Agro-Chemical and Food Company Limited

OPEN TENDER

PROVISION OF CASUAL LABOUR SERVICES

ACFC/HR/05/2023/24

Agro Chemical and Food Company Limited

P.O. Box 18 – 40107, Muhoroni
Email: admin@acfc.co.ke
Website: www.acfc.co.ke

SUBMISSION DEADLINE: APRIL 27, 2023 AT 1230HRS

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 Agro-Chemical and Food Company Limited
INVITATION TO TENDER

Tender №.: ACFC/HR/05/2023/24

Tender Name: PROVISION OF CASUAL LABOUR SERVICES

1. Agro Chemical and Food Company Limited (ACFC) invites sealed tenders for the provision of
Casual Labour Services.

2. Tendering will be conducted under open competitive method using a standardized tender
document. Tendering is open to all qualified and interested Tenderers.

3. Qualified and interested tenderers may obtain further information and inspect the Tender
Documents during office hours (i.e., as from 0900 to 1400 hours, Monday to Friday except
during public holidays) at the address given below. More details on the Services are provided
in PART 2 - Services' Requirements, Section V - Description of Services of the Tender
Document.

4. A complete set of tender documents may be purchased or obtained by interested tenders upon
payment of a non-refundable fees of KShs.1,000 in cash or Banker's Cheque and Agro
Chemical and Food Company Limited.

5. Tender documents may also be viewed and downloaded from the ACFC website:
www.acfc.co.ke or the Public Procurement Information Portal (PPIP): www.tenders.go.ke free
of charge. Tenderers who download the tender document must forward their particulars
immediately to tenders@acfc.co.ke to facilitate any further clarification or addendum.

6. All Tenders must be accompanied by a tender Securing declaration in the prescribed format.

7. The Tenderer shall chronologically serialize all pages of the tender documents submitted.

8. Completed tenders must be delivered to the address below on or before April 27, 2023 at
1230hrs. Electronic Tenders will not be permitted.

9. Tenders will be opened immediately after the deadline date and time specified above or any
deadline date and time specified later. Tenders will be publicly opened in the presence of the
Tenderers' designated representatives who choose to attend at the address below.

10. Late tenders will be rejected.

11. The addresses referred to above are:

A. Address for obtaining further information, and purchasing tender document.

Agro Chemical and Food Company Limited

Muhoroni Town, next to Muhoroni Sugar Company Limited
P.O. Box 18 – 40107, Muhoroni
Tel: +254 722-205448/ 734-242871
Email: purchasing@acfc.co.ke

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 B. Address for Submission of Tenders.

The Managing Director

Agro Chemical and Food Company Limited
Muhoroni Town, next to Muhoroni Sugar Company Limited
P.O. Box 18 – 40107, Muhoroni

C. Address for Opening of Tenders.

Agro Chemical and Food Company Limited

ACFC Training Centre at the Factory in Muhoroni

Any canvasing or giving of false information will lead to automatic disqualification.

Amos W. Mwaighonyi
For: AG. MANAGING DIRECTOR
January 23, 2023

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PART I – TENDERING PROCEDURE

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SECTION I - INSTRUCTION TO TENDERERS

A. General

1. Scope of Tender

1.1 This tendering document is for the delivery of Non-Consulting Services, as specified in Section
V, Procuring Entity's Requirements. The name, identification and number of this tender are
specified in the TDS.

2. Throughout this tendering document:

2.1 The terms:

a) The term “in writing” means communicated in written form (e.g., by mail, e-mail, fax,
including if specified in the TDS, distributed or received through the electronic-
procurement system used by the Procuring Entity) with proof of receipt;
b) if the contexts or esquires, “singular” means “plural” and vice versa; and
c) “Day” means calendar day, unless otherwise specified as “Business Day”. A Business
Day is any day that is an official working day of the Procuring Entity. It excludes the
Procuring Entity's official public holidays.

2.2 The successful Tenderer will be expected to complete the performance of the Services by the
Intended Completion Date provided in the TDS.

