformed and year

of completion

Value ofcontract

(a)

(b)

1.4 Major items of Contractor’s Equipment proposed for carryingout the works. List all information requested below. Referalso to sub-Clause 12.3 of the Instructions to Tenderers.

Item of equipment Description, make,and age (years)

Condition (new,good, Poor) and

number available

Owned, leased (fromwhom?) or to bepurchased (from

whom?)(a)

(b)

(c)

(d)

1.5 Qualifications and experience of key personnel proposed foradministration and execution of the Contract. Attachbiographical data. Refer also to sub-Clause 12.3 of theInstructions to Tenderers and Sub- Clause 10.1 of the GeneralConditions of Contract.

Position Name Years of Experience(general)

Years of experiencein proposed position

(a)

(b)

1.6 Proposed sub-contractor and firms involved. Refer to Clause 7of General Conditions of Contract.

Sections of theWorks

Value of subcontract Subcontractor (nameand address)

Experience in similarwork

(a)

(b)

1.7 Financial reports for the number of years specified in theTender Data Sheet.

1.8 Evidence of access to financial resources to meet thequalification requirements: cash in hand, lines of credit, etc.List below and attach copies of support documents.

1.9 Name, address, and telephone, e-mail address, and facsimilenumbers of banks that may provide references if contracted bythe Procuring Entity.

1.10 Information on current litigation in which the Tenderer isinvolved.

Other party(ies) Cause of dispute Amount involved(a)

(b)

1.11 Statement of compliance with the requirements of sub-Clause3.2 of the Instructions to Tenderers.

1.12 Proposed Program (work method and schedule). Descriptions,drawings, and charts, as necessary, to comply with therequirements of the Tendering documents.

2. Joint Ventures 2.1 The information listed in 1.1 – 1.11 above shall be provided foreach partner of the joint venture.

2.2 The information in 1.12 above shall be provided for the jointventure.

2.3 Attach the power of attorney of the signatory (ies) of theTender authorizing signature of the Tender on behalf of thejoint venture.

2.4 Attach the Agreement among all partners of the joint venture(and which is legally binding on all partners), which showsthat:

(a) all partners shall be jointly and severally liable forthe execution of the Contract in accordance with theContract terms;

(b) one of the partners will be nominated as being incharge, authorized to incur liabilities, and receiveinstructions for and on behalf of any and all partnersof the joint venture; and

(c) the execution of the entire Contract, includingpayment, shall be done exclusively with the partnerin charge.

3. AdditionalRequirements

3.1 Tenderers should provide any additional information requiredin the Tender Data Sheet or to fulfil the requirements of sub-Clauses 12.1 of the Instructions to Tenderers, if applicable.

C. Integrity Declaration

UNDERTAKING BY TENDERER ON ANTI – BRIBERY POLICY / CODE OFCONDUCT AND COMPLIANCE PROGRAMME

1. Each Tenderer must submit a statement, as part of the Tender documents, in either of the twogiven formats which must be signed personally by the Chief Executive Officer or otherappropriate senior corporate officer of the Tendering company and, where relevant, of itssubsidiary in the Kenya. If a Tender is submitted by a subsidiary, a statement to this effect willalso be required of the parent company, signed by its Chief Executive Officer or otherappropriate senior corporate officer.

2. Tenderers will also be required to submit similar No-bribery commitments from theirsubcontractors and consortium partners; the Tenderer may cover the subcontractors andconsortium partners in its own statement, provided the Tenderer assumes full responsibility.

3.a) Payment to agents and other third parties shall be limited to appropriate compensation

for legitimate services.

b) Each Tenderer will make full disclosure in the Tender documentation of thebeneficiaries and amounts of all payments made, or intended to be made, to agents orother third parties (including political parties or electoral candidates) relating to theTender and, if successful, the implementation of the contract.

c) The successful Tenderer will also make full disclosure [quarterly or semi-annually] ofall payments to agents and other third parties during the execution of the contract.

d) Within six months of the completion of the performance of the contract, the successfulTenderer will formally certify that no bribes or other illicit commissions have been paid.The final accounting shall include brief details of the goods and services provided thatthey are sufficient to establish the legitimacy of the payments made.

e) Statements required according to subparagraphs (b) and (d) of this paragraph will haveto be certified by the company's Chief Executive Officer, or other appropriate seniorcorporate officer.

