County Government of Nyandarua

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COUNTY GOVERNMENT OF

NYANDARUA
DEPARTMENT OF INDUSTRIALIZATION,
TRADE, COOPERATIVES AND URBAN
DEVELOPMENT
www.nyandarua.go.ke
PO BOX 701-20303 OLKALOU Telephone: 0202660859 Email: info@nyandarua.go.ke

THE COUNTY GOVERNMENT OF NYANDARUA


DEPARTMENT OF INDUSTRIALIZATION, TRADE, COOPERATIVES AND URBAN
DEVELOPMENT.

TENDER DOCUMENT

FOR

PROPOSED DESIGN & CONSTRUCTION, SUPPLY, DELIVERY, INSTALLATION OF


EQUIPMENT, COMMISSIONING & TRAINING OF POTATO AND VEGETABLE
PROCESSING PLANT.

TENDER NEGOTIATION NO; 834198-2020/2021

DECEMBER 2020

TABEL OF CONTENTS

SECTION I - INVITATION TO TENDER ......................................................................................... 2


SECTION II(A) - INSTRUCTIONS TO TENDERERS .................................................................... 4

SECTION II(B) -APPENDIX TO INSTRUCTIONS TO TENDERERS ....................................... 19

SECTION III - REQUEST FOR PROPOSAL FOR DESIGN/BUILD CONTRACT .................. 25

SECTION IV (A) - BACKGROUND AND PRELIMINARY INFORMATION ........................... 50

SECTION IV(B) - ................................................................................................................................ 52

SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING PLANT ........................ 52

SECTION V – EVALUATION CRITERIA ...................................................................................... 60

SECTION VI - CONDITIONS OF CONTRACT ............................................................................ 63

SECTION VII – APPENDIX TO CONDITIONS OF CONTRACT .............................................. 82

(10). SECTION IV - REQUEST FOR PROPOSAL FOR DESIGN/BUILD CONTRACT .......... 82

SECTION VIII - STANDARD FORMS ............................................................................................ 84

SECTION I - INVITATION TO TENDER

Tender No.
Tender Name PROPOSED DESIGN & CONSTRUCTION, SUPPLY, DELIVERY,
INSTALLATION, COMMISSIONING AND TRAINING OF POTATO
AND VEGETABLE PROCESSING PLANT.

1.1 The County Government of Nyandarua, here and in the subsequent sections referred to
as the procuring entity now invites Tenders from eligible candidates for the PROPOSED
DESIGN & CONSTRUCTION, SUPPLY, DELIVERY, INSTALLATION,

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COMMISSIONING AND TRAINING OF POTATO AND VEGETABLE
PROCESSING PLANT at OL’KALOU. The tender is an International Open Tender.

1.2 Interested eligible candidates may download a complete set of tender documents from
the county government web-portal www.nyandarua.go.ke and or the national
government procurement information web-portal www.tenders.go.ke using the unique
IFMIS Negotiation Number indicated in the tender advert free of charge. Candidates
may obtain further information and inspect tender documents and specifications from
the Supply-Chain Management Office, Department of Trade, Industrialization,
Cooperatives and Urban Development located at Ardhi house in Olkalou.

1.3 Prices quoted should be net inclusive of all taxes, must be in Kenya shillings and shall
remain valid for 120 days from the closing date of tender;

1.4 Tenders must be accompanied by a security from a Bank or insurance company


approved by PPRA of KES 4,000,000 (Four million shillings) in the format as
prescribed under Section III (B) - Appendix to Instructions to Tenderers. The Tender
security should be valid for 150 days from the deadline of submission of the tender;

1.5 Completed tender documents must be submitted through the Government of Kenya
(G.O.K) IFMIS supplier portal- www.suupplier.treasury.go.ke as per the stated
requirements so as to be received on or before the date and time indicated in the
IFMIS portal (local time). The EXACT REPLICA of the uploaded complete tender
document MUST be submitted in hard copy both in ‘ORIGINAL’ and ‘COPY OF
ORIGINAL’. In case of discrepancy between the submitted tender document in the
IFMIS platform and the submitted hardcopy, the details of the uploaded copy SHALL
PREVAIL.
The complete tender document MUST also be enclosed in plain sealed envelopes
marked with Tender Name and Reference Number and deposited in the Tender Box
at the Nyandarua County Government Headquarters in Ol’kalou reception area or be
addressed addressed to:

THE CHIEF OFFICER, INDUSTRIALIZATION, TRADE,


COOPERATIVES AND URBAN DEVELOPMENT
COUNTY GOVERNMENT OF NYANDARUA
P.O BOX 701-20303,
OL KALOU
Tenders will be opened immediately thereafter in the presence of the candidates or their

representatives who choose to attend. Tenderers may request for clarifications via email;

procurement@nyandarua.go.ke.

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SECTION II (A) - INSTRUCTIONS TO TENDERERS

1. GENERAL

1.1. Definitions

(a) “Tenderer” refers to any person or persons, partnership or company submitting


a tender for the project acting directly or through a legally appointed
representative.
(b) “Accepted tenderer” refers to the tenderer who is approved by the procuring
entity.
(c) “Procuring entity” refers to (name of procuring entity).

1.2. Eligibility and quantification of tenders

1.2.1. To be eligible and qualified the tender shall provide evidence satisfactory to the
procuring entity of its eligibility, capability and adequacy of resources to effectively
perform the subject contract. To this end, the tenderer shall be required to submit a
“technical proposal” which will include the following information:

(a) Details of experience and past performance of works of similar nature in the
last five years and details of any current work on hand.
(b) The qualifications and experience of key personnel proposed for
administration and execution of the contract both on and off site.
(c) Major items of construction plant and equipment proposed for use in the
performance of the contract. The tenderer will also indicate on the schedule
when each item will be available on the works. Included also should be a
schedule of plant, equipment and materials to be imported for the purpose of
the contract, giving details of make, type, and CIF value as appropriate.
(d) Details of subcontractors to whom it is proposed to sub-contract any portion of
the contract and for whom authority will be required for such subcontracting
in accordance with the conditions of contract.
(e) A draft programme of works in the form of a bar chart and schedule of
payment, which shall form part of the contract if the tender is accepted. Any
change in the programme or schedule shall be subject to the approval of the
Procuring entity.
(f) Details of any current litigation or arbitration proceedings in which the
tenderer is involved as one of the parties.
(g) Financial capability including financial reports for the last four years.

1.2.2. Joint Venture

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Tenders submitted by a joint venture of two or more firms as partners shall comply
with the following requirements;

(a) The tender and in cause of a successful tender, contract form shall be signed
so as to be legally binding on all partners.
(b) One of the partners shall be nominated as being lead contractor, and this
authorization shall be evidenced by submitting a power of attorney signed by
legally authorized signatories of all the partners.
(c) The lead contractor shall be authorized to incur liability and receive
instructions for and on behalf of any and all the partners of the joint venture
and the entire execution of the contract including payment shall be done
exclusively with the lead contractor.
(d) All partners of the joint venture shall be liable jointly and severally for the
execution of the contract in accordance with the contract terms, and a relevant
statement to this effect shall be included in the authorization mentioned in (b)
above as well as in the form of tender and the contract form (in case of the
accepted tender).
(e) A copy of the contract entered into by the joint venture partners shall be
submitted with the tender.

1.2.3. The procuring entity’s employees, committee members, board members and their
relative (spouse and children) are not eligible to participate in the tender.

1.2.4. A tenderer who gives false information in the tender document about its qualification
or who refuses to enter into a contract after notification of contract award shall be
considered for debarment from participating in future public procurement.

1.3. Cost of Tendering

1.3.1. The tenderer shall bear all costs associated with the preparation and submission of its
tender and the procuring entity will in no case be liable for those costs, regardless of
the conduct or outcome of the tendering process.

1.3.2. The price to be charged for the tender document shall not exceed KES 5,000.00.

1.3.3. The procuring entity shall allow the tenderer to view the tender document free of
charge before purchase.

1.4. Site Visit

1.4.1. The bidder(s) are advised to familiarize themselves with local conditions and take
them into account in preparing their proposals.

1.4.2. The tenderer and any of its personnel or agent will be granted permission by the
procuring entity to enter upon premises and lands for the purpose of such inspection,
but only upon the express condition that the tenderer, its personnel or agents, will

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release and indemnify the procuring entity from and against all liability in respect of
and will be responsible for personal injury (whether fatal or otherwise), loss of or
damage to property and any other loss, damage, costs and expenses however caused,
which but for the exercise of such permission, would not have arisen.

1.4.3. The procuring entity shall organize for the site visit on the request of bidders within
the official working hours. The representative will not be available at any other time
for site inspection visits. Tenderers must provide their own transport and any other
logistics.

TENDER DOCUMENTS

1.5. Contents of Tender documents

1.5.1. The tender documents comprise the documents listed here below and should be read
together with any addenda issued in accordance with clause 7 of these instructions to
tenderers.

The tender documents consist of two parts: -

SECTION IV - “TECHNICAL PROPOSAL” consists of: -

(a) Conditions of contract


(b) Appendix to conditions of Contract
(c) Specifications
(d) Standard Forms

SECTION V “FINANCIAL PROPOSAL” consists of: -

(a) Form of tender


(b) Appendix to Form of Tender
(c) Performance questionnaire form
(d) Contract Form
(e) Advance payment Bank Guarantee Form
(f) Preliminaries
(g) Bills of quantities
(h) Drawings
(i) Main summary page
(j) Annexures

1.5.2. The tenderer is expected to examine carefully all instructions, conditions, forms,
terms specifications and drawings in the tender documents. Failure to comply with the
requirements for tender submission will be at the owner risk. Pursuant to clause 1.23
of Instructions to tenderers, tenders which are not substantially responsive to
requirements of the tender documents will be rejected.

1.5.3. All recipients of documents for the proposed contract for the purpose of submitting a
tender (whether they submit a tender or not) shall treat the details of the documents as
“private and confidential”.

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1.5.4. The procuring entity shall allow the tenderer to review the tender document free of
charge before purchase.

1.5.5. The price to be charged for the tender document shall not exceed KES 5,000.

1.6. Inquiries by tenderers

1.6.1. A tenderer making an inquiry relating to the tender documents may notify the
procuring entity in writing by fax or email at the procuring entity’s mailing address
indicated in the invitation to tender. The procuring entity will respond in writing to
any request for clarification which is received earlier than 7 days prior to the deadline
for the submission of tenders. Written copies of the procuring entity’s response
(including the inquiry but without identifying the source of the entity) will be sent to
all respective tenderers who have purchased the tender documents. If a candidate
sends an inquiry after the stated days, the procuring entity shall have the option of
responding to the inquiry and extension of the date of submission of tenders or
ignoring it.

1.6.2. The tender evaluation committee shall evaluate the tender within 30 days of the
validity period from the date of opening the tender.

1.6.3. The procuring entity shall reply to any clarifications sought by the tenderer within 3
days of receiving the request to enable the tenderer to make timely submission of its
tender.

1.7. Amendment of Tender Documents.

1.7.1. At any time prior to the deadline for submission of tenders the procuring entity may,
for any reason, whether at its own initiative or in response to a clarification requested
by a prospective tenderer, modify the tender documents by issuing Addenda.

1.7.2. Any Addendum will be publicized in at least one newspaper of nationwide circulation
and in the County website.

1.7.3. In order to allow prospective tenderers reasonable time in which to take the
Addendum into account in preparing their tenders, the employer may, at his
discretion, extend the deadline for the submission of tenders.

PREPARATION OF TENDERS

1.8. Language of Tender

1.8.1. The tender and all correspondence and documents relating to the tender exchanged
between the tenderer and the procuring entity shall be written in the English language.
Supporting documents are printed literature furnished by the tenderer with the tender
may be in another language provided they are accompanied by an appropriate

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translation of pertinent passages in the above stated language. For the purpose of
interpretation of the tender, the English language shall prevail.

1.9. Documents Comprising the Tender

1.9.1. The Forms, Bills of Quantities and Schedules submitted with the tender documents
shall be used without exception (subject to extensions of the schedules in the same
format and to the provisions of clause 1.13.2 regarding the alternative forms of tender
security.

1.10. Tender Prices

1.10.1. All the insertions made by the tenderers shall be made in INK and the tenderer shall
clearly form the figures. The relevant space in the Form of Tender shall be completed
accordingly without interlineations or erasures except those necessary to correct errors
made by the tenderer in which case the erasures and interlineations shall be initialed
by the person or persons signing the tender.

1.10.2. A price or rate shall be inserted by the tenderer for every item in the Bills of
Quantities whether the quantities are stated or not items against which no rate or price
is entered by the tenderer will not be paid for by the procuring entity when executed
and shall be deemed covered by the rates for other items and prices in the Bills of
Quantities.

The prices and unit rates in the Bills of Quantities are to be the full [all-inclusive]
value of the work described under the items, including all costs and expenses which
may be necessary and all general risks, liabilities and obligations set forth or implied
in the documents on which the tender is based. All duties and taxes and other levies
payable by the tenderer under the Contract or for any other cause prior to the deadline
for the submission of tenders, shall be included in the rates and prices and the total
tender prices submitted by the Tenderer.

Each price or unit rate inserted in the Bills of Quantities should be a realistic estimate
for completing the activity or activities described under that particular item and the
tenderer is advised against inserting a price or rate against any item contrary to these
instructions.

Every rate entered in the Bills of Quantities, whether or not such rate be associated
with quantity, shall form part of the Contract. The procuring entity shall have the
right to call for any item of work contained in the Bills of Quantities, and such items
of work to be paid for at the rate entered by the tenderer and it is the intention of the
procuring entity to take full advantage of unbalanced low rates.

1.10.3. Unless otherwise specified the tenderer must enter the amounts representing 10% of
the sub-total to the summary of the Bills of Quantities for Contingencies and
Variation of Prices [V.O.P] payments in the summary sheet and add them to the sub-
total to arrive at the tender amount.

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1.10.4. The tenderer shall furnish with his tender written confirmation from his suppliers or
manufacturers of unit rates for the supply of items listed in the Conditions of Contract
where appropriate.

1.10.5. The rates and prices quoted by the tenderer are subject to adjustment during the
performance of the Contract only in accordance with the provisions of the Conditions
of Contract. The tenderer shall complete the schedule of basic rates and shall submit
with his tender such other supporting information as required of the Conditions of
Contract.

1.10.6. Where quantity contract variation is allowed, the variation shall not exceed 15% of
the original contract price.

1.10.7. Price variation requests shall be processed by the procuring entity within 30 days of
receiving the request.

1.11. Currencies of Tender and Payment

1.11.1. Tenders shall be priced in Kenya Shillings and the tender sum shall be in Kenya
Shillings

1.11.2. Tenderers are required to indicate in the Statement of Foreign Currency


Requirements, which forms part of the tender, the foreign currency required by them.
Such currency should generally be the currency of the country of the tenderer’s main
office. However, if a substantial portion of the tenderer’s expenditure under the
Contract is expected to be in a currency other than his country of origin, then he may
state a corresponding portion of the contract price in the currency of those other
countries. However, the foreign currency element is to be limited to two (2) different
currencies and a maximum of 30% (thirty percent) of the Contract Price.

1.11.3. The rate or rates of exchange used for pricing the tender shall be selling rate or rates
of the Central Bank ruling on the date thirty (30) days before the final date of for the
submission of tenders.

1.11.4. Tenderers must enclose with their tenders, a brief justification of the foreign currency
requirements stated in their tenderers.

1.12. Tender Validity

1.12.1. The tender shall remain valid and open for acceptance for a period of One Hundred
and Twenty (120) days from the specified date of tender opening or from the extended
date of tender opening (in accordance with clause 1.6.3 here above) whichever is the
later.

1.12.2. In exceptional circumstances prior to expiry of the original tender validity period, the
Employer may request the tenderer for a specified extension of the period of validity.
The request and the responses thereto shall be made in writing or by cable, telex or
facsimile. A tenderer may refuse the request without forfeiting his Tender Surety. A

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tenderer agreeing to the request will not be required nor permitted to modify his/her
tender, but will be required to extend the validity of his Tender Surety
correspondingly.

1.13. Tender Security

1.13.1. The tenderer shall furnish as part of his tender, a Tender security in the amount stated
in the Appendix to Instructions to Tenderers but will not exceed two (2) percent of the
tender price.

1.13.2. The Tender security shall be valid for at least thirty (30) days beyond the tender
validity period.

1.13.3. Any tender not accompanied by an acceptable Tender Security will be rejected by the
Employer as non-responsive.

1.13.4. The Tender Securities of unsuccessful tenderers will be returned as promptly as


possible as but not later than twenty-eight (28) days after concluding the Contract
execution and after a Performance Security has been furnished by the successful
tenderer. The tender security of the successful tenderer will be returned upon the
tenderer executing the Contract and furnishing the required Performance Security.

1.13.5. The Tender Security may be forfeited under the following circumstances:

(a) if a tenderer withdraws his tender during the period of tender validity; or
(b) in the case of a successful tenderer, if he fails;
i. to sign the Agreement, or;
ii. to furnish the necessary Performance Security
(c) If a tenderer does not accept the correction of his tender price pursuant to
clause 1.23.

1.13.6. The tender security shall be in the amount of 0.5 – 2 per cent of the tender price.

1.14. No Alternative Offers

1.14.1. The tenderer shall submit an offer which complies fully with the requirements of the
tender documents unless otherwise provided for in the appendix. Only one tender
may be submitted by each tenderer either by himself or as partner in a joint venture.
1.14.2. The tenderer shall not attach any conditions of his own to his tender. The tender price
must be based on the tender documents. The tenderer is no required to present
alternative construction options and he shall use without exception the Bills of
Quantities as provided, with the amendments as notified in tender notices, if any, for
the calculation of his tender price.

Any tenderer who fails to comply with this clause will be disqualified.

1.15. Format and Signing of Tender

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1.15.1. The tenderer shall prepare his tender as outlined in clause 9 above and mark
appropriately one set “ORIGINAL “and the other “COPY”.

1.15.2. The copy of the Proposal shall be typed or written in indelible ink and shall be signed
by a person or persons duly authorized to sign on behalf of the tenderer. All pages of
the tender where amendments have been made shall be initialed by the person or
persons signing the tender.

1.15.3. The complete tender shall be without alterations, interlineations or erasures, except as
necessary to correct errors made by the tender, in which case such corrections shall be
initialed by the person of persons signing the tender.

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SUBMSSION OF TENDERS

1.16. Sealing and Marking of Tenders

1.16.1. The tenderer shall seal the TECHINICAL PROPOSAL AND FINANCIAL
PROPOSAL of the tender in separate envelopes duly marked technical proposal and
financial proposal. The envelope shall then be sealed in an outer envelope.

1.16.2. The inner and outer envelopes shall be addressed to the procuring entity at the address
stated in the Appendix to Instructions to Tenderers and bear the name and
identification of the Contract stated in the said Appendix with a warning not to open
before the date and time for opening of tenders stated in the said Appendix.

1.16.3. The inner envelopes shall each indicate the name and address of the tenderer to enable
the tender to be returned unopened in case it is declared “late”, while the outer
envelope shall bear no mark indicating the identity of the tenderer.

1.16.4. If the outer envelope is not sealed and marked as instructed above, the Employer will
assume no responsibility for the misplacement or premature opening of the tender. A
tender opened prematurely for this cause will be rejected by the procuring entity and
return to the tenderer.

1.17. Deadline for Submission of Tenders

1.17.1. Tenderers must be received by the procuring entity at the address specified in the
Section I – Invitation to Tender

Tenderers delivered by hand must be place in the “tender box” provided in the office
of the Employer.

Proof of posting will not be accepted as proof of delivery and any tender delivered
after the above stipulated time, from whatever cause arising will not be considered.

Bulky tenders which cannot be placed in the tender box will be received by the
procuring entity as indicated in the Appendix to instructions to tenders.

1.17.2. The procuring entity may at its discretion, extend the deadline for the submission of
tenders through the issue of an Addendum, in which case all rights and obligations of
the Employer and the tenderers previously subject to the original deadline shall
thereafter be subjected to the new deadline as extended.
1.17.3. Any tender received by the procuring entity after the prescribed deadline for
submission of tenders will be returned unopened to the tenderer.

1.18. Modification and Withdrawal of Tenders

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1.18.1. The tenderer may modify or withdraw his tender after tender submission, provided
that written notice of the modification or withdrawal is received by the Employer
prior to the prescribed deadline for submission of tenders.

1.18.2. The tenderer’s modification or withdrawal notice shall be prepared, sealed, marked
and dispatched in accordance with the provisions for the submission of tenders, with
the inner and outer envelopes additionally marked “MODIFICATION” or
“WITHDRAWAL” as appropriate.

1.18.3. No tender may be modified subsequent to the deadline for submission of tenders.

1.18.4. No tender may be withdrawn in the interval between the deadline for submission of
tenders and the period of tender validity specified on the tender form. Withdrawal of
a tender during this interval will result in the forfeiture of the Tender Surety.