3. Fraud and Corruption

3.1 The Procuring Entity requires compliance with the provisions of the Public Procurement and
Asset Disposal Act, 2015 (the Act), Section 62 “Declaration not to engage in corruption”. The
tender submitted by a person shall include a declaration that the person shall not engage in any
corrupt or fraudulent practice and a declaration that the person or his or her sub-contractors are
not debarred from participating in public procurement proceedings.

3.2 The Procuring Entity requires compliance with the provisions of the Competition Act 2010,
regarding collusive practices in contracting. Any tenderer found to have engaged in collusive
conduct shall be disqualified and criminal and/or civil sanctions may be imposed. To this effect,
Tenders shall be required to complete and sign the “Certificate of Independent Tender
Determination” annexed to the Form of Tender.

3.3 Unfair Competitive Advantage - Fairness and transparency in the tender process require that
the firms or their Affiliates competing for a specific assignment do not derive a competitive
advantage from having provided consulting services related to this tender. To that end, the
Procuring Entity shall indicate in the TDS and make available to all the firms together with this
tender document all Information that would in that respect gives such firm any unfair
competitive advantage over competing firms.

3.4 Unfair Competitive Advantage-Fairness and transparency in the tender process require that the
Firms or their Affiliates competing for a specific assignment do not derive a competitive
advantage from having provided consulting services related to this tender. The Procuring Entity
shall indicate in the TDS firms (if any) that provided consulting services for the contract being
tendered for. The Procuring Entity shall check whether the owners or controllers of the Tenderer
are same as those that provided consulting services. The Procuring Entity shall, upon request,

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 make available to any tenderer information that would give such firm unfair competitive
advantage over competing firms.

4. Eligible Tenderers

4.1 A Tenderer may be a firm that is a private entity, a state-owned entity or institution subject to
ITT 4.6, or any combination of such entities in the form of a Joint Venture (JV) under an existing
agreement or with the intent to enter into such an agreement supported by a Form of intent. In
the case of a joint venture, all members shall be jointly and severally liable for the execution of
the entire Contract in accordance with the Contract terms. The JV shall nominate a
Representative who shall have the authority to conduct all business for and on behalf of any
and all the members of the JV during the Tendering process and, in the event the JV is awarded
the Contract, during contract execution. Members of a joint venture may not also make an
individual tender, be a sub contract or in a separate tender or be part of another joint venture
for the purposes of the same Tender. The maximum number of JV members shall be specified
in the TDS.

4.2 Public Officers, of the Procuring Entity, their Spouses, Child, Parent, Brothers or Sister. Child,
Parent, Brother or Sister of a Spouse in which they have a substantial or controlling interest
shall not be eligible to tender or be awarded contract. Public Officers are also not allowed to
participate in any procurement proceedings.

4.3 A Tenderer shall not have a conflict of interest. Any Tenderer found to have a conflict of interest
shall be disqualified. A Tenderer may be considered to have a conflict of interest for the purpose
of this Tendering process, if the Tenderer:
a Directly or indirectly controls, is controlled by or is under common control with
another Tenderer; or
b Receives or has received any direct or indirect subsidy from another Tenderer; or
c has the same legal representative as another Tenderer; or
d has a relationship with another Tenderer, directly or through common third parties, that
puts it in a position to influence the Tender of another Tenderer, or influence the
decisions of the Procuring Entity regarding this Tendering process; or
e oranyofitsaffiliatesparticipatedasaconsultantinthepreparationoftheProcuringEntity'sRe
quirements (including Activities Schedules, Performance Specifications and Drawings)
for the Non-Consulting Services that are the subject of the Tender; or
f or any of its affiliates has been hired (or is proposed to be hired) by the Procuring Entity
or Procuring Entity for the Contract implementation; or
g would be providing goods, works, or non-consulting services resulting from or directly
related to consulting services for the preparation or implementation of the project
specified in the TDS ITT 2. 1 that it provided or were provided by any affiliate that
directly or indirectly controls, is controlled by, or is under common control with that
firm; or
h has a close business or family relationship with a professional staff of the Procuring
Entity or of the project implementing agency, who:

i. are directly or in directly involved in the preparation of the tendering document

or specifications of the contract, and/or the Tender evaluation process of such
contract; or

ii. Would be involved in the implementation or supervision of such contract

unless the conflicts teeming from such relationship has been resolved in a
manner acceptable to the Procuring Entity throughout the procurement process
and execution of the Contract.