4. Tenders which do not conform to these requirements shall not be considered.

5. If the successful Tenderer fails to comply with its No-bribery commitment, significantsanctions will apply. The sanctions may include all or any of the following:

a) Cancellation of the contract;

b) Liability for damages to the public authority and/or the unsuccessful competitors in theTendering possibly in the form of a lump sum representing a pre-set percentage of thecontract value (liquidated).

6. Tenderers shall make available, as part of their Tender, copies of their anti-BriberyPolicy/Code of Conduct, if any, and of their-general or project - specific - ComplianceProgram.

7. The Government of Kenya has made special arrangements for adequate oversight of theprocurement process and the execution of the contract, and has invited civil society and other

competent Government Departments to participate in the oversight. Those charged with theoversight responsibility will have full access to all documentation submitted by Tenderers forthis contract, and to which in turn all Tenderers and other parties involved or affected by theproject shall have full access (provided, however, that no proprietary information concerning aTenderer may be disclosed to another Tenderer or to the public).

ANTI-CORRUPTION DECLARATION COMITMENT/ PLEDGE

(Sections39, 40,41,42,43 & of the PPD Act, 2005)

I/We/Messrs…………………………………………………………………………….

of Street, Building, P O Box……………………………………………………………

…………………………………………………………………………………………..

Contact/Phone/E mail…………………………………………………………………..

declare that Public Procurement is based on a free and fair competitive Tendering process whichshould not be open to abuse.

I/We ..…………………………………………………………………………………..

declare that I/We will not offer or facilitate, directly or indirectly, any inducement or reward to anypublic officer, their relations or business associates, in connection with

Tender/Tender No ………………………..……………………………………………….

for or in the subsequent performance of the contract if I/We am/are successful.

Authorized Signature................................................................................................

Name and Title of Signatory……………………………………………………………

D. Letter of Acceptance

[Letter head paper of the Procuring Entity]

[date]

To: [name and address of the Contractor]

This is to notify you that your Tender dated [date] for execution of the [name of the Contract andidentification number, as given in the Contract Data Sheet] for the Contract Price of the equivalentof [amount in numbers and works] [name of currency], as corrected and modified in accordancewith the Instructions to Tenderers is hereby accepted by us.

We confirm that [insert name proposed by the procuring entity] to be the Adjudicator.

We accept that [name proposed by Tenderer] be appointed as Adjudicator.

Or

We do not accept that [name proposed by Tenderer] be appointed as adjudicator, and by sending acopy of this letter of acceptance to [insert the name of the Appointing Authority], we are herebyrequesting [name], the Appointing Authority, to appoint the adjudicator in accordance with Clause44.1 of the Instructions to Tenderers.

You are hereby instructed to proceed with the execution of the said works in accordance with theContract documents.

Please return the contract dully signed.

Authorized Signature:

Name and Title of Signatory:

Name of Agency:

Attachment: Form of Contract

E. Form of Contract Agreement

This Agreement, made the [day] day of [month], [year] between [name and address of ProcuringEntity] (hereinafter called “the Procuring Entity”) and [name and address of Contractor](hereinafter called “the Contractor”) of the other part.

Whereas the Procuring Entity is desirous that the Contractor execute [name and identificationnumber of contract] (hereinafter called “the Works”) with the objectives of [insert functionalobjectives of the works] and the Procuring Entity has accepted the Tender by the Contractor for theexecution and completion of such works and the remedying of any defects therein in the sum of[contract price in words and figures] (hereinafter called “Contract Price”).

NOW THIS AGREEMENT WITNESSES AS FOLLOWS:

1. In this Agreement, words and expressions shall have the same meanings as arerespectively assigned to them in the Conditions of Contract hereinafter referred to, andthey shall be deemed to form and be read and construed as pert of this Agreement;

2. In consideration of the payments to be made by the Procuring Entity to the Contractor ashereinafter mentioned, the Contractor hereby covenants with the Procuring Entity toexecute and complete the Works and remedy any defects therein in conformity in allrespects with the provisions of the Contract;

3. The Procuring Entity hereby covenants to pay the Contractor in consideration of theexecution and completion of the Works and the remedying of defects wherein the ContractPrice or such other sum as may become payable under the provisions of the Contract at thetimes and in the manner prescribed by the Contract.