1.18.5. Subsequent to the expiration of the period of tender validity prescribed by the
Employer, and the tenderer having not been notified by the Employer of the award of
the Contract or the tenderer does not intend to conform with the request of the
Employer to extend the period of tender validity, the tenderer may withdraw his
tender without risk of forfeiture of the Tender Surety.

TENDER OPENING AND EVALUATION

1.19. Tender Opening

1.19.1. The Employer will open the tenders in the presence of the tenderers’ representatives
who choose to attend at the time and location indicated in the Invitation to Tender.
The tenderers’ representatives who are present shall sign a register evidencing their
attendance.

1.19.2. Tenders for which an acceptable notice of withdrawal has been submitted, pursuant to
clause 1.18 will not be opened. The Employer will examine the tenders to determine
whether they are complete, whether the requisite Tender Securities have been
furnished, whether the documents have been properly signed and whether the tenders
are generally in order.

1.19.3. At the tender opening, the Employer will announce the tenderer’s names, Tender
Security and such other details as the Employer, at his discretion, may consider
appropriate. No tender shall be rejected at the tender opening except for late tenders.

1.19.4. The Employer shall prepare minutes of the tender opening including the information
disclosed to those present.

1.19.5. Tenders not opened and read out at tender opening shall not be considered further for
evaluation, irrespective of the circumstances. Any tender recited after the deadline for
submission of tender shall be returned to the tender unopened.

1.20. Process to be Confidential

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1.20.1. After the public opening of tenders, information relating to the examination,
clarification, evaluation and comparisons of tenders and recommendations concerning
the award of Contract shall not be disclosed to tenders or other persons not officially
concerned with such process until the award of Contract is announced.

1.20.2. Any effort by a tenderer to influence the Employer in the process of examination,
evaluation and comparison of tenders and decisions concerning award of Contract
may result in the rejection of the tenderer’s tender.

1.21. Clarification Tenders

1.21.1. To assist in the examination, evaluation and comparison of tenders, the Employer may
ask tenderers individually for clarification of their tenders, including breakdown of
unit prices. The request for clarification and the response shall be in writing or by
cable, facsimile or telex, but no change in the price or substance of the tender shall be
sought, offered or permitted except as required to confirm the correction of
arithmetical errors discovered by the employer during the evaluation of the tenders in
accordance with clause 24.

1.21.2. No Tender shall contact the Employer on any matter relating to his tender from the
time of the tender opening to the time the Contract is awarded. If the tenderer wishes
to bring additional information to the notice of the Employer, he shall do so in
writing.

1.22. Determination of Responsiveness

1.22.1. Prior to the detailed evaluation of tenders, the Employer will determine whether each
tender is substantially responsive to the requirements of the tender documents.

1.22.2. For the purpose of this clause, a substantially responsive tender is one which
conforms to all the terms, conditions and specification of the tender documents
without material deviation or reservation. A material deviation or reservation is one
which affects in any substantial way the scope, qualify, completion timing or
administration of the Works to be undertaken by the tenderer under the Contract, or
which limits in any substantial way inconsistent with the tender documents, the
Employer’s rights or the tenderers obligations under the Contract and the rectification
of which would affect unfairly the competitive position of other tenderers who have
presented substantially responsive tenders.

1.22.3. Each price or unit rate inserted in the Bills of Quantities shall be a realistic estimate
of the cost of completing the works described under the particular item including
allowance for overheads, profits and the like. Should a tender be seriously
unbalanced in relation to the Employer’s estimate of the works to be performed under
any item or groups of items, the tender shall be deemed not responsive.

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1.22.4. A tender determined to be not substantially responsive will be rejected by the
Employer and may not subsequently be made responsive by the tenderer by correction
of the non-conforming deviation or reservation.

1.23. Correction of Errors

Tenders determined to substantially responsive shall be checked by the Employer for


any arithmetic errors in the computations and summations. Errors will be corrected
by the Employer as follows;

(a) Where there is a discrepancy between the amount in figures and the amount in
words, the amount in words will govern.
(b) Where there is a discrepancy between the unit rate and the line item total
resulting from multiplying the unit rate by the quantity, the unit rate as quoted
will prevail, unless in the opinion of the Employer, there is an obvious
typographical error, in which case adjustment will be made to the entry
containing that error.
(c) The amount stated in the tender will be adjusted in accordance with the above
procedure for the correction of errors and, with concurrence of the tenderer,
shall be considered as binding upon the tenderer. If the tenderer does not
accept the corrected amount, the tender may be rejected and the Tender
Security may be forfeited in accordance with clause 1.13.

1.24. Conversion to Single Currency

1.24.1. For comparison of tenders, the tender price shall first be broken down into the
respective amounts payable in various currencies by using the selling rate or rates of
the Central Bank of Kenya ruling on the date twenty-one (21) days before the final
date for the submission of tenders.

1.24.2. The Employer will convert the amounts in various currencies in which the tender is
payable (excluding provisional sums but including Day works where priced
competitively) to Kenya Shillings at the selling rates stated in clause 1.25.1

1.25. Evaluation and Comparison of Tenders

1.25.1. The Employer will evaluate only tenders determined to be substantially responsive to
the requirements of the tender documents in accordance with clause 1.23

1.25.2. In evaluating tenders, the Employer will determine for each tender the evaluated
tender price by adjusting the tender price as follows

(a) Making any correction for errors pursuant to clause 1.24


(b) Excluding Provisional Sums and provision, if any, for Contingencies in the
Bills of Quantities, but including Day works where priced competitively.

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1.25.3. The Employer reserves the right to accept any variation, deviation or alternative offer.
Variations, deviations, alternative offers and other factors which are in excess of the
requirements of the tender documents or otherwise result in the accrual of unsolicited
benefits to the Employer, shall not be taken into account in tender evaluation.

1.25.4. Price adjustment provisions in the Conditions of Contract applied over the period of
execution of the Contract shall not be taken into account in tender evaluation.

1.25.5. If the lowest evaluated tender is seriously unbalanced or front loaded in relation to the
Employer’s estimate of the items of work to be performed under the Contract, the
Employer may require the tenderer to produce detailed price analyses for any or all
items of the bills of Quantities, to demonstrate the relationship between those prices,
proposed construction methods and schedules. After evaluation of the price analyses,
the Employer may require that the amount of the Performance Security set forth in
clause 3.29 be increased at the expense of the successful tenderer to a level sufficient
to protect the Employer against financial loss in the event of subsequent default of the
successful tenderer under the Contract.

1.25.6. Firms incorporated in Kenya where indigenous Kenya’s own 51% or more of the
share capital shall be allowed a 10% preferential bias provided that they do not sub-
contract work valued at more than 50% of the Contract Price excluding Provisional
Sums to a non-indigenous sub-contract.

1.25.7. The tender evaluation committee shall evaluate the tender within 30 days of the
validity period from the date of opening the tender.

1.25.8. The procuring entity may at any time terminate procurement proceedings before
award and shall not be liable to any person for the termination.

1.25.9. The procuring entity shall give prompt notice of the termination to the tenderers and
on request give its reasons for termination within 14 days of receiving the request
from any tenderer.

1.25.10. Persons not officially involved in the evaluation of tender shall not attempt in any
way to influence the evaluation.

1.25.11. Any person who has a conflict of interest with respect to the procurement shall
not participate in the procurement proceedings.

AWARD OF CONTRACT

1.26. Award

1.26.1. Subject to clause 1.27.2 the Employer will award the Contract to the tenderer whose
tender is determined to be substantially responsive to the tender documents and who
has offered the lowest evaluated tender price subject to possessing the capability and
resources to effectively carry out the Contract Works.

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1.26.2. The Employer reserves the right to accept or reject any tender, and to annual the
tendering process and reject all tenders, at any time prior to award of Contract,
without thereby incurring any liability to the affected tenderers or any obligation to
inform the affected tenderers of the grounds for the Employer’s action.

1.27. Notification of Award and Signing of the Contract

1.27.1. Prior to the expiration of the period of tender validity prescribed by the Employer, the
Employer will notify the successful tenderer by cable, tealeaf or telex and confirmed
in writing by registered letter that his tender has been accepted. This letter
(hereinafter and in all Contract documents called “Letter of Acceptance”) shall name
the sum (hereinafter and in all Contract documents called “the Contract Price”) which
the Employer will pay to the Contractor in consideration of the execution and
completion of the Works as prescribed by the Contract.

1.27.2. Notification of award will constitute the formation of the Contract subject to the
parties signing the contract.

1.27.3. Upon the furnishing of a Performance Security by the successful tenderer, the
unsuccessful tenderers will promptly be notified that their tenders have been
unsuccessful.

1.27.4. Within twenty eighth (28) days of receipt of the contract form from the Employer the
successful tenderer shall sign the form and return it to the employer together with the
required Performance Security.

3.25.1 The parties to the contract shall have it signed within 30 days from the date of
notification of contract award unless there is an administrative review request.

1.28. Performance Guarantee

1.28.1. Within Twenty-eight (28) days of receipt of the notification of award from the
Employer, the successful tenderer shall furnish the employer with a Performance
Security in an amount stated in the Appendix to Instructions to Tenderers.
1.28.2. The Performance Security to be provided by the successful tenderer shall be an
unconditional Bank Guarantee issued at the tenderer’s option by an established and a
reputable Bank approved by the Employer and located in the Republic of Kenya and
shall be divided into two.

1.29. Advance Payment

An advance payment if approved by the employer shall be made under the contract in
accordance with the conditions of contract.

1.30. Corrupt or fraudulent practices

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The procuring entity requires that tenderers observe the highest standard of ethics
during the procurement process and execution of contract. A tenderer shall sign a
declaration that he has not and will not be involved in corrupt and fraudulent
practices.

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SECTION II (B) -APPENDIX TO INSTRUCTIONS TO TENDERERS
1.1. General;
Where there is a contradiction between Section II (A) – Instructions to Tenderers and Section II (B) - Appendix to Instructions to
Tenderers, the latter shall be the reference;
1.2. The following are amendments to Section II – Instructions to Tenderers shall abide;
# INSTRUCTIONS PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS
TO
TENDERERS
REFERENCE
1 1.2.1 Deleted. Replaced with requirements under Section 1.3 Table 1 – Mandatory Requirements of this appendix and below.
2 1.3.2 Interested tenderers may obtain Tender Documents in line with Section I – Invitation to Tender. A printed copy may be
obtained at a cost of KES1, 000 otherwise Tender Documents may be obtained from the Procuring Entity’s website free of
charge.
3 1.4 Add 1.4.4. Site visit shall not be mandatory.
4 1.5.1 The tender document shall also comprise of;
SECTION I - INVITATION TO TENDER & THE TENDER ADVERT
SECTION II - BACKGROUND AND PRELIMINARY INFORMATION
SECTION III- INSTRUCTIONS TO TENDERERS
SECTION III(B) -APPENDIX TO INSTRUCTIONS TO TENDERERS
SECTION IV - REQUEST FOR PROPOSAL AND DESIGN/BUILD CONTRACT REQUIREMENTS
SECTION V(B) - APPENDIX TO REQUEST FOR PROPOSAL AND DESIGN/BUILD CONTRACT
REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING PLANT
SECTION VI - CONDITIONS OF CONTRACT
SECTION VI(B) - APPENDIX TO SPECIAL CONDITIONS OF CONTRACT
SECTION VII – EVALUATION CRITERIA
SECTION VIII - STANDARD FORMS
5 1.5.5 Interested tenderers may obtain Tender Documents in line with Section I – Invitation to Tender. A printed copy may be
obtained at a cost of KES1, 000 otherwise Tender Documents may be obtained from the Procuring Entity’s website free of
charge.
6 1.6.3 Request for clarifications should be send to the procuring agent to as to be received 6 days before closing deadline of the
tender.
7 1.13.1/2/6 The tender security shall be in the amount as specified under Section I – Invitation to Tender. The tenderer security MUST
be submitted in the format prescribed under Section VIII – Standard Forms – Form of Tender Security. A letter of credit
may also suffice.
8 1.23 There shall not be correction of arithmetical errors. The amounts as quoted under the Form of Tender shall remain final. If
the Form of Tender has not been completed with the tender price, no bid price shall be read during tender opening.
9 1.26 Add;
1.26.3. Award Criteria shall be in line with this appendix under Section 1.4
10 1.28.1 The performance security shall be in line with Section VI – Conditions of Contract.
11 1.29 The contractor shall provide Advance Payment Guarantee strictly in the form under Section VIII- Standard Forms BANK
Guarantee for Advance Payment.
1.3 In order to be considered for further evaluation, the tenderer shall provide to the procuring entity the items below under Table 1 -
Mandatory Requirements. This shall form the Mandatory Responsiveness Evaluation. Tenderers MUST provide all items under
this requirement.

Sub-Factor Requirement Bidder Documentation Required Provided


Single Joint Venture (Y/N)/ or
Entity All Each At least 1 N/A
partners partner partner
combined
Statutory and General Requirements
No. of Bidder must submit number Must meet Must meet N/A N/A Delete the whole of line 1.16.1
documents of documents as requested requirement requireme of Section III – Instructions to
under this appendix nt Tenderers and replace with
‘Number of documents, TWO in
number, one (1) original, one (1)
copy under ONE ENVELOPE
system’ The outer envelope
should indicate the name and
number of the tender and be
addressed to the procuring entity
in line with Section I – Invitation
to Tender.

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Sub-Factor Requirement Bidder Documentation Required Provided
Single Joint Venture (Y/N)/ or
Entity All Each At least 1 N/A
partners partner partner
combined
Registration Bidder Must be a legally Must meet N/A Must meet N / A  Certificate of Incorporation or
as a Company constituted firm and must requirement requireme equivalent;
have been in operation for at nt  Fully completed - confidential
least 3 years as per Business Questionnaire – Section
certificate of VIII of Standard Forms
incorporation
Tax Bidder MUST be Tax Must meet N/A Must meet N/A Current and valid Tax
Compliance Registered and be Tax requirement requireme Compliance Certificate or
Compliant nt equivalent from the country of
Incorporation – valid as of
submission deadline.
National Bidder must be have a Must meet N/A Must meet N/A Current and valid NCA 3 or
Construction certification to carry out the requirement requireme equivalent from the country of
Authority building works, civil works nt incorporation- valid as of
(NCA 3) or and the mechanical works. submission deadline.
equivalent
from the
country of
incorporation.
Physical Must have a physical office Must meet N/A Must meet N/A Completed Tender
address and works yard requirement requireme Questionnaire - Section VIII of
nt Standard Forms

Tender Sum Bidder shall quote the Must meet Must meet N/A N/A Completed (1)Form of Tender,
and Tender Tender Sum and Validity requirement requireme (2) Form of Price Schedule of
Validity period nt Goods – Section VIII of
Period Standard Forms

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Sub-Factor Requirement Bidder Documentation Required Provided
Single Joint Venture (Y/N)/ or
Entity All Each At least 1 N/A
partners partner partner
combined
Bid Security The Bidder shall furnish as Must meet Must meet N / A N/A The Bidder shall furnish as part of
part of its bid, a bid security requirement requireme its bid, a bid security in form as
in form as specified under nt specified under Section I -
Section I, Invitation to Invitation to Tenders.
Tenders.
Sanctity of the Having the document intact, Must meet Must meet N/A N/A Properly prepared Bid which
bid document legible, sequential requirement requireme should: -
pagination/serialization of nt  Be sequentially serialized
all pages including from front page to last page
attachments, well bound, including all attachments;
(not tempered with in any  Stamping, signing, and dating
way and signed by the where required within the
authorized person - granted document including the
by power of attorney) standard forms;
 Well bound and not loose.
Bidding Forms and Other Requirements
Declaration The declaration of code of Must meet Must meet Must meet N/A Completed Code of Ethics Form
on code of Ethics to be properly requirement requireme requireme – Section VIII – Standard
Ethics completed. nt nt Forms ( Commissioned by a
Commissioner of Oaths)

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Sub-Factor Requirement Bidder Documentation Required Provided
Single Joint Venture (Y/N)/ or
Entity All Each At least 1 N/A
partners partner partner
combined
Bidder The bidder is required to Must meet N/A Must meet N / A Fully completed;
Information provide all details in the requirement requireme  Form of Tender;
format as specified as per nt  Qualification information
this appendix form;
 Tender Questionnaire;
 Confidential Business
Questionnaire
 Form of Price Schedule of
Goods and Equipment
Section VIII – Standard forms
Joint Venture Bids submitted by a JV shall N / A Must meet N/A N/A  Joint Venture Agreement
Documents include a Joint Venture requireme properly executed by a
Agreement entered into by nt commissioner of oaths;
all partners.  Completed Qualification
Information Form - Section
VIII – Standard Forms;
 If tender submission &
requisite forms not signed by
all partners of the Joint
Venture, tenderer should
provide Power of Attorney
nominating any of the partners
to act/sign/submit tender
document.

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Sub-Factor Requirement Bidder Documentation Required Provided
Single Joint Venture (Y/N)/ or
Entity All Each At least 1 N/A
partners partner partner
combined
Bidder Tenderer has not been Must meet Must meet Must meet N / A  Completed Form of Tender –
debarment/Bi debarred in the past by the requirement requireme requireme Section VIII of Standard
dder Public Procurement nt nt Forms
ineligibility/C Regulatory Authority in line  Completed Commitment to
ode of Ethics with PPDA 2015. Code of Ethics Form –
Section VIII – Standard
Forms;

Manufacturer/ Where a Tenderer is not the Must meet N/A N/A Must meet Completed - Form of
Dealers manufacturer of the goods requirement requiremen Manufacturer’s Authorization -
License/Warr in question, to provide a t. Section VIII – Standard Forms
anty Transfer dealer’s licence from the for;
manufacturer. o Any equipment that the
tenderer shall deploy

Note; Failure by any bidder to meet any of the mandatory requirements will result in automatic disqualification of the bidder. Bidders
that qualify at preliminary stage shall then be evaluated and ranked on the basis of the detailed technical and functional aspects of the
proposals.

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SECTION III - REQUEST FOR PROPOSAL FOR DESIGN/BUILD CONTRACT

1.0 DEFINITIONS

Design Builder: The individual or business entity that has entered into this Contract with
Employer.

Proposal: The Technical and Financial Proposal packages submitted by the Proposers on the bid
date.

Candidate: Any person or business entity acting directly or through an authorized representative
who submits a Proposal for the work. “Candidate”, Bidder” and Tenderer are synonymous.

Request for Proposal (RFP): The documents submitted by the Employer to the “Candidates”
describing and specifying the requirements of the work/project.

Supplier or Vendor: Any individual or business entity that contracts with the Design Builder to
provide materials or equipment.

2.0 PROPOSALS

2.01 Duty to carefully examine these instructions

Prospective Candidates for this project shall examine carefully the instructions contained herein
and be satisfied with the conditions that must be satisfied prior to submitting a proposal and to the
conditions that affect the award of the contract.

2.02 Necessity for Careful Examination of Site, Plans, Specifications

The Candidate shall carefully examine the project site and shall investigate and be satisfied as to
the conditions to be encountered, the character and quantity of surface and subsurface materials or
obstacles to be encountered, rights of way and easements at or near the site, the work to be
performed, and the materials to be furnished as required by the RFP.

Any failure by the Candidate to acquaint itself with information that is available or with reasonable
investigations that may be available will not relieve it from responsibility to properly estimate the
difficulty or cost to perform the work. Such examination does not require independent
underground soil borings unless required elsewhere.

a. Subsurface Investigations

Where the Employer has made investigations of subsurface conditions and has made that
information available to Candidates, such information is limited in scope to that which has
been actually encountered in the investigations, and is included only for the convenience of
the Candidate.

The Employer assumes no responsibility whatsoever with respect to the sufficiency or


accuracy of borings or of the log of test borings, or other preliminary investigations, or any
interpretation of the above. There is no guarantee or warranty, either expressed or implied,
that the conditions indicated are representative of those existing throughout the site, or any
part of it, or that unforeseen conditions or developments may not occur.

Making such information available to Candidates is not to be construed in any way as a


waiver of this provision. Candidates must satisfy themselves through their own
investigations as to the actual conditions to be encountered.

b. Differing Site Condition

During the progress of the works, if a subsurface or latent condition is encountered at the
site that is substantially different from those indicated in the RFP or made available for
examination, a differing site condition may exist. The Design-Builder shall immediately
notify the Project Manager in writing of the differing site condition.

The Project Manager shall investigate the assertion of a differing site condition by
collecting the facts and applying the facts to the appropriate provisions of the contract
documents.

If the Project Manager in the exercise of reasonable discretion determines that a differing
site condition exists and that the differing site condition directly results in extra work, the
Design-Builder shall be entitled to a variation order, which shall compensate the Design-
Builder for the extra work.

2.03 Clarification during Tendering

The Candidate shall examine the RFP documents in preparing the tender and shall report to
the Project Manager any omissions, discrepancies, or apparent errors found in RFP. Prior
to the date of tender opening, the Candidate shall submit a written request for clarification
to the Project Manager who may give such clarification in the form of addenda to all
Candidates.

Only the project Manager is authorized to answer questions or prepare addenda relating to
the project. Information obtained from any other source shall not bind either party, may
not be relied upon and shall have no standing in any event that may occur.

2.04 Proposal Documents

Each proposal will consist of two separate submittals, the Financial Proposal and the
Technical Proposal.

a) Proposal Package

Any proposal submitted that is not signed by the Candidate or by the Candidate’s duly
authorized representative shall be rejected by the Employer as non-responsive.

b) Power of Attorney or Agent

When an agent signs proposals, a power of attorney shall either be on file with the
Employer prior to the opening of proposals, or be submitted with the proposal. Failure to
26 | P a g e
submit the power of attorney may result in the rejection of the proposal as irregular and
unauthorized. A power of attorney is not necessary in the case of a partner in a partnership.

2.05 Competitive Tendering

If more than one proposal is offered by an individual or business entity or combination


thereof, under the same or different names, all such proposals may be rejected. A party
who has quoted prices on materials or work to a Proposer is not thereby disqualified from
quoting prices to other Proposers, or from submitting a proposal directly for the materials
or work.

3.0 DESIGN REQUIREMENTS

3.01 Scope of Work

The Design-Builder shall furnish all architectural, landscape architectural and engineering
services complete set of drawings, bills of quantities and detailed specifications necessary
to complete the project in accordance with the requirements of the contract documents.

From the approved drawings and detailed specifications, the Design-Builder shall furnish
all labor, materials, equipment, services and transportation necessary for the complete
construction of the project, including site works, structures, and utilities and landscaping.

3.02 Intent of the Contract Documents

The intent of the contract documents is to provide the Employer with a project that is
complete in all respects. All items necessary or reasonably required are to be provided to
produce a complete and operational project.

3.03 (a) Laws and Codes

For any item for which the above codes are not applicable, Design-Builder shall comply
with the requirements of the latest edition of the Kenya Building Code.

Codes and specifications incorporated by reference shall be those of the latest edition at the
time of receiving proposals, unless otherwise specified.

The Employer shall select a firm(s) to provide materials testing and inspection services
during construction. The testing and inspection services firms are solely responsible to the
Project Manager for observation of construction, determination of adherence to the contract
documents (including approved plans and specifications) and compliance with the
applicable codes and standards.

(b) Plans and Specifications

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The plans and specifications shall state the design codes, standards and requirements used
for the development of the plans including the edition and applicable sections.

The plans and specifications shall include a quality control program and an implementation
plan to ensure that the completed project complies in all respects to the project
requirements. The design professional engaged by the Design-Builder shall specify all
tests and inspections that are required by the building code and that are appropriate to
achieve the project goals. The design professional on record shall be retained to provide
normal construction administration services and shall make periodic visits to the site to
observe the quality of the work.

The final design drawings, specifications and calculations shall be signed and stamped by
the appropriate registered professionals as complying with the requirements of the
applicable codes, standards, practices and regulations.

The design professionals on record shall retain full responsibility for the design.

The Design-Builder shall incorporate changes, if any, resulting from plan check, peer
review and/or Employer requirements into the final design without additional cost to the
Employer. Such final drawings and specifications shall be resubmitted to the Employer for
approval.

(c) Plan Approval by Employer

No plans shall be approved for construction without the express written approval of the
Employer.

At the discretion of the Employer, the project may be approved in parts provided that each
part is assessed as in full compliance with the applicable requirements and can be
completed without compromising compliance of the total project.

Any changes, alterations, substitutions or modifications made to the approved plans during
construction must be approved in writing by the Project Manager where they could be
construed to impact on the adherence to the applicable codes, standards or regulations.

The Design-Builder shall incorporate without additional cost to the Employer any changes,
alterations, substitutions or modifications made to the approved plans that are required
during construction to satisfy code requirements, including those not previously identified
in the approved plans, or to properly implement the approved plans, or where observed
workmanship and/or discovered conditions so require.

The Design-Builder shall be responsible for payment of applicable fees and shall
incorporate any modifications required in the drawings and detailed specifications without
additional cost to the Employer.

The Employer will issue a certificate of completion when satisfied that the approved plans
have been implemented and that all inspection and technical code and standards
compliance issues identified during construction have been satisfactorily resolved.

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3.04 Drawings & Specifications

a) Quality Requirements

The Design-Builder shall submit to the Employer for approval complete drawings and
detailed specifications necessary to construct the project, including drawings and detailed
specifications for site layout, utilities and landscaping.

It is required that these drawings and specifications be prepared by Registered


professionals under the law.

b) Plan Review and Testing/Inspection Services

The Project Manager shall have the responsibility for enforcement of all applicable codes,
standards and related responsibilities.

The Employer shall review the plans and specifications for adherence to applicable codes
and standards.

The Employer shall select a firm(s) to provide materials testing and inspection services
during construction.

The testing and inspection services firms are solely responsible to the Project Manager for
observation of construction, determination of adherence to the contract documents
(including approved plans and specifications) and compliance with the applicable codes
and standards.

3.05 Approvals Prior to Construction

Review and approval of all drawings and detailed specifications must be obtained from the
Employer before start of construction. However, the Employer will accept a design
submission for site development and if found satisfactory, will allow the Design-Builder to
proceed with earthwork, foundations and other elements of site development while final
plans and specifications for the balance of the work are being completed.

The Design-Builder is responsible for final approvals per Articles as per 4.0 and 4.04 and
approval of portions of the work by the Employer does not relieve the Design-Builder of
responsibility for construction should changes be required due to items disapproved or
changed due to plan check. The responsibility for a totally integrated design in accordance
with the contract documents will remain with the Design-Builder.

3.06 Submittals

The Design-Builder shall submit all detailed fabrication drawings, shop drawings, samples,
material list and manufacture’s equipment brochures setting forth in detail the work as it is
to be performed by the Design-Builder. Submittals shall be made in accordance with
Article 6.04. Submittals shall be approved in writing by the Employer prior to use of the
materials for the work.
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3.07 Divisions of the Performance Specifications

The performance specifications are divided into sections for convenience as set forth in the
standard format. The actual limitations of work in the various trades and/or sections of the
specifications are the responsibility of the Design-Builder.

3.08 Layout of the Work

The Design-Builder shall prepare surveys and design for excavations and shoring required
for the project and assure compliance with all state and local regulations.

4.0 CONDUCT OF THE CONSTRUCTION WORK

4.01 Laws to be observed - Generally

a) The Design-Builder shall observe all Government laws that affect the work under this
contract.

The Design-Builder shall hold harmless defend and indemnify the Employer against any
claim arising from the violation of any law, whether by itself or its agents, employees or
subcontractors.

If a conflict arises between the provisions of this contract and a law, the Design-Builder
immediately shall notify the Employer’s Project Manager in writing.

“Law” as used in this paragraph includes statutes and regulations adopted as well as
executive orders, authoritative interpretations and other rules and directives issued by
legally constituted authority.

4.02 Laws to be Observed – Regarding Labor

a) Labor

i) The Design-Builder shall comply with the provisions of the Kenyan Labor Laws.

ii) The Design-Builder shall permit access by representatives of the Employer upon
reasonable notice to its books, records, accounts, other sources of information and
its facilities as the Employer shall require to ascertain compliance with this clause.

iii) The design Builder and its subcontractors shall give written notice of their
obligations under this clause to labor organizations with which they have a
collective bargaining or other agreement.

b) Prevailing Wage

i) Wage rates set forth are the minimum that may be paid by the Design-Builder on a
public works contract.
30 | P a g e
Public works also means hauling refuse from a public works site to an outside
disposal location.

Nothing herein contained shall be construed as preventing the Design-Builder from


paying more than the minimum rates set forth.

No extra compensation whatsoever will be allowed by the Employer due to the


inability of the Design-Builder to hire labor at minimum rates nor for the necessity
for payment by the Design-Builder of subsistence, travel time, overtime or other
added compensations, all of which possibilities are elements to be considered and
ascertained to the Design-Builder’s own satisfaction in preparing the bid.

ii) If it becomes necessary to employ crafts other than those listed, the Design-Builder
shall notify the Employer immediately and the Employer will ascertain additional
prevailing rates and the rates thus determined shall be applicable as minimum from
time of initial employment.

iii) The Design-Builder and any subcontractor under the Design-Builder shall comply
with all labor laws.

iv) The Design Builder and subcontractors shall keep an accurate payroll record,
showing the name, address, social security number, work classification, straight
time and overtime hours worked each day and week and actual per diem wages paid
to each journeyman, apprentice or worker employed in connection with the public
works.

Each payroll record shall contain verification by written declaration that the
information contained in the payroll record is true and correct and that the Design-
Builder and subcontractors have complied with the requirements.

For work performed by its employees on the project, the Design-Builder’s and
subcontractor’s payroll records shall be available for inspection at all reasonable
hours and a certified copy shall be made available upon request to the employer or
his or her authorized representative.

v) The Design-Builder is required to submit a minimum of the first two weeks of


certified payroll and the Hourly Labor Rate Worksheet for its workers and all
subcontractors.

Additional weeks of certified payroll records may be required at the discretion of


the Employer.

c) Worker’s Compensation

The Design-Builder shall be required to secure payment of Worker’s Compensation to its


employees in accordance with Labor Laws and shall file with the Employer prior to
performing the work the certification required.

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d) Apprentices

If the Design-Builder or any subcontractor employs workers on the project in any


apprentice able craft it shall apply to the joint apprenticeship committee administering the
apprenticeship standards for the craft in the area of the work for a certificate approving the
Design-Builder or subcontractor for the employment and training of apprentices.

Every apprentice shall be paid the standard wage paid to apprentices under the regulations
of the craft or trade in which they are employed and shall be employed only in the work of
the craft or trade to which they are indentured.

The employment and training of each apprentice shall be in accordance with the provisions
of the apprenticeship agreements under which a person is training.

The Design-Builder or subcontractor employing journeymen or apprentices in any


apprentice able craft or trade shall contribute to the fund or funds set up in the area of work
to administer the apprenticeship program in each trade in which it employs such
journeymen or apprentices in the same amount and manner as the contributing contractors.

e) Education, Counseling and Training Programs

All educational, counseling and vocational guidance programs and all apprenticeship and
on-the-job training programs, under this contract, shall be open to all qualified persons,
without regard to race, sex, color, religion, National origin or ancestry.

Such programs shall be conducted to encourage the fullest development of the interests,
skills, aptitudes and capacities of all students and trainees with special attention to the
problems of culturally deprived, educationally handicapped or economically disadvantaged
persons.

Expansion of training opportunities under these programs shall also be encouraged with a
view toward involving larger numbers or participants from these segments of the labor
force where the need for upgrading levels of skills is the greatest.

The Design-Builder shall obtain copies of such safety orders as are applicable to the type of
work to be performed and shall be governed by their requirements in all construction
operations. The Design-Builder shall fully inform each subcontractor and materials
supplier as to the requirements of the applicable safety orders.

4.03 Environmental Requirements

a) Air and Water Pollution Control

The Design-Builder shall comply with all air and water pollution control rules, regulations,
ordinances and statutes that apply to the work performed under the contract including any
air pollution control rules, regulations, ordinances and statutes adopted under the authority
of the Employer.

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The Design-Builder must be eligible to perform work for the Project Manager by not being
found to be in violation of any order, resolution or regulation relating to air or water
pollution adopted in accordance with Project Manager Requirements.

In the absence of any applicable air pollution control rules, regulations, ordinances or
statutes governing solvents, all solvents, including but not limited to the solvent portions of
paints, thinners, curing compounds and liquid asphalt used on the project, shall comply
with the applicable material requirements of the Kenya Bureau of Standards.

All containers of solvent paint, thinner, curing compound or liquid asphalt shall be labeled
to indicate that the contents fully comply with these requirements.

Unless otherwise provided in the special provisions, material to be disposed of shall not be
burned either inside or outside the premises.

A regular watering program shall be initiated to adequately control the amount of fugitive
dust.

Exposed soil surfaces shall be sprayed with water at least daily and as needed to mitigate
dust.

Trucks hauling dirt from the site shall be covered in accordance with applicable state and
local requirements.

To reduce exhaust omissions, unnecessary idling of construction vehicles and equipment


shall be avoided.

Construction equipment shall be fitted with modern emission control devices and shall be
kept in proper tune.

b) Sound Control requirements

The Design-Builder shall comply with all sound control and noise level rules, regulations
and ordinances which apply to the work.

In the absence of any such rules, regulations and ordinances, the Design-Builder shall
conduct its work to minimize disruption to others due to sound and noise from the workers
and shall be responsive to the Employer’s requests to reduce noise levels.

Loading and unloading of construction materials will be scheduled so as to minimize


disruptions to any activities.

Construction activities will be scheduled to minimize disruption to the adjacent premises.

4.04 Substitution of Subcontractors

Once the subcontractors have been listed provisions of the subletting and subcontracting to
any proposed substitution of subcontractors must be approved by the Project Manager.
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The Design-Builder must clearly advertise the specific bond requirements for the project
including the requirement of a bond, the kind of a bond and the amount of the bond, in
order to be eligible to substitute a subcontractor.

When requested by the Project Manager, the Design-Builder shall submit a Subcontractor
Status Report, which will be compared with the list of approved contractor.

If any subcontracts are still outstanding at the time of submittal, a follow-up request will be
made.

No substitution of any subcontractor would be allowed without written approval of the


Employer.

4.05 Design-Builder’s Responsibility for the Work

a) Generally

The Design-Builder shall be fully responsible for all work performed under this contract
and no subcontractor will be recognized as such.

For purposes of assessing responsibility to the Design-Builder, all persons engaged in the
work shall be considered as employees of the Design-Builder.

The Design-Builder shall give her/his personal attention to the fulfillment of the contract
and keep all phases of the work under her/his control.

The Employer will not arbitrate disputes among subcontractors nor between the Design-
Builder and one or more subcontractors concerning responsibility for performing any part
of the project.

b) Quality Control

The Design-Builder shall be fully responsible for the quality of materials and workers’ skill
in the project.

The Design-Builder shall not rely upon the inspection and testing provided by the
Employer other than those special inspections and tests performed by the Employer’s
selected laboratories for which there are written reports.

c) Burden for Damage

From the issuance of the official Notice to Proceed until formal acceptance of the project
by the Employer, the Design-Builder shall have the charge and care of and shall bear the
risk of damage to the project and materials and equipment for the project.

The Design-Builder, at its own expense, shall promptly rebuild, repair, restore and make
good all such damage to any portion or to all of the project and materials therefore before

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the acceptance of the project by the Employer except for such damage as is proximately
caused by acts of the Employer or public enemy.

In case of suspension of work from any cause whatsoever, the Design-Builder shall be
responsible for all materials and shall properly store them, if necessary and shall provide
suitable drainage and erect temporary structures where necessary.

If the Design-Builder damages any property belonging to the Employer, the Employer may,
in addition to other remedies available to the Employer, retain from the money due to the
Design-Builder an amount sufficient to ensure repair of the damage or an amount to
contribute towards repair of the damage.

The Design Builder shall be responsible for any damage to the project and materials and
equipment for the project.

d) Protection of Adjoining Facilities

The Design-Builder shall protect adjoining property and nearby buildings, roads and other
facilities and improvements from dust, dirt, debris and other nuisances arising out of
Design-Builder’s operations.

Dust shall be controlled by sprinkling or other effective methods acceptable to Employer.

An erosion and sedimentation control program shall be initiated, which includes measures
addressing erosion caused by wind and water and sediment in runoff from site.

A regular watering program shall be initiated to adequately control the amount of fugitive
dust in accordance with applicable Law.

e) Safety

The Design-Builder shall exercise precaution at all times for the protection of persons and
their property.

The Design Builder shall install adequate safety guards and protective devices for all
equipment and machinery, whether used in the work or permanently installed as part of the
project.

The Design-Builder shall also provide and adequately maintain all proper temporary walks,
roads, guards, railings, lights and warning signs.

The Design-Builder shall comply with all applicable laws relating to safety precautions,
including the safety regulations of the Project Manager.

If the Design-Builder designates other employees, its Foreman shall have the duty of
prevention of accidents.

The Design-Builder shall institute a safety program, which includes all trades on the site.

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Renovation, expansion, or remodel work of any existing building may expose workers to
lead-containing materials such as paint, flashings and pipe joints. The Design-Builder shall
comply with all applicable laws addressing such exposure.

The Employer and the Project Manager may bring to the attention of the Design-Builder a
possible hazardous situation in the field regarding the safety of personnel on the site.

The Design-Builder shall be responsible for verifying that all local, state and Government
workplace safety guidelines are being observed.

In no case shall this right to notify the Design-Builder absolve the Design-Builder of its
responsibility for monitoring safety conditions.

Such notification shall not imply that anyone other than the Design-builder has assumed
any responsibility for field safety operations.

In the event of an accident, the Design-Builder shall make available to the Employer copies
of its accident report to its insurance carrier.

The Design-Builder shall determine the cause of the accident and immediately correct any
equipment, procedure or condition contributing to the accident.

f) Utilities

i) If the Design-Builder discovers utility facilities not identified in the contract


documents, the Design-Builder shall immediately notify the Employer and the
utility involved in writing of such discovery.

When the Design-Builder is required by the plans and specifications to locate,


remove or relocate utility facilities not identified in the contract documents with
reasonable accuracy, she/he shall be compensated for any reasonable actual added
cost incurred.

The Design-Builder shall also be compensated for the cost of repairing any damage
resulting from the discovery of such unidentified utility facility when such damage
does not result from the failure of the Design-Builder to exercise reasonable care.

All such compensation to the Design-Builder shall be based on an actual cost plus
Design-Builder and subcontractor mark-up except that both the Design-Builder’s
and subcontractor’s mark-up shall be reduced by six (6) percent each, where the
damages results from the failure of the Design-Builder or subcontractor to exercise
reasonable care.

The Employer or the public utility, where it is the owner of the utility facilities shall
have the sole discretion to perform repairs, or relocation work or permit the Design-
Builder to do such repairs or relocation work at a reasonable price, where such work
is required to facilitate the project.

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The Design-Builder shall not be assessed liquidated damages for delay in the
completion of the project which is caused by the failure of the Employer or the
owner of the utility to provide for removal or relocation of such unidentified utility
facilities.

ii) With the exception of the identification of main trunk line utility facilities in the
contract documents, the foregoing provisions of sub clause (I) shall not apply to and
Employer shall have no obligation to indicate the presence of existing service
laterals or appurtenances whenever the presence of such utilities on the site of the
project can be inferred from the presence of other visible facilities such as
buildings, meter and junction boxes on or adjacent on the site of the construction.

iii) Except as expressly provided in sub clauses (I) and (ii) above, the Design-Builder
shall be responsible at its own cost for all work, expense or special precautions
caused by the existence or proximity of utilities encountered at the site or in the
performance of the project work including without limitation, repair of any damage
that may result including any damage resulting from hand or exploratory
excavation.

The Design-Builder is cautioned that the utilities encountered at the site may
include communication cables or electrical cables conducting high voltage. When
excavating in the vicinity of the ducts enclosing such cables, special precautions are
to be observed by the Design-Builder at her/his own cost and shall include the
following.

(a) All cables and their enclosure ducts shall be exposed by careful hand
excavation so as not to damage the ducts or cables nor;

(b) Cause injury to persons and appropriate warnings signs, barricades and
safety devices shall be erected.

(iv) The Design-Builder shall provide to the Employer as-built drawings of all utilities
encountered and constructed indicating the size, horizontal location and vertical
location based on the project bench mark or a stable datum.

4.06 Occupancy by Employer Prior to Acceptance

The Employer reserves the right to occupy all or any part of the project prior to completion
of the entire contract, upon issuance of a written contract change order therefore.

In such event, the Design-Builder shall be relieved of responsibility for any injury or
damage to such occupied part as results from the Employer’s occupancy and use.

If the Design-Builder carries insurance against damage to such premises or against liability
to third persons covering the premises so used and occupied by the Employer and if such
occupancy results in increased premiums for such insurance, the Employer will pay to the
Design-Builder the added premium costs for such insurance during the period of
occupancy.

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The Occupancy change order shall be the vehicle for such payment, if applicable.

The Employer’s occupancy shall not constitute acceptance by the Employer either of the
project as completed or of any portion thereof, nor will it relieve the Design-Builder of full
responsibility for correcting defective work or materials found at any time before the
formal written acceptance of the project as completed by the Employer and during the full
guarantee period after such acceptance, nor does it stop the assessment of liquidated
damages.

However, when the project includes several separate facilities and one or more of such
facilities is entirely occupied by the Employer, then upon written request of the Design-
Builder, the guarantee period for the occupied facility may commence from the date of
occupancy subject to written consent thereto by the Employer.

4.07 Responsibility to secure and Pay for permits, Licenses, Utility Connections Etc.

The Design-Builder shall secure all permits and licenses required for any operations
required under this contract and shall pay all costs relating thereto as well as all other fees
and charges that are required by the Project Manager, telephone company, special district
or quasi – Project Managerial entity.