In Witness whereof the parties thereto have caused this Agreement to be executed the day and yearfirst before written.

The Common Seal of

Was hereunto affixed in the presence of:

Signed, Sealed, and Delivered by the said

In the presence of:

Tendering Signature of Procuring Entity

Binding Signature of Contractor

SECTION XI: FORMS OF SECURITY

of 123

A. Tender Security (Bank or Insurance Guarantee)(Optional)

[If required, the Bank or Insurance Company/Tenderer shall fill in this Guarantee form in

accordance with the instructions indicated in brackets.]

[insert bank’s or insurance company’s name, and address of issuing branch or office]

Beneficiary: [insert name and address of Procuring Entity]

Date: [insert date]

TENDER GUARANTEE No.: [insert number]

We have been informed that [insert name of the Tenderer; if a joint venture, list complete

legal names of partners] (hereinafter called "the Tenderer") has submitted to you its Tender

dated [insert date] (hereinafter called "the Tender") for the execution of [insert name of

Contract] under Invitation for Tenders No. [insert IFT number] (“the IFT”).

Furthermore, we understand that, according to your conditions, Tenders must be supported by

a Tender Guarantee.

At the request of the Tenderer, we [insert name of bank or insurance company] hereby

irrevocably undertake to pay you any sum or sums not exceeding in total an amount of [insert

amount in figures expressed in the currency of the Purchaser’s Country or the equivalent

amount in an international freely convertible currency] ([insert amount in words]) upon

receipt by us of your first demand in writing accompanied by a written statement stating that

the Tenderer is in breach of its obligation(s) under the Tender conditions, because the

Tenderer;

a) Has withdrawn its Tender during the period of Tender validity specified by

the Tenderer in the Form of Tender; or

b) Does not accept the correction of errors in accordance with the Instructions to

Tenderers (hereinafter “the ITT”) of the IFT; or

c) Having been notified of the acceptance of its Tender by the Procuring Entity

during the period of Tender validity;

(i). Fails or refuses to execute the Contract Form, if required, or

(ii). Fails or refuses to furnish the Performance Security, in accordance

with the ITT.

This Guarantee shall expire;

a) If the Tenderer is the successful Tenderer, upon our receipt of copies of the

Contract signed by the Tenderer and of the Performance Security issued to

you by the Tenderer; or

b) If the Tenderer is not the successful Tenderer, upon the earlier of;

of 123

(i) Our receipt of a copy of your notification to the Tenderer that the

Tenderer was unsuccessful, or

(ii) Thirty days after the expiration of the Tenderer’s Tender.

Consequently, any demand for payment under this Guarantee must be received by us at the

office on or before that date.

_____________________________[signature(s) of authorized representative(s) ]

of 123

B. Performance Bank or Insurance Guarantee [Unconditional]

[The Bank or Insurance Company/successful Tenderer providing the Guarantee shall fill

in this form in accordance with the instructions indicated in brackets, if the Procuring Entity

requires this type of security.]

[insert bank’s or insurance company’s name, and address of issuing branch or office]

Beneficiary: [insert name and address of Procuring Entity]

Date: [insert date]

PERFORMANCE GUARANTEE No.: [insert Performance Guarantee number]

We have been informed that [insert name of Contractor] (hereinafter called "the Contractor")

has entered into Contract No. [insert reference number of the Contract] dated with you, for

the execution of [insert name of Contract and brief description of Works] (hereinafter called

"the Contract").

Furthermore, we understand that, according to the conditions of the Contract, a Performance

Guarantee is required.

At the request of the Contractor, we [insert name of Bank or Insurance Company] hereby

irrevocably undertake to pay you any sum or sums not exceeding in total an amount of [insert

amount in figures] ([insert amount in words]), such sum being payable in the types and

proportions of currencies in which the Contract Price is payable, upon receipt by us of your

first demand in writing accompanied by a written statement stating that the Contractor is in

breach of its obligation(s) under the Contract, without your needing to prove or to show

grounds for your demand or the sum specified therein.