It is the Design-Builder’s responsibility to ascertain the necessity of such permits and


licenses in preparing its tender and include in its tender the cost thereof as well as
adjustments for any delays, which may be caused by securing permits and licenses.

4.08 Patented or Copyrighted Materials

The Design-Builder shall assume all costs arising from the use of patented or copyrighted
materials, equipment, devices or processes used on or incorporated in the project and
agrees to save harmless, defend and indemnify the Employer Consultants, the Employer,
Employees of each of them from all suits, actions or claims for or on account of the use of
any patented or copyrighted materials, equipment, devices or processes.

4.09 Property Rights in Materials and Equipment

Nothing in the contract shall be construed as vesting in Design-Builder any property in the
materials or equipment after they have been attached to or permanently placed in or upon
the work or the soil or after payment has been made for the value of the materials or
equipment delivered to the site of the work whether or not they have been so attached or
placed.

All such materials or equipment shall become the property of Employer upon being so
attached or placed or upon payment of the value of the materials or equipment delivered on
the site but not yet installed and the Design-Builder warrants that all such property shall
pass to Employer free and clear of all liens, claims, security interests or encumbrances.

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4.10 Taxes

The Design-Builder shall pay all taxes imposed by law which are levied or become payable
as a result of the Design-Builder’s performance under this contract.

4.11. Contract Time

(a) Time is of the Essence.

All time limits specified in this contract are of the essence of the contract.

(b) Starting and Completion Date

The Employer shall designate in the Notice to proceed the starting date of the
contract on which the Design-Builder shall immediately begin and thereafter
diligently execute the work to completion.

The Design-Builder agrees to complete the work on the date specified for
completion of the Design-Builder’s performance in the contract unless such time is
adjusted in writing by change order by the Employer.

The Design-Builder may complete the work before the completion date if it will not
interfere with employer or other contractors engaged in related or adjacent work.

The work shall be regarded as completed as noted on the Employer Notice of


Completion.

4.12 Labor Force and Foreman

At all times the Design-Builder shall provide sufficient labor to properly execute the work
and to ensure completion of each part in accordance with the schedule and within the
contract time.

The Design-Builder shall make certain that competent workers are employed who are
skilled in the type of work required and that workmanship is of the best, regardless of the
quality of material.

If in the judgment of the Employer, any person is incompetent or disorderly, the Design-
Builder shall promptly remove such person from the project and shall not re-employ such
person thereon.

The Design-Builder shall retain a competent, full time on-site Foreman to represent the
Design Builder and to direct the project at all times while any work under this contract is
being performed.

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The Foreman shall prepare a daily report, which includes worker count and work in
progress and shall provide the report to the Employer upon request.

The Design-Builder shall make certain that all subcontractors employed are properly
registered and are in good standing with Project Manager Requirements.

4.13 Limitation of Construction Operations

The Design-Builder shall limit the area and nature of the construction operations to that
which is authorized in the plans and specifications or approved in writing by the Employer.

The Design-Builder shall be responsible to others engaged in the related or adjacent work
for all damage to work, to persons and to property and for loss caused by failure to
complete the work within the specified time for completion.

The Design-Builder shall coordinate its work with the work of others so that no
discrepancies shall result in the project.

4.14 Drawings Reflecting Actual Construction

During the course of construction, the Design-Builder shall maintain drawings daily to
show the project as it is actually constructed.

Every sheet of the plans and specifications, which differs from the actual construction, shall
be marked and sheets so changed shall be noted on the title sheets of the plans and
specifications.

All variation orders shall be shown by reference to sketch drawings and any supplementary
drawings or change order drawings shall be included.

The Design-Builder shall review the “as-built” drawings with the Project Manager at least
once a month to demonstrate that all changes that have occurred are being fully and
accurately recorded.

The altered contract drawings shall be sufficiently detailed so that future work on the
project or in adjacent areas may be conducted with a minimum of difficulty.

Prior to the completion of the project and prior to release of the final retention payments
the “as-built” drawings and specifications shall be transmitted to the Project Manager for
further handling with a copy of the transmittal to the Employer.

Additionally, the Design-Builder shall turn over to the Employer a re-drafted and complete
set of “as-built”: drawings of the actual construction.

Final payment will not be made to the Design-Builder until the “as-built” drawings are
received and spot checked by the Employer. Corrections if any shall be made as necessary.

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4.15 Access for Inspection

The Design Builder shall at all times permit the Employer and the Project Manager to visit
and inspect the work and the shops where work is in preparation and shall maintain proper
facilities and provide safe access for such inspection.

Work requiring testing, inspection or verification shall not be covered up without such test,
inspection or approval.

The Design-Builder shall notify the Project Manager in writing at least 24 hours in advance
of the Project Manager being required to inspect the work.

For a project with part time inspection, a minimum of 48 hours written notification by the
Design-Builder to the Project Manager is required before the Project Manager is required to
inspect the work, whenever the Design-Builder intends to perform work on a Saturday.

4.16 Clean-up of Project and Site

The Design-Builder shall clean up its work at frequent intervals and at other times when
directed by the Employer.

At all times while finish work is being done, floors shall be kept broom clean.

Upon completion of the work, the Design-Builder shall promptly remove from the premises
construction equipment and any waste materials not previously disposed of leaving the
premises thoroughly clean and ready for occupancy.

In the event the Design-Builder does not maintain the project or the site clear of debris and
rubbish in manner acceptable to the Employer, the Employer may cause the project or site
to be properly cleaned and may withhold the expense incurred therefore from payments due
to the
Design-Builder.

4.17 Project Sign, Advertising

The Design-Builder shall furnish and install a project sign required as part of the work
under the contract as guided.

As a minimum, the sign shall be 2 metres wide and 4 metres high.

The sign shall identify the Project Name, the Employer, the Design-Builder and the Project
Manager.

No advertising is permitted on the project or site without written permission from the
Employer.

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5.0 INTERPRETATION OF AND ADHERENCE TO CONTRACT REQUIREMENTS

5.01 Interpretation of Contract Requirements

(a) Correlation

Contract documents shall be interpreted as being complementary, requiring a


complete project.

Any requirement occurring in any one of the contract documents is as binding as


though occurring in all contract documents.

Generally, the specifications address quality, types of materials and contract


conditions while the drawings show placement, sizes and fabrication details of
materials.

(b) Conflicts

In the event of conflict in the contract documents, the following priorities shall
govern:

(i) Addenda shall govern over all other contract documents and subsequent
addenda shall govern over prior addenda only to the extent modified.

(ii) “Contract Conditions” shall govern over all sections of the specifications.

No section of the specifications shall modify the Contract Conditions.

(iii) In the event that provisions of codes, safety orders contract documents,
referenced manufacturers specifications or industry standards are in conflict,
the more restrictive or higher quality shall govern.

(c) Omissions

In the event of omissions in the contract documents the following shall apply:

(i) If the contract documents are not complete as to any minor detail of a required
construction system or with regard to the manner of combining or installing of
parts, materials or equipment, but there exists an accepted trade standard for good
and skillful construction, such detail shall be deemed to be an implied requirement
of the contract documents in accordance with such standard.

“Minor Detail” shall include the concept of substantially identical components,


where the price of each such component is small even though the aggregate cost or

42 | P a g e
importance is substantial and shall include a single component that is incidental
even though its cost or importance may be substantial.

(ii) The quality and quantity of the parts or material so supplied shall conform to trade
standards and be compatible with the type, composition, strength, size and profile of
the parts of materials otherwise set forth in the contract documents.

5.02 Issuance of Interpretations, Clarifications, Additional Instructions

Should the Design-Builder discover any conflicts, omissions or errors in the contract or
have any question concerning interpretation or clarification of the contract, the Design-
Builder shall request in writing interpretation, clarification or additional detailed
instructions before proceeding with the work affected.

The written request shall be given to the Design-Builder with copies to the Employer and to
the Project Manager.

The Employer shall, within a reasonable time, issue in writing the interpretation,
clarification or additional detailed instructions requested.

Should the Design-Builder proceed with the work affected before receipt of the
interpretation, clarification or instructions from the Employer, the Design-Builder shall
replace or adjust any work not in conformance therewith and shall be responsible for any
resultant damage or added cost.

Should any interpretation, clarification or additional detailed instructions as approved by


the Employer and in the opinion of the Design-Builder, constitute work beyond the scope
of the contract, the Design-Builder must submit written notice thereof to the Employer
within seven calendar days following receipt of such interpretation, clarification or
additional detailed instructions and in any event prior to commencement of work thereon.

The Design-Builder shall send copies of such correspondence to the Project Manager.
Within seven calendar days after the Design-Builder issues its written notice, the Design-
Builder shall submit an explanation of how the interpretation, clarification or additional
detailed instruction constitutes work beyond the scope of the contract, along with a detailed
cost breakdown and an explanation of any delay impacts.

If in the judgment of the Employer, the notice is justified, the interpretation, clarification or
additional detailed instructions shall be revised or the extra work authorized by contract
change order or by Site Instruction with a change order to follow.

If the Employer decides that the claim is not justified the Employer shall give the Design-
Builder a written order that the claim is not justified and direct the Design-Builder to
perform such work.

The Design-Builder shall proceed with the work upon receipt from the Employer of a
written order to do so, in accordance with the Employer’s interpretation of the contract
requirements, but within seven days of receipt of the order, the Design-Builder must notify
the Employer by letter that it protests the decision.
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When performing disputed work, the Design-Builder shall prepare time and materials
records for each day and the Site Manager shall verify these records at the conclusion of
each day.

The Design-Builder shall have no claim for additional compensation because of such
interpretation, clarification or additional detailed instruction, unless he/she gives written
notice to the Employer within seven calendar days as specified above.

5.03 Product and Reference Standards

(a) Product Designation

When descriptive catalog designations, including the manufacturer’s product brand


name, or model number are referred to in the contract, such designations shall be
considered as those found in industry publications.

(b) Reference Standards

When standards of the Project Manager, trade societies or trade associations are
referred to in the contract by specific date of issue, these shall be considered a part
of this contract.

When such references do not bear a date of issue, the current and most recently
published edition shall be considered a part of this contract.

5.04 Shop Drawings, Samples, Alternatives or Equals, Substitutions

(a) Submittal Procedure

The Design-Builder shall review and approve all shop drawings. “Shop drawings”
include drawings, diagrams, illustrations, schedules, performance charts, brochures
and catalogs and other data prepared by the Design-Builder or any subcontractor,
manufacturer, supplier or distributor, which illustrate some portion of the work.

The Design-Builder shall promptly review and mark the shop drawings approved
and submit to the Employer, so as to cause no delay in the work together with
samples as required by the contract and shall also submit any offers of alternatives
or substitutions.

The Design-Builder shall submit at least four copies of shop drawings with three to
be retained by the Employer.

All such submittals shall be sent to the Employer at the address given in the
instructions to the Design-Builder at the job start meeting.

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A letter shall accompany the submitted items which shall contain a list of all
matters submitted and shall identify all deviations in the shop drawings and samples
from the requirements of the contract.

Failure by the Design-Builder to identify all deviations may render any action taken
by the Employer on the materials submitted to be void.

Whether to void such action shall be in the discretion of the Employer.

The letter and all items accompanying it shall be fully identified as to project name
and location, the Design-Builder’s name and contract number.

By submitting the approved shop drawings and samples, the Design-Builder


represents that the data contained therein have been verified with conditions as they
actually exist and that the shop drawings and samples have been checked and
coordinated with the contract.

(b) Samples

Samples are physical examples furnished by the Design-Builder to illustrate


materials, equipment, color, texture or workmanship and to establish standards by
which the work will be judged.

The work shall be in accordance with the samples, submitted as required by the
contract and reviewed by the Employer.

The Design-Builder shall remove samples from the site when directed by the
Employer.

Samples not removed by the Design-Builder at the Employer’s option will become
the property of the Employer or will be removed or disposed of by the Employer at
the Design-Builder’s expense.

(c) Alternatives or Equals

For convenience in designation on the plans or in the specifications certain


materials or equipment may be designated by a brand or trade name or the name of
the manufacturer together with catalog designation or other identifying information,
hereinafter referred to generically as “designated by brand name”.

Alternative material or equipment which is of equal quality and of the required


characteristics for the purpose intended may be proposed for use provided the
Proposer complies with the following requirements;

(i) The Proposer shall submit his or her proposal to the Employer for an
alternative as “an equal” in writing prior to the award of the contract as
required by the Employer.

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(ii) In exceptional cases where the best interests of the Employer so require, the
Employer may give written consent to a submittal or re-submittal received
after the expiration of the time limit designated.

If a Proposer desires consideration of “an equal” prior to submitting


proposals, the Proposer is responsible for a timely submittal.

(iii) No proposal will be considered unless accompanied by complete


information necessary to permit determination of the equality of the offered
materials or equipment. Samples shall be provided when requested by the
Employer.

(iv) The burden of proof as to the comparative quality and suitability of the
offered materials or equipment shall be upon the Proposer.

Where the material is specified by capacity or performance, the burden of


proof shall be on the proposer to show that any particular equipment or
materials meet the minimum capacities or the performance requirements
specified.

The Proposer shall furnish at its own expense all information necessary for a
determination as to whether the minimum capacities or performance
requirements will be met.

The Employer shall be the judge of such matters. If the Employer rejects
the use of any alternative materials or equipment, then one of the products
designated by brand name shall be furnished.

If changes or delays are required for proper installation or fit of alternative


materials, articles or equipment, or because of deviations from contract
documents such changes or delays shall be made at the Design-Builder’s
expense without recourse for reimbursement from the Employer.

(d) Substitutions

If the Design-Builder proposes a product that is of lesser or greater quality or


performance than the specified material or equipment, the Design-Builder must
submit any cost impact of this substitution.

By submitting a substitute, the Design-Builder waives any rights to claim a delay


due to the processing of this substitution.

The time for submission of a substitute of an unequal product shall be restricted to 5


days after the effective date on the Notice-to-Proceed unless the Employer allows a
longer or shorter period in writing.

5.05 Quality of Materials, Articles and Equipment


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Materials articles and equipment furnished by the Design-Builder for incorporation into the
work shall be new.

When the contract requires that materials, articles or equipment be furnished but the quality
or kind thereof is not specified, the Design-Builder shall furnish materials, articles or
equipment at least to the kind or quality or both of materials, articles or equipment which
are specified.

5.06 Testing Materials, Articles, Equipment and Work

Materials, articles and equipment requiring tests shall be delivered to the site in ample time
before intended use to allow for testing and shall not be used prior to testing and receipt of
written approval.

The Design-Builder shall be solely responsible for notifying the Employer where and when
materials, articles, equipment and work are ready for testing.

Should any such materials, articles, equipment or work be covered without testing and
approval, if required, they shall be uncovered at the Design-Builder’s expense.

The Employer has the right to order the testing of any other materials, articles, equipment
or work at any time during the progress of the work. Unless otherwise directed, all samples
for testing shall be taken by the Employer from materials, articles or equipment to be used
on the project or from work performed.

All tests will be under the supervision of and at locations convenient to the Employer.
The Employer shall select the laboratories for all tests.

Decisions regarding the adequacy of materials, articles, equipment or work shall be issued
to the Employer in writing.

All costs of the initial required tests shall be borne by the Design-builder.

The Employer may decide to take further samples and tests and if the results show that the
work was not defective, the Employer shall bear the costs of such samples and tests.

In the event the results of such additional samples and tests show that the work was
defective, the Design-builder shall bear the cost of such samples and tests.

Samples that are of value after testing shall remain the property of the Design-Builder. The
Employer may be back charge to the Design-Builder all retesting and re-inspection costs.

5.07 Rejection

Should any portion of the work done or any materials, articles or equipment delivered fail
to comply with the requirements of the contract, such work, materials, articles or
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equipment shall be rejected in writing and shall immediately be made satisfactory to the
Employer, by the Design-Builder at no additional expense to the Employer.

Any materials, articles or equipment, which are rejected, shall immediately be removed
from the premises at the expense of the Design-Builder.

The employer may retain one and one-fourth times the cost of the rejected materials,
articles, equipment and work from any payments due to the Design-Builder until such time
as it is made acceptable to the Employer.

5.08 Responsibility of Quality

The testing and inspection provided by the Employer shall not relieve the Design-Builder
of its responsibility for the quality of materials and workmanship provided by the Design-
Builder and the Design-Builder shall make good all defective work discovered during or
after completion of the project.

5.09 Guarantee

The Design-Builder hereby unconditionally guarantees the work under this contract to be in
conformance with the contract requirements and to be and remain free of defects in
workmanship and materials for a period of one year from the date of acceptance of the
project, unless a longer guarantee period is agreed between the parties.

By this guarantee the Design-Builder agrees within the guarantee period, to repair or
replace any work together with any adjacent work which may be displaced in so doing
which is not in accordance with the requirements of the contract or which is defective in its
workmanship or material, all without any expense whatsoever to the Employer.

Special guarantees that are required by the contract shall be signed by the Design-Builder,
who is responsible for the entire work and countersigned by the sub-contractor who
performs the work.

Contract bonds shall remain in full force and effect during the one-year guarantee period,
unless a longer bond period is agreed.

The Design-Builder further agrees that within five (5) calendar days after being notified in
writing by the Employer of any work not in accordance with the requirements of the
contract or of any defects in the work, the Design-Builder shall commence and execute
with diligence all work necessary to fulfill the terms of this guarantee and to complete the
work in accordance with the requirements of the contract within a reasonable period of
time.

The Design-Builder in the event of failure to so comply, does hereby authorize the
Employer to proceed to have the work done at the Design-Builder’s expense and the
Design-Builder agrees to pay the cost thereof upon demand.

The Employer shall be entitled to be reimbursed by the Design-Builder all costs necessarily
incurred upon the Design-Builder’s refusal to pay the above cost.
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Notwithstanding the foregoing paragraph, in the event of an emergency constituting an
immediate hazard to health or safety of the Employer, employees, property or the public,
the Employer may undertake at the Design-Builder’s expense without prior notice, all work
necessary to correct any hazardous conditions caused by the work of the Design-Builder
not being in accordance with the requirements of this contract.

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SECTION IV (A) - BACKGROUND AND PRELIMINARY INFORMATION

1.1 Background

 Irish Potato and vegetables are the leading crop enterprises in the county in terms of
acreage. The county accounts for 33% of the National potato production. But this
production has not impacted much towards the improvement of the County farmers due
to low producer prices, post-harvest losses, and limited processing facilities resulting in
poor farmers’ returns.
 The proposed potato and vegetable processing plant has an overall objective of
stabilization of supply and prices as well as reduction of post-harvest losses of potato and
vegetables thereby contributing to the county food security and incomes. This will
encourage more farmers to venture into the enterprises for employment and wealth
creation.

1.2 Specific objective(s)

 Reduce post-harvest losses during glut period, hence increased incomes.


 Creation of wealth and employment (directly and indirectly) especially for youth,
producer farmers and other stakeholders.
 Increased county government revenue due to more cess collection, hence improvement of
standard of living due to improved delivery of services.

1.3 Project main activities


 Designing and construction of potato and vegetable processing plant using existing
structure (66mx30mx5.1m).
 Installation of fresh potato and vegetable processing equipment.
 Installation of other required equipment for smooth running of the plant.
 Capacity-building of staff to attain the required skills for operationalization of the plant.

1.4 Expected Project benefits

 Well established potato and vegetable value chains, responding to market requirements
throughout the year.
 A well streamlined marketing system of potatoes and vegetables in the county where farmers
get reward for their labor and sweat while consumers readily get their preferred products at
reasonable price.
 Improved standards of living for the county residents.
 Boost to other stakeholders in the potato and vegetable value chains like agro- input dealers,
horticultural produce transporters, market outlets like supermarkets, retail shops etc.
 Creation of employment opportunities both directly and indirectly, at least 5,000 jobs within
and outside the County i.e. transporters-1000 (loading and off-loading), packaging industry
and personel-150, service providers 500, traders 2,000, other service providers, consultants.
 The productivity of potatoes is expected to increase from the current average yields of
15tonnes/ Ha which is well below the optimal levels to an average 40tonnes/Ha.
 The County will generate more revenue from the potato business through collection of
produce cess and traders’ fees.
 The value of potato produced from the county is expected to increase from the current Kshs.
7.9 billion to over Kshs. 10 billion annually.
 Increase in public asset base is another economic gain from the project since its major
infrastructure will be located at Olkalou ASK show ground which is a government/public
institution.
 Increase in knowledge base as a result of the capacity building efforts to staff, farmers and
traders.

1.5 Project Specifics/Information on the site of the project


 The potato and vegetable processing plant will be constructed at Olkalou ASK show ground
which is situated within Olkalou municipality off Olkalou-Nyahururu road, opposite J.M
Referral hospital.
 The facility will have a capacity of producing 2000 kilograms of finished products per hour.
 The facility shall have a modern automated potato and vegetable processing equipment,
chilling unit with back-up generator, a boiler unit for steam production, water harvesting and
storage system as well as drainage system and waste management system.
 The project will be managed by the County Government of Nyandarua and funded through
the County kitty and other development partners.
 The design of the plant shall have consideration of renewable energy to reduce on industrial
waste pollution and save energy cost.
 The provision of the potato and vegetable waste energy production process shall be
incorporated in the design for future development of manure and animal feeds (as shown
inflow diagram in Section iv (B) – Specifications For A Potato And Vegetable Processing
Plant

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SECTION IV (B) – SPECIFICATIONS FOR A POTATO AND VEGETABLE PROCESSING PLANT (2000KGS PER HOUR OUTPUT
CAPACITY)

FRESH FRIES PROCESSING LINE FLOW DIAGRAM


Animal
Feeds
Proteins
Peels
Fed to
Insects
Manure

Drying Peeling Cutting/ Blanching Freezing Packaging Storage


Weighing Cleaning Washing Pre-
Slicing Cooling
Sorting
Grading

Drying Packaging Storage


1.1. Schedule A – Tenderer Proposal – Works
# Item Requirements What the tenderer shall provide Yes/No
Description
1 Structure/Build To the existing structure of size 66m*30m*5.1m high with a roofing  Artistic Impression;
ing cover of IT5 Profile sheets,  Design & Drawings – Architectural. Civil
 Construct 4mm aluminum composite wall panels and with & Structural;
adequate ventilation and lighting.  Design and Drawings for Services –
 Construct a suitable office space, with washrooms and cold store Mechanical and Electrical;
room for finished products.  Proposal with a Tabulation Chart to
 Provide industrial entrance and exit door way. demonstrate how the above shall meet the
 Provide hygienic industrial epoxy flooring finish (easy to clean, required output under the ‘ Design
chemical resistant, non-slip and durable). Requirements’ column/Mathematical
 Provide rain water goods connected to the underground water tank. Formula/Computation of the processing
 Provide Offloading and loading bay- capable of handling a tipper, capacity providing key service areas in
folk lift and or a tractor. line with existing potato and vegetable
 The use of green energy technology in the design is recommended. processing standards. It is the
NB responsibility of the tenderer to obtain the
Floor areas – existing structure =1980 SM various standards.
-Utility block =300 SM
- water treatment =400 SM
- Perimeter wall =1200 LM
- paved area =3000 SM
These areas are given for guidance only and given without warranty.

2 Potato and Design and provide;  Design and Drawings – Mechanical and
vegetable  An automated fresh potato & vegetable processing plant of Electrical;

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processing 2000kgs per hour output capacity made from food grade stainless  Proposal demonstrating how the proposed
equipment. steel. The processing line should have at least the following design meets the requirements under the
equipment: ‘requirements’ column.
PREPARATION SECTION.  Equipment and supplies should meet
I. Bunker with horizontal belt. internationally recognized food grade
II. The feed conveyor to de-stoner. standards.
III. De-stoner.  Manufacturers’ authorization.
IV. Static filter
V. Washer
VI. Vertical belt elevator
VII. Packaging equipment( for cleaned potatoes)
PEELING AND INSPECTION SECTION
I. Energy efficient peeler
II. Peeler with condensate removal system
III. Peeler support with screw conveyor
IV. Dry brush machine
V. Peristaltic pump with hopper
VI. Washer drum
VII. Flat inspection belt
CUTTING SECTION
I. Vertical screw elevator
II. Hydro cutter
III. Dewatering vibrator with gauze deck
IV. Dosing system for anti-foam
V. Double deck length grader
VI. Silver remover
BLANCHING SECTION
I. Blancher
DRYING SECTION
I. Volumetric screw dosing device
II. A suitable knife
III. Belt dryer with wire link belt

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IV. Air humidity sensor belt dryer
FREEZING AND PACKAGING SECTION
I. Combined mechanical cool/freeze tunnel with single belts
II. Transport belt, horizontal, with plastic modular belt.

N/B
In addition, the processing unit should be supported by the following:

 Exhaust fans, cyclones and factory lighting.


 Chilling unit of minimum 600 cubic meters capacity to freeze
packed fries (a complete system).
 Inputs/outputs conveyers systems to convey the raw and
ready potato products.
 A suitable industrial fuel fired boiler with the necessary
accessories and heating systems to supply steam (a complete
steam line).
 Machine fittings for the mechanical works (platforms,
intakes, packaging, storage facility, waste outlet).
 Assorted plumbing and fittings for the inlet and outlet steam
and water flow.
 Appropriate laboratory equipment for testing the raw
materials and the finished products.

NB.
1. The automatic fresh potato and vegetables plant is
expected to consist of feeder, cleaner, friction peeler,
picking platform, cutter, first blancher, dewatering
unit, dryer, pre-cooler, quick freezer and a complete
automatic form fill packaging line.
2. It is expected that the tenderer shall have in their
tender the sum for ALL the equipment and

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accessories, either called for or not called for in this
specifications, as the client needs to have a
functioning plant.

3 External works  Complete sewer treatment plant and waste ducts for waste  Design and Drawings – Mechanical and
water management. civil works.
 Design & construct 200,000 litres capacity underground water  Architectural and structural drawings
storage tank  CCTV manuals/brochures
 Mount 30,000 litres capacity elevated steel water tank.
 Construct paved drive way and parking area.
 Construct a perimeter wall to include a main gate to the
proposed processing plant and gate house.
 Design and construct a utility block comprising of boiler room,
compressor room, generator room, power house and a
workshop
 Design and construct storm water drainage system
 Install CCTV security system
 General land-scaping
 Design and construct a suitable weigh bridge for weighing
trucks.

1.2 Schedule B – Tenderer Proposal - Supplies

# Item Requirements What the tenderer shall provide Yes/No


Description

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1 Electricals and The plant facility requires a diesel-powered generator and an electrical  Brochure with specifications;
Standby distribution system.  Manufacturers authorization;
Generator  A suitable generator with capacity to support all the components in the
plant.

2 Firefighting Provide for the following categories of fire extinguishers and fire reticulation  Manufacture authorization
equipment installation:  Fire equipment points and
I. Water assembly point
II. Carbon dioxide
III. Dry chemical powder
3 Potato boxes  Heavy duty food grade well ventilated potato boxes of 50kgs capacity (1500  Manufacturers authorization;
pcs) for storing frozen products.

4 Fork lift Able to lift heavy potato boxes weighing at least 1.3 ton and stack to a height of  Manufacturer authorization.
6meters high and other heavy materials.

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1.3 Schedule C - Warranty and Other Requirements

# Item Description Requirement Meets ALL


requirements
(YES/NO)
1 Sales & Support  Bidder statement in bidder letterhead – for all supplies
Bidder to specify the location and contacts of the sales and service under the contract.
Centre (s) where after sales support & service can be obtained. The
center should be in-country
2. Warranty - Bidder to provide a written commitment  Bidder statement in bidder letterhead – for all supplies
to the effect that should they win the tender, they shall provide a 12- under the contract.
month warranty after commissioning, transferable from the  Warranty transfer from the manufacturer of the
manufacturer (if supplier is not the manufacturer) equipment in question
3. Delivery timelines  Gantt chart with key milestones
Bidders should provide a Gantt chart or a supply schedule/work plan for
the supply of the plant that includes all major milestones, and details the
manufacturing, testing and delivery schedules and Installation,
commissioning and training and skills transfer.
4 Emergency spare parts for one year to be included in the bid price  Completed Schedule of Prices with emergency parts

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1.4 Factory Acceptance Test (FAT)

The Procuring Entity or its representative shall carry out inspections and /or tests on the equipment to confirm their conformity to the Contract
specifications. The Technical Specifications shall specify what inspections and tests shall be carried out. The Procuring Entity shall notify the
Supplier in writing, in a timely manner, of the identity of any representatives retained for these purposes.
The inspections and tests will be conducted at the premises of the Supplier or its subcontractor(s) and reasonable facilities and assistance,
including access to drawings and production data, shall be furnished to the inspectors at no charge to the Procuring Entity.
Should any inspected or tested equipment fail to conform to the Specifications, the Procuring Entity may reject the equipment, and the Supplier shall
replace the rejected equipment to meet specification requirements free of cost to the Procuring Entity.
The Procuring Entity’s right to inspect, test and, where necessary, reject equipment after the equipment’s arrival in the Procuring Entity’s country
shall in no way be limited by reason of the equipment having previously been inspected, tested, and passed by the Procuring Entity or its
representative prior to the equipment shipment from the country of origin.

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SECTION V – EVALUATION CRITERIA

1.1. Preliminary Evaluation (Mandatory Requirements)

Tenderers must meet ALL Mandatory Requirements under Section II (B) – Appendix to
Instructions to Tenderers – Section 1.3 Table 1 – Mandatory Requirements. Tenderers that shall
not meet the mandatory requirements shall be dropped at this stage without further reference.

1.2. Tenderer Design/Proposal Evaluation ( Technical evaluation)

ITEM DESCRIPTION MARKS MAX.


SCORED MARKS
1 Tender questionnaire form 5
 Completely filled……………………………….5
marks
 Not filled………………………………………..0
marks
2 Key personnel( attach evidence)
Director of the firm 3 20
 Degree in relevant engineering field………..…3 marks
 Diploma in relevant field…………………..…..2 marks
 Certificate in relevant field…………………..…1
marks

At least 1.no degree key personnel in relevant field 4


Mechanical engineer
 Over 10 years relevant experience………….…4 marks
 Over 5 years relevant experience…………….. 3marks
 Under 5 years relevant experience……………..2 mark

At least 1.no degree key personnel in relevant field 3


Architect
 Over 10 years relevant experience……………..3marks
 Over 5 years relevant experience………….......2 marks
 Under 5 years relevant experience……………...1 mark

At least 1.no degree key personnel in relevant field 3


Civil / structural engineer
 Over 10 years relevant experience……..........3 marks
 Over 5 years relevant experience…………….2 marks
 Under 5 years relevant experience………….…1 mark
At least 1.no degree key personnel in relevant field 3
Quantity surveyor
 Over 10 years relevant experience…………….3 marks
 Over 5 years relevant experience………….….2 marks
 Under 5 years relevant experience……………1 mark

At least 2 NO. certificate key personnel in relevant field 4


 Over 5 years relevant experience………….…2 marks
 Under 5 years relevant experience…………...1 mark
3 Work experience ( provide evidence) 20
 Contract completed in the last 5 years( max of 5 no.
projects)
 Project of similar nature…………………………..4
marks
 Project of similar nature but of lower value…….3
marks
 No completed project of similar nature………….0
marks
Work experience in the East Africa region ( provide 10
evidence)
 Past work experience in the east Africa
region……………………………………………...10
marks
 Past work experience in other regions in
Africa………………………………………………..5
marks
 No past work experience in the East Africa
region................................................................0 marks
4 Ongoing projects – provide evidence 8
 2 no. projects of similar nature…………………4
marks
 No ongoing projects of similar nature………….0
marks
5 Schedule of contractors equipment ( proof of ownership/ 15
lease)
 Relevant equipment…………………………15 marks
 No equipment …………………………………0 marks
6 Financial report 10
a) Audited financial report ( last 3 years)
 Average annual turnover equal to or greater than the
cost of the project………………………..….10 marks
 Average annual turnover above 50% but below 100%
of the cost of the project………………6 marks
 Average annual turnover below 50 % of the cost of the
project………………………………………3 marks

b) evidence of financial resources ( cash in hand, lines of 10


credit, overdraft facilities etc)
 Has financial resources to finance the projected
monthly cash flow for three months………….10 marks
 Has financial resources less the projected monthly
cash flow………………………………………5 marks

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Has not indicated sources of financial
resources.........................................................0 marks
7 Litigation history 2
 Dully filled .………………………………….2 marks
 Not filled……………………………………….0 marks
TOTAL MARKS 100

Any bidder who scores 70 points and above shall be considered for further evaluation
(financial evaluation)
NB * monthly cash flow = tender sum/ contract period.

1.3. Financial Evaluation


Tenderers that pass the technical evaluation shall be subjected to the financial evaluation in two
stages as follows;
1. Tender sums
2. Tender rates and arithmetic errors.

1.4. Award
The tenderer that shall have quoted the lowest from Financial Evaluation above shall be considered
for award subject to post qualification evaluation.

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SECTION VI - CONDITIONS OF CONTRACT
1. Definitions

1.1 In this Contract, except where context otherwise requires, the following terms shall
be interpreted as indicated;

“Bill of Quantities” means the priced and completed Bill of Quantities forming part
of the tender.

“Compensation Events” are those defined in Clause 24 hereunder.

“The Completion Date” means the date of completion of the Works as certified by
the Project Manager, in accordance with Clause 31.

“The Contract” means the agreement entered into between the Employer and the
Contractor as recorded in the Agreement Form and signed by the parties including
all attachments and appendices thereto and all documents incorporated by reference
therein to execute, complete, and maintain the Works,

“The Contractor” refers to the person or corporate body whose tender to carry out
the Works has been accepted by the Employer.

“The Contractor’s Tender” is the completed tendering document submitted by the


Contractor to the Employer.

“The Contract Price” is the price stated in the Letter of Acceptance and thereafter
as adjusted in accordance with the provisions of the Contract.

“Days” are calendar days; “Months” are calendar months.

“A Defect” is any part of the Works not completed in accordance with the Contract.

“The Defects Liability Certificate” is the certificate issued by Project Manager


upon correction of defects by the Contractor.

“The Defects Liability Period” is the period named in the Contract Data and
calculated from the Completion Date.

“Drawings” include calculations and other information provided or approved by the


Project Manager for the execution of the Contract.

“Day works” are Work inputs subject to payment on a time basis for labor and the
associated materials and plant.

“Employer”, or the “Procuring entity” as defined in the Public Procurement


Regulations (i.e. Central or Local Government administration, Universities, Public
Institutions and Corporations, etc.) is the party who employs the Contractor to carry
out the Works.

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“Equipment” is the Contractor’s machinery and vehicles brought temporarily to the
Site for the execution of the Works.

“The Intended Completion Date” is the date on which it is intended that the
Contractor shall complete the Works. The Intended Completion Date may be
revised only by the Project Manager by issuing an extension of time or an
acceleration order.

“Materials” are all supplies, including consumables, used by the Contractor for
incorporation in the Works.

“Plant” is any integral part of the Works that shall have a mechanical, electrical,
chemical, or biological function.

“Project Manager” is the person named in the Appendix to Conditions of Contract


(or any other competent person appointed by the Employer and notified to the
Contractor, to act in replacement of the Project Manager) who is responsible for
supervising the execution of the Works and administering the Contract and shall be
an “Architect” or a “Quantity Surveyor” registered under the Architects and Quantity
Surveyors Act Cap 525 or an “Engineer” registered under Engineers Registration
Act Cap 530.

“Site” is the area defined as such in the Appendix to Condition of Contract.

“Site Investigation Reports” are those reports that may be included in the tendering
documents which are factual and interpretative about the surface and subsurface
conditions at the Site.

“Specifications” means the Specifications of the Works included in the Contract and
any modification or addition made or approved by the Project Manager.

“Start Date” is the latest date when the Contractor shall commence execution of the
Works. It does not necessarily coincide with the Site possession date(s).

“A Subcontractor” is a person or corporate body who has a Contract with the


Contractor to carry out a part of the Work in the Contract, which includes Work on
the Site.

“Temporary works” are works designed, constructed, installed, and removed by the
Contractor which are needed for construction or installation of the Works.

“A Variation” is an instruction given by the Project Manager which varies the Works.

“The Works” are what the Contract requires the Contractor to construct, install, and
turnover to the Employer, as defined in the Appendix to Conditions of Contract.

2. Interpretation

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2.1 In interpreting these Conditions of Contract, singular also means plural, male also
means female or neuter, and the other way around. Headings have no significance.
Words have their normal meaning in English Language unless specifically defined.
The Project Manager will provide instructions clarifying queries about these
Conditions of Contract.

2.2 If sectional completion is specified in the Appendix to Conditions of Contract,


reference in the Conditions of Contract to the Works, the Completion Date and the
Intended Completion Date apply to any section of the Works (other than references
to the Intended Completion Date for the whole of the Works).

2.3 The following documents shall constitute the Contract documents and shall be
interpreted in the following order of priority;

(1) Agreement,
(2) Letter of Acceptance,
(3) Contractor’s Tender,
(4) Appendix to Conditions of Contract,
(5) Conditions of Contract,
(6) Specifications,
(7) Drawings,
(8) Bill of Quantities,
(9) Any other documents listed in the Appendix to Conditions of Contract as
forming part of the Contract.

Immediately after the execution of the Contract, the Project Manager shall
furnish both the Employer and the Contractor with two copies each of all the Contract
documents. Further, as and when necessary the Project Manager shall furnish the
Contractor [always with a copy to the Employer] with three [3] copies of such further
drawings or details or descriptive schedules as are reasonably necessary either to
explain or amplify the Contract drawings or to enable the Contractor to carry out and
complete the Works in accordance with these Conditions.

3. Language and Law

3.1 Language of the Contract and the law governing the Contract shall be English
language and the Laws of Kenya respectively unless
otherwise stated.

4 Project Manager’s Decisions

4.1 Except where otherwise specifically stated, the Project Manager will decide
contractual matters between the Employer and the Contractor in the role representing
the Employer.

5 Delegation

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5.1 The Project Manager may delegate any of his duties and responsibilities to others
after notifying the Contractor.

6 Communications

6.1 Communication between parties shall be effective only when in writing. A notice
shall be effective only when it is delivered.

7 Subcontracting

7.1 The Contractor may subcontract with the approval of the Project Manager, but may
not assign the Contract without the approval of the Employer in writing.
Subcontracting shall not alter the Contractor’s obligations.

8 Other Contractors

8.1 The Contractor shall cooperate and share the Site with other contractors, public
authorities, utilities etc. as listed in the Appendix to Conditions of Contract and also
with the Employer, as per the directions of the Project Manager. The Contractor
shall also provide facilities and services for them. The Employer may modify the
said List of Other Contractors etc., and shall notify the Contractor of any such
modification.

9 Personnel

9.1 The Contractor shall employ the key personnel named in the Qualification
Information, to carry out the functions stated in the said Information or other
personnel approved by the Project Manager. The Project Manager will approve any
proposed replacement of key personnel only if their relevant qualifications and
abilities are substantially equal to or better than those of the personnel listed in the
Qualification Information. If the Project Manager asks the Contractor to remove a
person who is a member of the Contractor’s staff or work force, stating the reasons,
the Contractor shall ensure that the person leaves the Site within seven days and has
no further connection with the Work in the Contract.

10 Works

10.1 The Contractor shall construct and install the Works in accordance with the
Specifications and Drawings. The Works may commence on the Start Date and shall
be carried out in accordance with the Program submitted by the Contractor, as
updated with the approval of the Project Manager, and complete them by the
Intended Completion Date.

11 Safety and Temporary Works

11.1 The Contractor shall be responsible for the design of temporary works. However
before erecting the same, he shall submit his designs including specifications and

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drawings to the Project Manager and to any other relevant third parties for their
approval. No erection of temporary works shall be done until such approvals are
obtained.

11.2 The Project Manager’s approval shall not alter the Contractor’s responsibility for
design of the Temporary works and all drawings prepared by the Contractor for the
execution of the temporary or permanent Works, shall be subject to prior approval
by the Project Manager before they can be used.

11.3 The Contractor shall be responsible for the safety of all activities on the Site.

12. Discoveries

12.1 Anything of historical or other interest or of significant value unexpectedly


discovered on Site shall be the property of the Employer. The Contractor shall
notify the Project Manager of such discoveries and carry out the Project Manager’s
instructions for dealing with them.

13. Work Program

13.1 Within the time stated in the Appendix to Conditions of Contract, the Contractor
shall submit to the Project Manager for approval a program showing the general
methods, arrangements, order, and timing for all the activities in the Works. An
update of the program shall be a program showing the actual progress achieved on
each activity and the effect of the progress achieved on the timing of the remaining
Work, including any changes to the sequence of the activities.

The Contractor shall submit to the Project Manager for approval an updated program
at intervals no longer than the period stated in the Appendix to Conditions of
Contract. If the Contractor does not submit an updated program within this period,
the Project Manager may withhold the amount stated in the said Appendix from the
next payment certificate and continue to withhold this amount until the next payment
after the date on which the overdue program has been submitted. The Project
Manager’s approval of the program shall not alter the Contractor’s obligations. The
Contractor may revise the program and submit it to the Project Manager again at any
time. A revised program shall show the effect of Variations and Compensation
Events.

14. Possession of Site

14.1 The Employer shall give possession of all parts of the Site to the Contractor. If
possession of a part is not given by the date stated in the Appendix to Conditions of
Contract, the Employer will be deemed to have delayed the start of the relevant
activities, and this will be a Compensation Event.

15. Access to Site

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15.1 The Contractor shall allow the Project Manager and any other person authorized by
the Project Manager, access to the Site and to any place where work in connection
with the Contract is being carried out or is intended to be carried out.