We hereby waive the necessity of your demanding the said debt from the Contractor before

presenting us with the demand.

We further agree that no change, addition or other modification of the terms of the Contract or

of the Works to be performed there under or of any of the Contract documents which may be

made between you and the Contractor shall in any way release us from any liability under this

Guarantee, and we hereby waive notice of any change, addition, or modification.

This guarantee shall expirenot later than thirty days from the date of issuance of the Taking-

Over Certificate.

[signature(s) of an authorized representative(s) of the Bank or Insurance Company]

of 123

C. Bank or Insurance Guarantee for Advance Payment

[Bank’s or Insurance Company’s Name and Address of Issuing Branch or Office]

Beneficiary: ___________________ [Name and Address of Procuring Entity]

Date: ________________

ADVANCE PAYMENT GUARANTEE No.: _________________

We have been informed that [name of Contractor] (hereinafter called "the Contractor") has

entered into Contract No. [reference number of the contract] dated ______ with you, for the

execution of [name of contract and brief description of Works] (hereinafter called "the

Contract").

Furthermore, we understand that, according to the conditions of the Contract, an advance

payment in the sum [amount in figures] ( ) [amount in words] is to be made against an

advance payment guarantee.

At the request of the Contractor, we [name of Bank or Insurance Company] hereby

irrevocably undertake to pay you any sum or sums not exceeding in total an amount of

[amount in figures] ( ) [amount in words] upon receipt by us of your first demand

in writing accompanied by a written statement stating that the Contractor is in breach of its

obligation under the Contract because the Contractor used the advance payment for purposes

other than the costs of mobilization in respect of the Works.

We further agree that no change or addition to or other modification of the terms of the

Contract or of the Works to be performed thereunder or of any of the Contract documents

which may be made between ________________________[name of Procuring Entity] and

the Contractor, shall in any way release us from any liability under this guarantee, and we

hereby waive notice of any such change, addition or modification.

No drawing may be made by you under this guarantee until we have received notice in

writing from you that an advance payment of the amount listed above has been paid to the

Contractor pursuant to the Contract.

The maximum amount of this guarantee shall be progressively reduced by the amount of the

advance payment repaid by the Contractor as indicated in copies of interim statements or

payment certificates which shall be presented to us. This guarantee shall expire, at the latest,

upon our receipt of a copy of the interim payment certificate indicating that eighty (80)

percent of the Contract Price has been certified for payment, or on the ___ day of _____,

2___, whichever is earlier. Consequently, any demand for payment under this guarantee must

be received by us at this office on or before that date.

of 123

Yours truly,

Signature and seal:

Name of Bank or Insurance Company:

Address:

Date:

of 123

SECTION XII: APPLICATION TO PUBLIC PROCUREMENTADMINISTRATIVE REVIEW BOARD

of 123

FORM RB 1REPUBLIC OF KENYA

PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD

APPLICATION NO…………….OF……….….20……...

BETWEEN

……………………………………………………….APPLICANT

AND

…………………………………RESPONDENT (Procuring Entity)

Request for review of the decision of the…………… (Name of the Procuring Entity) of

……………dated the…day of ………….20……….in the matter of Tender No………..…of

…………..20…

REQUEST FOR REVIEW

I/We……………………………,the above named Applicant(s), of address: Physical

address…………….Fax No……Tel. No……..Email ……………, hereby request the Public

Procurement Administrative Review Board to review the whole/part of the above mentioned

decision on the following grounds , namely:-

1.

2.

etc.

By this memorandum, the Applicant requests the Board for an order/orders that: -

1.

2.

etc

SIGNED ………………. (Applicant)

Dated on…………….day of ……………/…20…

FOR OFFICIAL USE ONLY

Lodged with the Secretary Public Procurement Administrative Review Board on …………

day of ………....20….………

SIGNEDBoard Secretary

ACTION AFRICA HELP INTERNATIONAL -KAKUMA TENDER …

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