16. Instructions

16.1 The Contractor shall carry out all instructions of the Project Manager which are in
accordance with the Contract.

17. Extension or Acceleration of Completion Date

17.1 The Project Manager shall extend the Intended Completion Date if a Compensation
Event occurs or a variation is issued which makes it impossible for completion to be
achieved by the Intended Completion Date without the Contractor taking steps to
accelerate the remaining Work, which would cause the Contractor to incur additional
cost. The Project Manager shall decide whether and by how much to extend the
Intended Completion Date within 21 days of the Contractor asking the Project
Manager in writing for a decision upon the effect of a Compensation Event or
variation and submitting full supporting information. If the Contractor has failed to
give early warning of a delay or has failed to cooperate in dealing with a delay, the
delay caused by such failure shall not be considered in assessing the new (extended)
Completion Date.

17.2 No bonus for early completion of the Works shall be paid to the Contractor by the
Employer.

18. Management Meetings

18.1 A Contract management meeting shall be held monthly and attended by the Project
Manager and the Contractor. Its business shall be to review the plans for the
remaining Work and to deal with matters raised in accordance with the early warning
procedure. The Project Manager shall record the minutes of management meetings
and provide copies of the same to those attending the meeting and the Employer.
The responsibility of the parties for actions to be taken shall be decided by the
Project Manager either at the management meeting or after the management meeting
and stated in writing to all who attended the meeting.

19. Early Warning

19.1 The Contractor shall warn the Project Manager at the earliest opportunity of specific
likely future events or circumstances that may adversely affect the quality of the
Work, increase the Contract Price or delay the execution of the Works. The Project
Manager may require the Contractor to provide an estimate of the expected effect of
the future event or circumstance on the Contract Price and Completion Date. The
estimate shall be provided by the Contractor as soon as reasonably possible.

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19.2 The Contractor shall cooperate with the Project Manager in making and considering
proposals on how the effect of such an event or circumstance can be avoided or
reduced by anyone involved in the Work and in carrying out any resulting
instructions of the Project Manager.

20. Defects

20.1 The Project Manager shall inspect the Contractor’s work and notify the Contractor of
any defects that are found. Such inspection shall not affect the Contractor’s
responsibilities. The Project Manager may instruct the Contractor to search for a
defect and to uncover and test any Work that the Project Manager considers may
have a defect. Should the defect be found, the cost of uncovering and making good
shall be borne by the Contractor, However, if there is no defect found, the cost of
uncovering and making good shall be treated as a variation and added to the Contract
Price.

20.2 The Project Manager shall give notice to the Contractor of any defects before the end
of the Defects Liability Period, which begins at Completion, and is defined in the
Appendix to Conditions of Contract. The Defects Liability Period shall be extended
for as long as defects remain to be corrected.

20.3 Every time notice of a defect is given, the Contractor shall correct the notified defect
within the length of time specified by the Project Manager’s notice. If the
Contractor has not corrected a defect within the time specified in the Project
Manager’s notice, the Project Manager will assess the cost of having the defect
corrected by other parties and such cost shall be treated as a variation and be
deducted from the Contract Price.

21. Bills of Quantities

21.1 The Bills of Quantities shall contain items for the construction, installation, testing
and commissioning of the Work to be done by the Contractor. The Contractor will
be paid for the quantity of the Work done at the rate in the Bills of Quantities for
each item.

21.2 If the final quantity of the Work done differs from the quantity in the Bills of
Quantities for the particular item by more than 25 percent and provided the change
exceeds 1 percent of the Initial Contract price, the Project Manager shall adjust the
rate to allow for the change.

21.3 If requested by the Project Manager, the Contractor shall provide the Project
Manager with a detailed cost breakdown of any rate in the Bills of Quantities.

22. Variations

22.1 All variations shall be included in updated programs produced by the Contractor.

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22.2 The Contractor shall provide the Project Manager with a quotation for carrying out
the variations when requested to do so. The Project Manager shall assess the
quotation, which shall be given within seven days of the request or within any longer
period as may be stated by the Project Manager and before the Variation is ordered.

22.3 If the work in the variation corresponds with an item description in the Bills of
Quantities and if in the opinion of the Project Manager, the quantity of work is not
above the limit stated in Clause 21.2 or the timing of its execution does not cause the
cost per unit of quantity to change, the rate in the Bills of Quantities shall be used to
calculate the value of the variation. If the cost per unit of quantity changes, or
if the nature or timing of the work in the variation does not correspond with items in
the Bills of Quantities, the quotation by the Contractor shall be in the form of new
rates for the relevant items of Work.

22.4 If the Contractor’s quotation is unreasonable, the Project Manager may order the
variation and make a change to the Contract price, which shall be based on the
Project Manager’s own forecast of the effects of the variation on the Contractor’s
costs.

22.5 If the Project Manager decides that the urgency of varying the Work would prevent a
quotation being given and considered without delaying the Work, no quotation shall
be given and the variation shall be treated as a Compensation Event.

22.6 The Contractor shall not be entitled to additional payment for costs that could have
been avoided by giving early warning.

22.7 When the Program is updated, the Contractor shall provide the Project Manager with
an updated cash flow forecast.

23. Payment Certificates, Currency of Payments and Advance Payments

23.1 The Contractor shall submit to the Project Manager monthly applications for
payment giving sufficient details of the Work done and materials on Site and the
amounts which the Contractor considers himself to be entitled to. The Project
Manager shall check the monthly application and certify the amount to be paid to the
Contractor within 14 days. The value of Work executed and payable shall be
determined by the Project Manager.

23.2 The value of Work executed shall comprise the value of the quantities of the items in
the Bills of Quantities completed, materials delivered on Site, variations and
compensation events. Such materials shall become the property of the Employer
once the6 Employer has paid the Contractor for their value. Thereafter, they shall
not be removed from Site without the Project Manager’s instructions except for use
upon the Works.

23.3 Payments shall be adjusted for deductions for retention. The Employer shall pay the
Contractor the amounts certified by the Project Manager within 30 days of the date
of issue of each certificate. If the Employer makes a late payment, the Contractor

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shall be paid simple interest on the late payment in the next payment. Interest shall
be calculated on the basis of number of days delayed at a rate three percentage points
above the Central Bank of Kenya’s average rate for base lending prevailing as of the
first day the payment becomes overdue.

23.4 If an amount certified is increased in a later certificate or as a result of an award by


an Arbitrator, the Contractor shall be paid interest upon the delayed payment as set
out in this clause. Interest shall be calculated from the date upon which the
increased amount would have been certified in the absence of dispute.

23.5 Items of the Works for which no rate or price has been entered in will not be paid for
by the Employer and shall be deemed covered by other rates and prices in the
Contract.

23.6 The Contract Price shall be stated in Kenya Shillings. All payments to the
Contractor shall be made in Kenya Shillings and foreign currency in the proportion
indicated in the tender, or agreed prior to the execution of the Contract Agreement
and indicated therein. The rate of exchange for the calculation of the amount of
foreign currency payment shall be the rate of exchange indicated in the Appendix to
Conditions of Contract. If the Contractor indicated foreign currencies for payment
other than the currencies of the countries of origin of related goods and services, the
Employer reserves the right to pay the equivalent at the time of payment in the
currencies of the countries of such goods and services. The Employer and the
Project Manager shall be notified promptly by the Contractor of a changes in the
expected foreign currency requirements of the Contractor during the execution of the
Works as indicated in the Schedule of Foreign Currency Requirements and the
foreign and local currency portions of the balance of the Contract Price shall then be
amended by agreement between Employer and the Contractor in order to reflect
appropriately such changes.

23.7 In the event that an advance payment is granted, the following shall apply:

a) On signature of the Contract, the Contractor shall at his request, and without
furnishing proof of expenditure, be entitled to an advance of 10% (ten
percent) of the original amount of the Contract. The advance shall not be
subject to retention money.

b) No advance payment may be made before the Contractor has submitted proof
of the establishment of deposit or a directly liable guarantee satisfactory to
the Employer in the amount of the advance payment. The guarantee shall be
in the same currency as the advance.

c) Reimbursement of the lump sum advance shall be made by deductions from


the Interim payments and where applicable from the balance owing to the
Contractor. Reimbursement shall begin when the amount of the sums due
under the Contract reaches 20% of the original amount of the Contract. It
shall have been completed by the time 80% of this amount is reached.

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The amount to be repaid by way of successive deductions shall be calculated by means of
the formula:

R = A(x1 – x11)
80 – 20
Where:

R = the amount to be reimbursed


A = the amount of the advance which has been granted
X1 = the amount of proposed cumulative payments as a percentage
of the original amount of the Contract. This figure will
exceed 20% but not exceed 80%.
X11 = the amount of the previous cumulative payments as a
percentage of the original amount of the Contract. This figure
will be below 80%but not less than 20%.
d) With each reimbursement the counterpart of the directly liable guarantee may
be reduced accordingly.

24. Compensation Events

24.1 The following issues shall constitute Compensation Events:


(a) The Employer does not give access to a part of the Site by the Site Possession
Date stated in the Appendix to Conditions of Contract.

(b) The Employer modifies the List of Other Contractors, etc., in a way that
affects the Work of the Contractor under the Contract.

(c) The Project Manager orders a delay or does not issue drawings,
specifications or instructions required for execution of the Works on time.

(d) The Project Manager instructs the Contractor to uncover or to carry out
additional tests upon the Work, which is then found to have no defects.

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

(f) Ground conditions are substantially more adverse than could reasonably have
been assumed before issuance of the Letter of Acceptance from the
information issued to tenderers (including the Site investigation reports),
from information available publicly and from a visual inspection of the Site.

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

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(h) Other contractors, public authorities, utilities, or the Employer does not work
within the dates and other constraints stated in the Contract, and they cause
delay or extra cost to the Contractor.

(i) The effects on the Contractor of any of the Employer’s risks.

(j) The Project Manager unreasonably delays issuing a Certificate of


Completion.

(k) Other compensation events described in the Contract or determined by the


Project Manager shall apply.

24.2 If a compensation event would cause additional cost or would prevent the Work
being completed before the Intended Completion Date, the Contract Price shall be
increased and/or the Intended Completion Date shall be extended. The Project
Manager shall decide whether and by how much the Contract Price shall be
increased and whether and by how much the Intended Completion Date shall be
extended.

24.3 As soon as information demonstrating the effect of each compensation event upon
the Contractor’s forecast cost has been provided by the Contractor, it shall be
assessed by the Project Manager, and the Contract Price shall be adjusted
accordingly. If the Contractor’s forecast is deemed unreasonable, the Project
Manager shall adjust the Contract Price based on the Project Manager’s own
forecast. The Project Manager will assume that the Contractor will react
competently and promptly to the event.

24.4 The Contractor shall not be entitled to compensation to the extent that the
Employer’s interests are adversely affected by the Contractor not having given early
warning or not having co-operated with the Project Manager.

24.5 Prices shall be adjusted for fluctuations in the cost of inputs only if provided for in
the Appendix to Conditions of Contract.

24.6 The Contractor shall give written notice to the Project Manager of his intention to
make a claim within thirty days after the event giving rise to the claim has first
arisen. The claim shall be submitted within thirty days thereafter.

Provided always that should the event giving rise to the claim of continuing effect,
the Contractor shall submit an interim claim within the said thirty days and a final
claim within thirty days of the end of the event giving rise to the claim.

25. Price Adjustment

25.1 The Project Manager shall adjust the Contract Price if taxes, duties and other levies
are changed between the date 30 days before the submission of tenders for the

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Contract and the date of Completion. The adjustment shall be the change in the
amount of tax payable by the Contractor.

25.2 The Contract Price shall be deemed to be based on exchange rates current at the date
of tender submission in calculating the cost to the Contractor of materials to be
specifically imported (by express provisions in the Contract Bills of Quantities or
Specifications) for permanent incorporation in the Works. Unless otherwise stated
in the Contract, if at any time during the period of the Contract exchange rates shall
be varied and this shall affect the cost to the Contractor of such materials, then the
Project Manager shall assess the net difference in the cost of such materials. Any
amount from time to time so assessed shall be added to or deducted from the
Contract Price, as the case may be.

25.3 Unless otherwise stated in the Contract, the Contract Price shall be deemed to have
been calculated in the manner set out below and in sub-clauses 25.4 and 25.5 and
shall be subject to adjustment in the events specified thereunder;

(i) The prices contained in the Contract Bills of Quantities shall be deemed to be
based upon the rates of wages and other
Emoluments and expenses as determined by the Joint Building Council of
Kenya (J.B.C.) and set out in the schedule of basic rates issued 30 days
before the date for submission of tenders. A copy of the schedule used by the
Contractor in his pricing shall be attached in the Appendix to Conditions of
Contract.

(ii) Upon J.B.C. determining that any of the said rates of wages or other
emoluments and expenses are increased or decreased, then the Contract Price
shall be increased or decreased by the amount assessed by the Project
Manager based upon the difference, expressed as a percentage, between the
rate set out
in the schedule of basic rates issued 30 days before the date for submission of
tenders and the rate published by the J.B.C. and applied to the quantum of
labor incorporated within the amount of Work remaining to be executed at
the date of publication of such increase or decrease.

(iii) No adjustment shall be made in respect of changes in the rates of wages and
other emoluments and expenses which occur after the date of Completion
except during such other period as may be granted as an extension of time
under clause 17.0 of these Conditions.

25.4 The prices contained in the Contract Bills of Quantities shall be deemed to be based
upon the basic prices of materials to be permanently incorporated in the Works as
determined by the J.B.C. and set out in the schedule of basic rates issued 30 days
before the date for submission of tenders. A copy of the schedule used by the
Contractor in his pricing shall be attached in the Appendix to Conditions of Contract.

25.5 Upon the J.B.C. determining that any of the said basic prices are increased or
decreased then the Contract Price shall be increased or decreased by the amount to

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be assessed by the Project Manager based upon the difference between the price set
out in the schedule of basic rates issued 30 days before the date for submission of
tenders and the rate published by the J.B.C. and applied to the quantum of the
relevant materials which have not been taken into account in arriving at the amount
of any interim certificate under clause 23 of these Conditions issued before the date
of publication of such increase or decrease.

25.6 No adjustment shall be made in respect of changes in basic prices of materials which
occur after the date for Completion except during such other period as may be
granted as an extension of time under clause 17.0 of these Conditions.

25.7 The provisions of sub-clause 25.1 to 25.2 herein shall not apply in respect of any
materials included in the schedule of basic rates.

26. Retention

26.1 The Employer shall retain from each payment due to the Contractor the proportion
stated in the Appendix to Conditions of Contract until Completion of the whole of
the Works. On Completion of the whole of the Works, half the total amount retained
shall be repaid to the Contractor and the remaining half when the Defects Liability
Period has passed and the Project Manager has certified that all defects notified to
the Contractor before the end of this period have been corrected.

27. Liquidated Damages

27.1 The Contractor shall pay liquidated damages to the Employer at the rate stated in the
Appendix to Conditions of Contract for each day that the actual Completion Date is
later than the Intended Completion Date. The Employer may deduct liquidated
damages from payments due to the Contractor. Payment of liquidated damages shall
not alter the Contractor’s liabilities.

27.2 If the Intended Completion Date is extended after liquidated damages have been
paid, the Project Manager shall correct any overpayment of liquidated damages by
the Contractor by adjusting the next payment certificate. The Contractor shall be
paid interest on the overpayment, calculated from the date of payment to the date of
repayment, at the rate specified in Clause 23.30

28. Securities

28.1 The Performance Security shall be provided to the Employer no later than the date
specified in the Letter of Acceptance and shall be issued in an amount and form and
by a reputable bank acceptable to the Employer, and denominated in Kenya
Shillings. The Performance Security shall be valid until a date 30 days beyond the
date of issue of the Certificate of Completion.

29. Day works

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29.1 If applicable, the day works rates in the Contractor’s tender shall be used for small
additional amounts of Work only when the Project Manager has given written
instructions in advance for additional work to be paid for in that way.

29.2 All work to be paid for as day works shall be recorded by the Contractor on Forms
approved by the Project Manager. Each completed form shall be verified and signed
by the Project Manager within two days of the Work being done.

29.3 The Contractor shall be paid for day works subject to obtaining signed day works
forms.

30. Liability and Insurance

30.1 From the Start Date until the Defects Correction Certificate has been issued, the
following are the Employer’s risks:

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

(i) use or occupation of the Site by the Works or for the purpose of the
Works, which is the unavoidable result of the Works, or
(ii) Negligence, breach of statutory duty or interference with any legal
right by the Employer or by any person employed by or contracted to
him except the Contractor.

(b) The risk of damage to the Works, Plant, Materials, and Equipment to the
extent that it is due to a fault of the Employer or in Employer’s design, or due
to war or radioactive contamination directly affecting the place where the
Works are being executed.

30.2 From the Completion Date until the Defects Correction Certificate has been issued,
the risk of loss of or damage to the Works, Plant, and Materials is the Employer’s
risk except loss or damage due to;

(a) A defect which existed on or before the Completion Date.

(b) An event occurring before the Completion Date, which was not itself the
Employer’s risk.

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

30.3 From the Start Date until the Defects Correction Certificate has been issued, the risks
of personal injury, death and loss of or damage to property (including, without
limitation, the Works, Plant, Materials, and Equipment) which are not Employer’s
risk are Contractor’s risks.

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The Contractor shall provide, in the joint names of the Employer and the Contractor,
insurance cover from the Start Date to the end of the Defects Liability Period, in the
amounts stated in the Appendix to Conditions of Contract for the following events;

(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 the Contract, and

(d) Personal injury or death.

30.4 Policies and certificates for insurance shall be delivered by the Contractor to the
Project Manager for the Project Manager’s approval before the Start Date. All such
insurance shall provide for compensation required to rectify the loss or damage
incurred.

30.5 If the Contractor does not provide any of the policies and certificates required, the
Employer may effect the insurance which the Contractor should have provided and
recover the premiums from payments otherwise due to the Contractor or, if no
payment is due, the payment of the premiums shall be a debt due.

30.6 Alterations to the terms of an insurance shall not be made without the approval of the
Project Manager. Both parties shall comply with any conditions of insurance
policies.

31. Completion and taking over

31.1 Upon deciding that the Works are complete, the Contractor shall issue a written
request to the Project Manager to issue a Certificate of Completion of the Works.
The Employer shall take over the Site and the Works within seven [7] days of the
Project Manager’s issuing a Certificate of Completion.

32. Final Account

32.1 The Contractor shall issue the Project Manager with a detailed account of the total
amount that the Contractor considers payable to him by the Employer under the
Contract before the end of the Defects Liability Period. The Project Manager shall
issue a Defects Liability Certificate and certify any final payment that is due to the
Contractor within 30 days of receiving the Contractor’s account if it is correct and
complete. If it is not, the Project Manager shall issue within 30 days a schedule that
states the scope of the corrections or additions that are necessary. If the final
account is still unsatisfactory after it has been resubmitted, the Project Manager shall
decide on the amount payable to the Contractor and issue a Payment Certificate. The
Employer shall pay the Contractor the amount due in the Final Certificate within 60
days.

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33. Termination

33.1 The Employer or the Contractor may terminate the Contract if the other party causes
a fundamental breach of the Contract. These fundamental breaches of Contract shall
include, but shall not be limited to, the following;

(a) the Contractor stops work for 30 days when no stoppage of work is shown on
the current program and the stoppage has not been authorized by the Project
Manager;

(b) the Project Manager instructs the Contractor to delay the progress of the
Works, and the instruction is not withdrawn within 30 days;

(c) the Contractor is declared bankrupt or goes into liquidation other than for a
reconstruction or amalgamation;

(d) A payment certified by the Project Manager is not paid by the Employer to
the Contractor within 30 days (for Interim Certificate) or 60 days (for Final
Certificate) of issue.

(e) the Project Manager gives notice that failure to correct a particular defect is a
fundamental breach of Contract and the Contractor fails to correct it within a
reasonable period of time determined by the Project Manager;

(f) The Contractor does not maintain a security, which is required.

33.2 When either party to the Contract gives notice of a breach of Contract to the Project
Manager for a cause other than those listed under Clause 33.1 above, the Project
Manager shall decide whether the breach is fundamental or not.

33.3 Notwithstanding the above, the Employer may terminate the Contract for
convenience.

33.4 If the Contract is terminated, the Contractor shall stop work immediately, make the
Site safe and secure, and leave the Site as soon as reasonably possible. The Project
Manager shall immediately thereafter arrange for a meeting for the purpose of taking
record of the Works executed and materials, goods, equipment and temporary
buildings on Site.

34. Payment Upon Termination

34.1 If the Contract is terminated because of a fundamental breach of Contract by the


Contractor, the Project Manager shall issue a certificate for the value of the Work
done and materials ordered and delivered to Site up to the date of the issue of the
certificate. Additional liquidated damages shall not apply. If the total amount due to

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the Employer exceeds any payment due to the Contractor, the difference shall be a
debt payable by the Contractor.

34.2 If the Contract is terminated for the Employer’s convenience or because of a


fundamental breach of Contract by the Employer, the Project Manager shall issue a
certificate for the value of the Work done, materials ordered, the reasonable cost of
removal of equipment, repatriation of the Contractor’s personnel employed solely on
the Works, and the Contractor’s costs of protecting and securing the Works.

34.3 The Employer may employ and pay other persons to carry out and complete the
Works and to rectify any defects and may enter upon the Works and use all materials
on the Site, plant, equipment and temporary works.

34.4 The Contractor shall, during the execution or after the completion of the Works
under this clause remove from the Site as and when required, within such reasonable
time as the Project Manager may in writing specify, any temporary buildings, plant,
machinery, appliances, goods or materials belonging to or hired by him, and in
default the Employer may (without being responsible for any loss or damage)
remove and sell any such property of the Contractor, holding the proceeds less all
costs incurred to the credit of the Contractor.

Until after completion of the Works under this clause the Employer shall not be
bound by any other provision of this Contract to make any payment to the
Contractor, but upon such completion as aforesaid and the verification within a
reasonable time of the accounts therefore the Project Manager shall certify the
amount of expenses properly incurred by the Employer and, if such amount added to
the money paid to the Contractor before such determination exceeds the total amount
which would have been payable on due completion in accordance with this Contract
the difference shall be a debt payable to the Employer by the Contractor; and if the
said amount added to the said money be less than the said total amount, the
difference shall be a debt payable by the Employer to the Contractor.

35. Release from Performance

35.1 If the Contract is frustrated by the outbreak of war or by any other event entirely
outside the control of either the Employer or the Contractor, the Project Manager
shall certify that the Contract has been frustrated. The Contractor shall make the Site
safe and stop Work as quickly as possible after receiving this certificate and shall be
paid for all Work carried out before receiving it.

36. Corrupt gifts and payments of commission

The Contractor shall not;

(a) Offer or give or agree to give to any person in the service of the

Employer any gift or consideration of any kind as an inducement or reward for doing
or forbearing to do or for having done or forborne to do any act in relation to the

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obtaining or execution of this or any other Contract for the Employer or for showing
or forbearing to show favor or disfavor to any person in relation to this or any other
contract for the Employer.

(b) Enter into this or any other contract with the Employer in connection with which
commission has been paid or agreed to be paid by him or on his behalf or to his
knowledge, unless before the Contract is made particulars of any such commission
and of the terms and conditions of any agreement for the payment thereof have been
disclosed in writing to the Employer.

Any breach of this Condition by the Contractor or by anyone employed by him or


acting on his behalf (whether with or without the knowledge of the Contractor) shall
be an offence under the provisions of the Public Procurement Regulations issued
under The Exchequer and Audit Act Cap 412 of the Laws of Kenya.

37. Settlement of Disputes

37.1 In case any dispute or difference shall arise between the Employer or the Project
Manager on his behalf and the Contractor, either during the progress or after the
completion or termination of the Works, such dispute shall be notified in writing by
either party to the other with a request to submit it to arbitration and to concur in the
appointment of an Arbitrator within thirty days of the notice. The dispute shall be
referred to the arbitration and final decision of a person to be agreed between the
parties. Failing agreement to concur in the appointment of an Arbitrator, the
Arbitrator shall be appointed by the Chairman or Vice Chairman of any of the
following professional institutions;

(i) Architectural Association of Kenya


(ii) Institute of Quantity Surveyors of Kenya
(iii) Association of Consulting Engineers of Kenya
(iv) Chartered Institute of Arbitrators (Kenya Branch)
(v) Institution of Engineers of Kenya
On the request of the applying party. The institution written to first by the aggrieved
party shall take precedence over all other institutions.

37.2 The arbitration may be on the construction of this Contract or on any matter or thing
of whatsoever nature arising thereunder or in connection therewith, including any
matter or thing left by this Contract to the discretion of the Project Manager, or the
withholding by the Project Manager of any certificate to which the Contractor may
claim to be entitled to or the measurement and valuation referred to in clause 23.0 of
these conditions, or the rights and liabilities of the parties subsequent to the
termination of Contract.

37.3 Provided that no arbitration proceedings shall be commenced on any dispute or


difference where notice of a dispute or difference has not been given by the applying
party within ninety days of the occurrence or discovery of the matter or issue giving
rise to the dispute.

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37.4 Notwithstanding the issue of a notice as stated above, the arbitration of such a
dispute or difference shall not commence unless an attempt has in the first instance
been made by the parties to settle such dispute or difference amicably with or
without the assistance of third parties. Proof of such attempt shall be required.

37.5 Notwithstanding anything stated herein the following matters may be referred to
arbitration before the practical completion of the Works or abandonment of the
Works or termination of the Contract by either party:

37.5.1 The appointment of a replacement Project Manager upon the said person
ceasing to act.

37.5.2 Whether or not the issue of an instruction by the Project Manager is


empowered by these Conditions.

37.5.3 Whether or not a certificate has been improperly withheld or is not in


accordance with these Conditions.

37.5.4 Any dispute or difference arising in respect of war risks or war damage.

37.6 All other matters shall only be referred to arbitration after the completion or alleged
completion of the Works or termination or alleged termination of the Contract,
unless the Employer and the Contractor agree otherwise in writing.

37.7 The Arbitrator shall, without prejudice to the generality of his powers, have powers
to direct such measurements, computations, tests or valuations as may in his opinion
be desirable in order to determine the rights of the parties and assess and award any
sums which ought to have been the subject of or included in any certificate.

37.8 The Arbitrator shall, without prejudice to the generality of his powers, have powers
to open up, review and revise any certificate, opinion, decision, requirement or
notice and to determine all matters in dispute which shall be submitted to him in the
same manner as if no such certificate, opinion, decision requirement or notice had
been given.

37.9 The award of such Arbitrator shall be final and binding upon the parties.

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SECTION VII – APPENDIX TO CONDITIONS OF CONTRACT

# CONDITIONS PARTICULARS OF APPENDIX TO SECTION VI – CONDITIONS OF CONTRACT


OF
CONTRACT
REFERENCE
1 2.3 Add;
(10). SECTION III - REQUEST FOR PROPOSAL FOR DESIGN/BUILD CONTRACT.
(11). SECTION IV (A) – BACKGROUND AND PRELIMINARY INFORMATION.
(11). SECTION IV (B) - SPECIFICATIONS FOR A POTATO & VEGETABLE PROCESSING PLANT.
( 200KGS PER HOUR OUTPUT CAPACITY)
(12). Such other items requested under Section III – Request for Proposal for Design/Build Contract and Section IV (B) -
SPECIFICATIONS FOR A POTATO & VEGETABLE PROCESSING PLANT ( 200KGS PER HOUR OUTPUT
CAPACITY)
(13). This Bidding Document.
2 4 Add;
4.2. The project Manager is;
4.3. The employer is;
4.4. All matters contractual having time & cost implications MUST be agreed in writing between the Contractor and the
employers
4.5. The name and Identification of the contract is:
4.6. The works consists of;
3 10 Add;
10.2 – (1) The start date shall not be more than 30 days on signing of the contract, (2) The intended completion period is 12
months.
4 13.1 A revised/works programme shall be submitted to the employer not more than 7 days after signing of the contract.
5 14 & 15 Possession & Access to site immediately and not more than 7 days after signing of the contract.
6 20 Add;
20.4. The defects liability period shall be 6 months after practical completion of works.
7 22 Add;
22.8 – All variations – time, quantity and cost MUST be approved in writing by the employers.
8 23 Add
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# CONDITIONS PARTICULARS OF APPENDIX TO SECTION VI – CONDITIONS OF CONTRACT
OF
CONTRACT
REFERENCE
23.8 – Not withstanding sections 23.1-6, the tenderer payment proposal shall be considered and agreed with the employer at the
point of signing of the contract.
13.9 – The output VAT & Duties elements will not be paid to the contractor; however, the employer will provide output VAT &
Duties exemption certificate in the form of DA1 form.
9 26.1 The defects retention proportional shall be 10% of measured works.
Rephrase the second paragraph to read ‘On completion of the whole of the Works and the Defects Liability Period has passed and
the Project Manager has certified that all defects notified to the Contractor before the end of this period have been corrected, the
10% retention shall be paid to the contractor.

11 28.1 The performance security shall be 10% and shall be provided within 14 days from the date of notification of award and before
signing the contract. The form of the performance security shall be strictly in the format as prescribed under – Section VIII-
Standard Forms – Performance Bank Guarantee.

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SECTION VIII - STANDARD FORMS

1.1. FORM OF TENDER

TO: _________________________________ [Name of Employer) ________________________


[Date]

________________________________________________________________ [Name of
Contract]

Dear Sir,

1. In accordance with the Conditions of Contract, Specifications, Drawings and Bills of


Quantities/Schedule of Rates for the execution of the above named Works, we, the undersigned
offer to construct, install and complete such Works and remedy any defects therein for the sum
of Kshs. ______________________________________________________[Amount in
figures]Kenya
Shillings_________________________________________________________[Amount in
words]

2. We undertake, if our tender is accepted, to commence the Works as soon as is reasonably


possible after the receipt of the Employer’s Representative’s notice to commence, and to
complete the whole of the Works comprised in the Contract within the time stated in the
Appendix to Conditions of Contract.

3. We agree to abide by this tender until _____________________ [Insert date], and it shall
remain binding upon us and may be accepted at any time before that date.

4. Unless and until a formal Agreement is prepared and executed this tender together with your
written acceptance thereof, shall constitute a binding Contract between us.

5. We understand that you are not bound to accept the lowest or any tender you may receive.

6. With our signature, we attest that we have not been debarred in the past by the Public
Procurement Regulatory Authority in line with PPDA 2015, the procuring entity, the EU to
participate in this tender and we have not been associated in the inception phase of this project.

Dated this ______________________ day of


________________________20________________

Signature _________________in the capacity


of_______________________________________

Duly authorized to sign tenders for and on behalf of________ [Name of Tenderer] of
_______________________________ [Address of Tenderer]

Witness;
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Name________________________________________________________________________
_____

Address______________________________________________________________________
_____

Signature_____________________________________________________________________
_____

Date_________________________________________________________________________
______
(Amend accordingly if provided by Insurance Company)

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1.2. Form of Price Schedule of Goods/Equipment
The rates inserted here below shall be for the PROPOSED DESIGN & CONSTRUCTION, SUPPLY, DELIVERY, INSTALLATION
AND COMMISSIONING OF A POTATO AND VEGETABLE PROCEESING PLANT inclusive of all taxes and charges and
conforming to the stated specifications of Tender Negotiation Number: 834198-2020/2021 PROPOSED DESIGN & CONSTRUCTION,
SUPPLY, DELIVERY, INSTALLATION AND COMMISSIONING AND TRAINING OF A POTATO AND VEGETABLE
PROCESSING PLANT (200KGS PER HOUR OUTPUT CAPACITY)

# Item Description Requirements Quantity Unit Cost Total (KES)


1 Designs Architectural, Civil & Structural, Mechanical & Electrical All
2 Building As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL Unit
AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT ( 2000KGS PER HOUR OUTPUT CAPACITY).
3 Potato & vegetable As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL Unit
processing AND DESIGN/BUILD CONTRACT REQUIREMENTS
equipment SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT ( 2000KGS PER HOUR OUTPUT CAPACITY).
4 Electricals and As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL 1
Standby Generator AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT.
5 Potato boxes As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL 1500
AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT.
6 Fork lift As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL 2
AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT.
7 Firefighting As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL Unit
equipment AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING

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PLANT.
8 CCTV security As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL Unit
system AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT.
9 External works As per SECTION IV - APPENDIX TO REQUEST FOR PROPOSAL Unit
AND DESIGN/BUILD CONTRACT REQUIREMENTS
SPECIFICATION FOR A POTATO & VEGETABLE PROCESSING
PLANT.
10 Other costs Delivery, Installation & Testing Costs of a potato & vegetable Unit
processing plant and training of personnel.
11 Spare parts (Provide Schedule)
12 Any other costs
Sub-Total
13 Duties
14 VAT
Grand Total transferred to Form of Tender

Tenderer MUST quote for all Items.


Note (1) the expected delivery period must be in line with SECTION VI - CONDITIONS OF CONTRACT & SECTION VII - APPENDIX
TO CONDITIONS OF CONTRACT
Tender Sum carried to Form of Tender______________________________________________________ (amounts in figures and Words)

Signature of Tenderer _______________________________________________________ (Signature/Name of Signatory &


osition/Company/Stamp
Note: The amounts transferred to the Form of Tender shall be assumed to be final and shall not be subject to adjustments or correction of
rrors

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1.3. LETTER OF ACCEPTANCE

[Letterhead paper of the Employer]

_____________________________________________
[date]

To:
________________________________________________________________________________
______
[Name of the Contractor]

__________________________________________________________________________
______
[Address of the Contractor]

Dear Sir,

This is to notify you that your Tender dated ____________________________________________

For the execution of

________________________________________________________________

[Name of the Contract and identification number as given in the Tender documents] for the

Contract Price of Kshs. __________________________ [amount in figures] [Kenya

Shillings______________________________ (amount in words)] in accordance with the

Instructions to Tenderers is hereby accepted.

You are hereby instructed to proceed with the execution of the said Works in accordance with the
Contract documents.

Authorized

Signature________________________________________________________________________
____

Name and Title of


Signatory___________________________________________________________

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1.4. FORM OF AGREEMENT

THIS AGREEMENT, made the _____________________________ day of _________________


20 ____________ between_______________________________________________________of
[or whose registered office is situated at] ______________________________________________
(hereinafter called “the Employer”) of the one part AND
_____________________________________________________________of [or whose registered
office is situated at] __________________ (hereinafter called “the Contractor”) of the other part.

WHEREAS THE Employer is desirous that the Contractor executes


________________________________________________________________________________
_______
(Name and identification number of Contract) (hereinafter called “the Works”) located
at______________________________ [Place/location of the Works]and the Employer has
accepted the tender submitted by the Contractor for the execution and completion of such Works
and the remedying of any defects therein for the Contract Price of
Kshs____________________[Amount in figures],Kenya Shillings___________Amount in words].

NOW THIS AGREEMENT WITNESSETH as follows:

1. In this Agreement, words and expressions shall have the same meanings as are respectively
assigned to them in the Conditions of Contract hereinafter referred to.

2. The following documents shall be deemed to form and shall be read and construed as part of
this Agreement i.e.

(i) Letter of Acceptance


(ii) Form of Tender
(iii) SECTION VI - CONDITIONS OF CONTRACT
(iv) SECTION VI(B) - APPENDIX TO SPECIAL CONDITIONS OF CONTRACT
(v) Form of Price Schedule for Goods/Equipment
(vi) SECTION IV - REQUEST FOR PROPOSAL AND DESIGN/BUILD CONTRACT
REQUIREMENTS
(vii) SECTION V(B) - APPENDIX TO REQUEST FOR PROPOSAL AND
DESIGN/BUILD CONTRACT REQUIREMENTS SPECIFICATION FOR A
POTATO PROCESSING PLANT ( 2000KGS PER HOUR OUTPUT CAPACITY)
(viii) The Tenderers Proposal

3. In consideration of the payments to be made by the Employer to the Contractor as


hereinafter mentioned, the Contractor hereby covenants with the Employer to execute and

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complete the Works and remedy any defects therein in conformity in all respects with the
provisions of the Contract.

4. The Employer hereby covenants to pay the Contractor in consideration of the execution and
completion of the Works and the remedying of defects therein, the Contract Price or such
other sum as may become payable under the provisions of the Contract at the times and in
the manner prescribed by the Contract.

IN WITNESS whereof the parties thereto have caused this Agreement to be executed the day and
year first before written.

The common Seal of


_________________________________________________________________

Was hereunto affixed in the presence of ______________________________________________

Signed Sealed, and Delivered by the said ______________________________________________

Binding Signature of Employer


_______________________________________________________

Binding Signature of Contractor


______________________________________________________

In the presence of;

[i]Name_________________________________________________________________________
_______

Address_________________________________________________________________________
______

Signature________________________________________________________________________
______

[ii] Name
_____________________________________________________________________________

Address_________________________________________________________________________
_____

Signature________________________________________________________________________
____

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1.5. FORM OF TENDER SECURITY

WHEREAS ……………………………………….. (Hereinafter called “the Tenderer”) has


submitted his tender dated………………………… for the construction of ………………………
………………………………………………………………………………………… (Name of
Contract)

KNOW ALL PEOPLE by these presents that WE


…………………………………………………………………… having our registered office at
……………………………………………………………………………(hereinafter called “the
Bank”), are bound unto ……………………………………………………………(hereinafter called
“the Employer”) in the sum of Kshs.…………………… ………………………………… for which
payment well and truly to be made to the said Employer, the Bank binds itself, its successors and
assigns by these presents sealed with the Common Seal of the said Bank this ……………. Day of
………20…………
THE CONDITIONS of this obligation are:

1. If after tender opening the tenderer withdraws his tender during the period of tender validity
specified in the instructions to tenderers
Or

2. If the tenderer, having been notified of the acceptance of his tender by the Employer during
the period of tender validity:

(a) fails or refuses to execute the form of Agreement in accordance with the Instructions
to Tenderers, if required; or

(b) fails or refuses to furnish the Performance Security, in accordance with the
Instructions to Tenderers;

We undertake to pay to the Employer up to the above amount upon receipt of his first written
demand, without the Employer having to substantiate his demand, provided that in his demand the
Employer will note that the amount claimed by him is due to him, owing to the occurrence of one or
both of the two conditions, specifying the occurred condition or conditions.

This guarantee will remain in force up to and including thirty (30) days after the period of tender
validity, and any demand in respect thereof should reach the Bank not later than the said date.

_______________________________
________________________________________
[Date [ [signature of the Bank]

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_______________________________
________________________________________
[Witness] [Seal]

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1.6. PERFORMANCE BANK GUARANTEE

To: _______________________________ (Name of Employer) __________________________


(Date)

_____________________________________________________________ (Address of
Employer)

Dear Sir,

WHEREAS
_________________________________________________________________________
(hereinafter called “the Contractor”) has undertaken, in pursuance of Contract No.
___________________________ dated _____________ to execute
_____________________________ (hereinafter called “the Works”);
AND WHEREAS it has been stipulated by you in the said Contract that the Contractor shall furnish
you with a Bank Guarantee by a recognized bank for the sum specified therein as security for
compliance with his obligations in accordance with the Contract;

AND WHEREAS we have agreed to give the Contractor such a Bank Guarantee:

NOW THEREFORE we hereby affirm that we are the Guarantor and responsible to you, on behalf
of the Contractor, up to a total of Kshs. _________________________________________ (amount
of Guarantee in figures) Kenya Shillings_______________________________________ (amount
of Guarantee in words), and we undertake to pay you, upon your first written demand and without
civil or argument, any sum or sums within the limits of Kenya Shillings
___________________________________________ (amount of Guarantee in words) as aforesaid
without your needing to prove or to show grounds or reasons for your demand for 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 thereunder 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 be valid until the date of issue of the Certificate of Completion.

SIGNATURE AND SEAL OF THE GUARANTOR


_________________________________________
Name of Bank
________________________________________________________________________

Address
_______________________________________________________________________________

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Date
________________________________________________________________________________
_
(Amend accordingly if provided by Insurance Company)

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1.7. PERFORMANCE BOND

By this Bond, We________________________________________of (or whose registered office is


situated at]
___________________________________________________________________________
As Principal (hereinafter called “the Contractor”) and _______________________________of [or
whose registered office is situated at]
____________________________________________________
As Surety (hereinafter called “the Surety”), are held and firmly bound unto
________________of [or whose registered office is situated at]
_____________________________
As oblige (hereinafter called “the Employer”) in the amount of Kshs._______________ [amount of
Bond in figures] Kenya Shillings _________________________
[amount of Bond in words], for the payment of which sum well and truly, the Contractor and the
Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and
severally, firmly by these presents.

WHEREAS the Contractor has entered into a Contract with the Employer dated the
____________________ day of _______________ 20 ___________________ for the execution of
________________________________________________________________________________
_______
[Name of Contract] in accordance with the Contract documents, Specifications and amendments
thereto, which to the extent herein provided for, are by reference made part hereof and are
hereinafter referred to as the Contract.

NOW THEREFORE, the Condition of this Obligation is such that, if the Contractor shall promptly
and faithfully perform the said Contract (including any amendments thereto), then this obligation
shall be null and void; otherwise it shall remain in full force and effect. Whenever the Contractor
shall be, and declared by the Employer to be, in default under the Contract, the Employer having
performed the Employer’s obligations thereunder, the Surety may promptly remedy the default, or
shall promptly:

(1) complete the Contract in accordance with its terms and conditions; or

(2) obtain a tender or tenders from qualified tenderers for submission to the Employer for
completing the Contract in accordance with its terms and conditions, and upon
determination by the Employer and the Surety of the lowest responsive tenderer, arrange for
a Contract between such tenderer and Employer and make available as work progresses
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(even though there should be a default or a succession of defaults under the Contract or
Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of
completion less the balance of the Contract Price; but not exceeding, including other costs
and damages for which the Surety may be liable hereunder, the amount set forth in the first
paragraph hereof.

The term “Balance of the Contract Price”, as used in this paragraph, shall mean the total
amount payable by the Employer to the Contractor under the

Contract, less the amount properly paid by the Employer to the Contractor; or

(3) Pay the Employer the amount required by the Employer to complete the Contract in
accordance with its terms and conditions up to a total not exceeding the amount of this
Bond.

The Surety shall not be liable for a greater sum than the specified penalty of this Bond.

Any suit under this Bond must be instituted before the expiration of one year from the date of
issuance of the Certificate of Completion.

No right of action shall accrue on this Bond to or for the use of any person or corporation other than
the Employer named herein or the heirs, executors, administrators, successors and assigns of the
Employer.

In testimony whereof, the Contractor has hereunto set his hand and affixed his seal, and the Surety
has caused these presents to be sealed with his corporate seal duly attested by the signature of his
legal representative, this _____ day of___ 20_____

SIGNED ON _____ SIGNED ON _________________________________

On behalf of ____________________ On behalf of _____________________________________


[Name of Contractor] [Name of Surety]

By _____________________ by ____________________________________________

In the capacity of ___________________In the capacity of ________________________________

In the presence of; Name ____________In the presence of; Name__________________________

Address_____________________________Address______________________________________
__

Signature__________________________
Signature_______________________________________

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Date________________________________Date________________________________________
___

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1.8. BANK GUARANTEE FOR ADVANCE PAYMENT

To: ___________________________ [name of Employer] _____________________________

(Date)

____________________________________________________________ [address of

Employer]

Gentlemen,

Ref: _______________________________________________________________ [name of


Contract]

In accordance with the provisions of the Conditions of Contract of the above-mentioned Contract,
We,_______________________________________________________________[name and
Address of Contractor] (hereinafter called “the Contractor”) shall deposit with
__________________________________[name of Employer] a bank guarantee to guarantee his
proper and faithful performance under the said Contract in an amount of
Kshs.______________________________________________________________[amount of
Guarantee in figurers] Kenya
Shillings______________________________________________________[amount of Guarantee
in words].

We, ____________________________________________________[bank or financial


institution], as instructed by the Contractor, agree unconditionally and irrevocably to guarantee as
primary obligator and not as Surety merely, the payment to
_____________________________________[name of Employer] on his first demand without
whatsoever right of objection on our part and without his first claim to the Contractor, in the
amount not exceeding
Kshs_______________________________________________________________[amount of
Guarantee in figures] Kenya Shillings
______________________________________________________[amount of Guarantee in
words], such amount to be reduced periodically by the amounts recovered by you from the proceeds
of the Contract.

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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 Employer] 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.

This guarantee shall remain valid and in full effect from the date of the advance payment under the
Contract until ___________________________________________________ (name of Employer)
receives full payment of the same amount from the Contract.

Yours faithfully,

Signature and Seal


__________________________________________________________________

Name of the Bank or financial institution _____________________________________________

Address
_______________________________________________________________________________

Date
________________________________________________________________________________
_

Witness: Name:
__________________________________________________________________

Address:
_____________________________________________________________________________

Signature:
____________________________________________________________________________

Date:
________________________________________________________________________________

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1.9. QUALIFICATION INFORMATION
(To complete parts 1, 2 and 3 where/as appropriate

1. Individual Tenderers or Individual Members of Joint Ventures

1.1 Constitution or legal status of tenderer (attach copy or Incorporation Certificate);


Place of registration:
_______________________________________________________

Principal place of Business


___________________________________________________

Power of attorney of signatory of tender


______________________________________
1.2 Total annual volume of construction work performed in the last ten years
YEAR CURRENCY Value

1.1 Work performed as Main Contractor on works of a similar nature and volume over
the last ten years. Also list details of work under way or committed, including
expected completion date – attach contracts, letters of completion & handover
certificates.
Project Name of client Type of work Value Level of Expected cash
Name and contact performed and of Completion outlay to
person year of contract (%) complete the
completion/Ex remaining part
pected year of
completion

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1.4 Qualifications and experience of key personnel proposed for administration and
execution of the Contract. Attach biographical data.

Position Name Years of Years of


experience experience in
(general) proposed position
Project Manager

1.6 Financial reports for the last five years: balance sheets, profit and loss statements,
auditor’s reports, etc. List below and attach copies.

____________________________________________________________________
______
1.7 Evidence of access to financial resources to meet the qualification requirements:
cash in hand, lines of credit, etc. List below and attach copies of supportive
documents.
This has been
deleted______________________________________________________

1.8 Proposed Credit Period (In calendar days). This shall form part of the conditions of
the contract.
____________________________________________________________________
______
1.9 Name, address and telephone, telex and facsimile numbers of banks that may
provide reference if contacted by the Employer.

____________________________________________________________________
______

1.10 Statement of compliance with the requirements of Clause 1.2 of the Instructions to
Tenderers.
This has been deleted
___________________________________________________

1.11 Proposed program (work method and schedule) for the whole of the Works.
____________________________________________________________________
_____

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1.12 Litigation History
Name of Firm or Partner of a joint venture
Firms, including each of the partners of a joint venture, should provide information
on any history of litigation or arbitration resulting from contracts executed in the last
five years or currently under execution. A separate sheet should be used for each
partner of a joint venture

Year Award FOR or Name of client, cause of litigation and Disputed amount
AGAINST matter in dispute (current value,
Firm Kshs.)

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2. Joint Ventures

2.0 The information listed in 1.1 –1.10 above shall be provided for each partner of the joint
venture.

2.1 The information required in 1.1.1 above shall be provided for the joint venture.

2.2 Attach the power of attorney of the signatory (ies) of the tender authorizing signature of the
tender on behalf of the joint venture.

2.3 Attach the Agreement among all partners of the joint venture (and which is legally binding
on all partners), which shows that:

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

b) one of the partners will be nominated as being in charge, authorized to incur


liabilities and receive instructions for and on behalf of any and all partners of the
joint venture; and

c) The execution of the entire Contract, including payment, shall be done exclusively
with the partner in charge.

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1.10. TENDER QUESTIONNAIRE

Please fill in block letters.

1. Full names of tenderer;

…………………………………………………………………………………………………

2. Full address of tenderer to which tender correspondence is to be sent (unless an agent has
been appointed below);

…………………………………………………………………………………………………
……

3. Telephone number (s) of tenderer;

…………………………………………………………………………………………………
……
4. Telex of tenderer;
…………………………………………………………………………………………………
……

5. Name of tenderer’s representative to be contacted on matters of the tender during the tender
period;
…………………………………………………………………………………………………
……

6. Details of tenderer’s nominated agent (if any) to receive tender notices. This is essential if
the tenderer does not have his registered address in Kenya (name, address, telephone, telex);

…………………………………………………………………………………………………
……

___________________________________
Signature of Tenderer

Make copy and deliver to: ____________________________________ (Name of


Employer)

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1.11. FORM OF CONFIDENTIAL BUSINESS QUESTIONNAIRE
You are requested to give the particulars indicated in Part 1 and either Part 2(a), 2(b) or 2(c)
whichever applies to type of business.
You are advised that it is a serious offence to give false information on this form.
Part-General:
Business Name:
Location of Business Premises: ………………………………………………………………….
Plot No: -………………Street/Road:………………….Postal Address: ……………Tel No;-
Nature of Business:-………………………………………………………………………………
Current Trade License No: ……………………………….Expiring Date: …………………
Maximum Value of Business, which you can handle at any one time
Kshs: ……………………………………………………………………………………………..
Name of Bankers:…………………………………………Branch: ………………………….

Part 2(a) – Sole Proprietor


Your Name in full:…………………………………………..Age………………………………..
Nationality:…………………Country of Origin……………Citizenship Details: ……………

Part 2 (b) – Partnership


Give details of partners as follows: -
NO. NAME NATIONALITY CITIZENSHIP DETAILS SHARES
1……………………………./…………………………/ …………………………../……………
2……………………………./…………………………/ …………………………./……………
3……………………………/…………………………./…………………………/………………

Part 2(c) – Registered Company


Private/Public: ………………………………………………………………………………….
State the nominal and issued capital of the Company: -
Nominal Kshs: ………………………………Issued Kshs: ……………………………………
Give details of all directors as follows: -
NO. NAME NATIONALITY CITIZENSHIP DETAILS
SHARES
1…………………………………./…………………………/…………………………../…………
2…………………………………./…………………………/…………………………./…………

Date: -…………………………………………Signature of Applicant…………………………….


• If Kenyan Citizen, indicate under “Citizenship Details” Whether by birth,
• Naturalsation or Registration

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• GPK (L)
Date ----------------------------------------Signature of Applicant --------------------------------------

1.12. DETAILS OF SUB-CONTRACTORS


If the Tenderer wishes to sublet any portions of the works under any heading, he must give below
the details of the sub-contractors he intends to employ for each portion.

Failure to comply with this requirement may invalidate the tender.

FULL NAME AND PORTION OF WORKS SUB-CONTRACTOR’S


ADDRESS OF THE SUB- TO BE SUB- EXPERIENCE IN SIMILAR
CONTRACTOR CONTRACTED AND WORKS
CONTRACT VALUE

Note: Attach relevant evidence.

I certify that the above information is correct.

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……………………… …………………………. …………………………
(Title) (Signature) (Date)

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1.13. LETTER OF NOTIFICATION OF AWARD

Address of Procuring Entity


__________________________________________

To:
________________________________________________________________________________
_______

________________________________________________________________________________
_______

RE: Tender No.


________________________________________________________________________________
______

________________________________________________________________________________
_______

Tender
Name__________________________________________________________________________

This is to notify that the contract/s stated below under the above mentioned tender have been
awarded to you.

1. Please acknowledge receipt of this letter of notification signifying your acceptance.

2. The contract/contracts shall be signed by the parties within 30 days of the date of this letter but
not earlier than 14 days from the date of the letter.

3. You may contact the officer(s) whose particulars appear below on the subject matter of this
letter of notification of award.

(FULL PARTICULARS)
________________________________________________________________________________
_______
SIGNED FOR ACCOUNTING OFFICER

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1.14. CERTIFICATE OF BIDDER’S PRE-BID SITE VISIT

1. This is to certify that I ………………………………………………………………


(Name of Bidder or his representative of the Firm)

Of ……………………………………………………………………....
(Name of Firm bidding)
Visited the site in connection with bid for the……………………….
Contract No…, as described in these Tender Documents.

3. Having previously studied the Tender Documents, I carefully examined the Sites for
the above works.

4. I have made myself familiar with the local conditions likely to influence the works and
cost thereof.

5. I further certify that I am satisfied with the description of the work and that I
understand perfectly the work to be done as specified and implied in the execution of
the contract.

Signed at……………………… on this …………… day of ……………………., 2018

Signature………………………………………….

Name of Company……………………………………………………………………………
1.15. CODE OF ETHICS FORM

PART I - Title - DECLARATION FOR CODE OF ETHICS

This code may be cited as the Code of Ethics for Suppliers in Public Procurement & Disposal

1. Interpretation
In this codes, unless the context otherwise requires-
“The Act” MEANS The Public Procurement and Disposal Act, 2005 or any amendment or
modification thereof.

“Candidate” means a person who has obtained the tender documents from a public entity
pursuant to an invitation notice by a procuring entity.

“Code of Ethics” means a statement encompassing the set of rules based on values and the
standards of conduct to which suppliers are expected to conform.

“Consultant” is a person who provides services of predominantly intellectual, technical or


advisory nature.

“Contractor” means a person who enters into a procurement contract with a procuring entity
to supply goods, works or services, and includes the main contractor.

“Ethics” means values, customs, rules or principles, which govern right conduct.

“Gift” has meaning assigned to it in the Leadership and Integrity Regulations, 2015.

“Integrity” means the quality of being honest and having strong moral and ethical principles.

“Persons” has meaning assigned to it in Article 260 of the Constitution and includes sole
proprietorship.

“Procuring Entity” means a public entity making a procurement to which the Public
Procurement and Disposal Act, 2005 or any amendment or modification thereof applies.

“Public Officer” has the meaning assigned to it in Article 260 of the Constitution.

“Regulations” means regulations made under the Public Procurement and Disposal Act, 2005
or any amendment or modification thereof.

“State Officer” has the meaning assigned to it in Article 260 of the Constitution.

“Supplier” means a candidate, bidder, and tenderer, Contractor, service provider or a


consultant.

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“Tenderer” means a person who submitted a tender pursuant to an invitation by a public
entity

For purposes of this Code, all terms used, unless expressly defined herein, have the meaning
assigned to them in the Act.

2. Application of the Code

(i) This Code of Ethics is applicable to suppliers participating in public procurement or


disposal of public assets.

(ii) The objective of the Code is to set minimum standards of ethical behavior for
Suppliers to ensure compliance with the Act and the Regulations and the adoption of
good business practices.

PART II – REQUIREMENTS/OBLIGATIONS OF THE SUPPLIERS


3. Laws and Regulations
(i) All public procurement & disposal shall be undertaken in accordance with the values
and principles of the Constitution of Kenya, 2010 (Article 10).

(ii) All Suppliers shall comply with the rule of Law.

(iii) Suppliers shall observe other laws, regulations, rules and practices relating to taxation,
labor, health and safety standards as well as environmental protection.

4. Professionalism
(i) Suppliers are required to comply with professional standards of their industry or of any
professional body of which they are members. Where a supplier is a member of a
professional body, the Supplier shall uphold the code of ethics of the respective
profession and be of good standing.

(ii) Suppliers shall maintain the highest standards of integrity and professionalism in their
operations.

(iii) Suppliers in public procurement shall accord mutual respect and courtesy to the public
officer(s) and other suppliers without compromising their independent and distinct
roles.

(iv) Public procurement & disposal activities shall be undertaken with the objective of
meeting the closest public scrutiny.

5. Impartiality

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A supplier shall not engage in acts aimed at encouraging patronage, tribalism, cronyism and
nepotism.

6. Gifts, Favors and Corrupt practices


(i) A supplier shall not offer or give gifts of any kind to public entities and/or the
employees.
(ii) No supplier shall contact, unduly influence or exert pressure on any member of a
committee or any other employee of a procuring entity to take a particular action
which favors or tends to favor them.

(iii) A supplier shall not engage in fraudulent, collusive, or corrupt practices, or


inappropriate influences.

(iv) A supplier shall not act inappropriately by attempting to interfere with the
procurement process

7. Conflict of Interest
(i) A supplier shall not accept contracts which would constitute a conflict of interest with
any prior or current contract. Suppliers shall disclose to all concerned parties those
conflicts of interest that cannot be reasonably avoided.

(ii) A supplier shall not enter into a contract with a procuring entity if the supplier is:
o An employee of the procuring entity or a member of a board or committee of
the procuring entity;

o A State Officer, public Officer or a member of a board or committee of the


Government or any department of the Government or a person appointed to
any position by the President or a Cabinet Secretary;

o A person, including a corporation, who is related to a person described in


paragraph (I) or (ii). A relative has meaning assigned to it in section 33(2) of
the Public Procurement and Asset Disposal Act, 2015 or any amendment or
modification thereof applies;

o Debarred from participating in procurement proceedings.

8. Performance of Duties
8.1. A supplier shall:

(i) Duly sign this code of ethics and include it in a tender, proposal or quotation
submitted.

(ii) Obtain and submit bid documents in the manner prescribed in the tender notice
and tender documents.

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(iii) Supply the right quantity and quality of the contracted item and deliver at the
stipulated time(s) and shall not abandon the work that they have been
contracted to do.

(iv) Perform the obligations of the contracts efficiently and effectively.


8.2. Suppliers shall not participate in procurement proceedings without invitation to tender
and understanding the instructions to tenderers.

8.3. While responding to tenders, quotations or request for proposals, bidders should not
include unfair, discriminatory or unreasonable conditions in their bids.

8.4. Suppliers should


(i) Ensure that their deliverables provide value for money in terms of cost, quality,
quantity and timeliness of the delivered works, goods or services.

(ii) Ensure that competent persons carry out the contractual obligations of the supplier.

(iii) Accept full responsibility for all works, services or supplies provided

8.5. A supplier shall not


(i) Obstruct or hinder an officer of the Authority or any other authorized person from
carrying out a duty or function or exercising a power relating to procurement and
disposal.

(ii) Knowingly or in collusion with others lie to or mislead a person carrying out a duty or
function or exercising a power relating to procurement and disposal.

9. Communication and Accuracy of Information

A supplier shall:

(i) Observe strict communication limitations during the bidding process and as provided
for in the Act.

(ii) Respond promptly and courteously to all proper requests for information,
clarifications, complaints or enquiries from procuring entities, the Authority or any
law enforcement agency.

(iii) Ensure that all information provided to procuring entities is given in writing by
Authorized Officers.

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(iv) Ensure that certified copies of all mandatory certificates are availed.

(v) Ensure that information given while participating in public procurement or disposal is
true, accurate and fair, and not designed to mislead.

10. Confidentiality

Information obtained in the course of performance of a procurement contract in shall


not be disclosed to unauthorized persons and shall not be used for the Supplier’s
advantage or material gain or for furtherance of private interest. The obligation to
preserve the confidential information continues even after the business/contractual
relationship with the Procuring Entity ends.

11. Duty to report impropriety/corruption

A supplier shall reject and report to the PPOA and/or the relevant agency any
procurement practice which might be deemed improper.

PART III - OVERSIGHT BY THE PPOA

12. PPOA shall assist in undertaking continuous training of the suppliers to eliminate
malpractices which might arise due to ignorance of the public procurement system.

13. PPOA will exercise oversight in the enforcement of this Code of Ethics, including taking
remedial measures where the Code of Ethics is breached.

14. PPOA shall revise the code of ethics as appropriate in consultation with the relevant
stakeholders.

PART IV - COMPLIANCE & MONITORING


15. A Procuring Entity may conduct due diligence, on-site evaluations and inspections of
suppliers’ facilities and/or project site, including those of their subcontractors and Joint
Venture partners to review their compliance to this Code during execution of the Contract.

16. PPOA shall, on its own motion or upon receipt of a complaint, inquire into the allegation of
the violation of the Code of Ethics and institute debarment proceedings in line with
Regulation 90 of the Public Procurement and Disposal Regulations, 2006.

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17. PPOA shall establish a complaints management system for reporting and receipt of
complaints on alleged violations of the Code of Ethics.

18. PPOA may collaborate and partner with other agencies, organizations and professional bodies
in enforcement of this Code of Ethics.

19. All Procuring Entities shall submit a report to PPOA, annually or upon request, of any
breaches by suppliers, and any action taken against the breach, in such format as is
provided by PPOA.

PART V - ENFORCEMENT OF THE CODE

20. Any person may lodge a complaint alleging a breach of this code by a supplier to the
Authority or a Procuring entity.

21. Upon receipt of the complaint, the Authority or the Procuring entity shall register and carry
out investigations into the complaint, and may take action against the supplier in
accordance with the Act and any Regulations.

22. A breach of this Code shall be subject to a debarment process as stipulated in the Act which
may attract a debarment for a period not less than five years. The breach may further be
subjected to a Court process that may lead to the imposition of other penalties as stipulated
in the Act and other Laws.

23. A Procuring Entity may disqualify a supplier from further participation in a procurement or
disposal proceeding or terminate a contract if it establishes a breach of this Code.

24. A breach of this Code shall lead to termination of registration of a supplier.

25. A supplier who violate the law or engage in unethical business dealings may be subject to
disciplinary proceedings.

26. Declaration and Signature

26.1. I ……………………………………………………………………………………….
(Supplier) Confirm that I have read and fully understood the contents of the Public
Procurement & Asset Disposal Act 2015 and the Code of Ethics for Suppliers and my
responsibilities under the Code.

26.2. I also certify that I am duly authorized to sign this Code on my own behalf and on behalf
of my organization, and agree to comply with the Code of Ethics.

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Name…………………………………………Sign………………………………………………

Position……………………………………………………………………………………………

Office address……………………………Telephone……………………………………………
E-mail………………………………………………………………………………………………

Name of the Firm…………………………………………………………………………………

(Company Seal/ Rubber Stamp where applicable)

Sworn at……................…………………………………………………………………….....

By the said …………...……………………………………………………………..................

Deponent

This…………………………………day of………………………………………20……….…

Before Me................................... ………………………………………………...............…


Commissioner for Oaths/Magistrate}

1.16. FORM OF MANUFACTURER’S AUTHORIZATION

To [name of the Procuring entity] ………………….

WHEREAS ………………………………………………………… [Name of the


manufacturer] who are established and reputable manufacturers of ………………….. [Name
and/or description of the goods] having factories at ………………………………… [Address
of factory] do hereby authorize ………………………… [Name and address of Agent] to
submit a tender, and subsequently negotiate and sign the Contract with you against tender No.
………………………. [Reference of the Tender] for the above goods manufactured by us.

We hereby extend our full guarantee and warranty as per the General Conditions of Contract
for the goods offered for supply by the above firm against this Invitation for Tenders.

[Signature for and on behalf of manufacturer]

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Note: This letter of authority should be on the letterhead of the Manufacturer and should be
signed by a person competent.

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1.17. PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD
FORM RB 1
REPUBLIC 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….…………………
SIGNED
Board Secretary

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