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4.4 A firm that is a Tenderer (either individually or as a JV member) shall not participate in more
than one tender, except for permitted alternative Tenders. This includes participation as a
subcontractor. Such participation shall result in the disqualification of all Tenders in which the
firm is involved. A firm that is not a Tenderer or a JV member may participate as a sub-
contractor in more than one Tender.

4.5 A Tenderer may have the nationality of any country, subject to the restrictions pursuant to
ITT 4 .9.

4.6 A Tenderer that has been sanctioned by PPRA or are under a temporary suspension or a
debarment imposed by any other entity of the Government of Kenya shall be ineligible to be
pre-qualified for, initially selected for, tender for, propose for, or be awarded a contract during
such period of sanctioning. The list of debarred firms and individuals is available at the PPRA
Website www.ppra.go.ke

4.7 Tenderers that are state-owned enterprises or institutions in Kenya may be eligible to compete
and be awarded a Contract(s) only if they can establish that they: (i) are legally and financially
autonomous; (ii) operate under Commercial law; and (iii) are not under supervision of the
Procuring Entity.

4.8 Firms and individuals may be ineligible if (a) as a matter of law or official regulations, Kenya
prohibits commercial relations with that country, or (b) by an act of compliance with a decision
of the United Nations Security Council take under Chapter VII of the Charter of the United
Nations, Kenya prohibits any import of goods or contracting of works or services from that
country, or any payments to any country, person or entity in that country.

4.9 A Tenderer shall be deemed to have the nationality of a country if the Tenderer is constituted,
incorporated or registered in and operates in conformity with the provisions of the laws of that
country, as evidenced by its articles of incorporation (or equivalent documents of constitution
or association) and its registration documents, as the case may be. This criterion also shall apply
to the determination of the nationality of proposed subcontractors or sub consultants for any
part of the Contract including related Services.

4.10 Foreign tenderers are required to source at least forty (40%) percent of their contract inputs (in
supplies, subcontracts and labor) from national suppliers and contractors. To this end, a foreign
tenderer shall provide in its tender documentary evidence that this requirement is met. Foreign
tenderers not meeting this criterion will be automatically disqualified. Information required to
enable the Procuring Entity determine if this condition is met shall be provided in for this
purpose is be provided in “SECTION III-EVALUATION AND QUALIFICATION CRITERIA,
Item 9”.

4.11 Pursuant to the eligibility requirements of ITT 4.10, a tender is considered a foreign tenderer,
if the tenderer is not registered in Kenya or if the tenderer is registered in Kenya and has less
than 51 percent ownership by Kenyan citizens. JVs are considered as foreign tenderers if the
individual member firms are not registered in Kenya or if are registered in Kenya and have less
than 51 percent ownership by Kenyan citizens. The JV shall not sub contract to foreign firms
more than 10 percent of the contract price, excluding provisional sums.

4.12 The Competition Act of Kenya requires that firms wishing to tender as Joint Venture
undertakings which may prevent, distort or lessen competition in provision of services are
prohibited unless they are exempt in accordance with the provisions of Section 25 of the
Competition Act, 2010. JVs will be required to seek for exemption from the Competition
Authority. Exemption shall not be a condition for tender, but it shall be a condition of contract
award and signature. A JV tenderer shall be given opportunity to seek such exemption as a
condition of award and signature of contract. Application for exemption from the Competition

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 Authority of Kenya may be accessed from the website www.cak.go.ke

4.13 A Tenderer may be considered ineligible if he/she offers goods, works and production processes
with characteristics that have been declared by the relevant national environmental protection
agency or by other competent authority as harmful to human beings and to the environment
shall not be eligible for procurement.

4.14 A Kenyan tenderer shall be eligible to tender if it provides evidence of having fulfilled his/her
tax obligations by producing a valid tax compliance certificate or tax exemption certificate is
sued by the Kenya Revenue Authority.

5 Qualification of the Tenderer

5.1 All Tenderers shall provide in Section IV, Tendering Forms, a preliminary description of the
proposed work method and schedule, including drawings and charts, as necessary.

5.2 In the event that pre-qualification of Tenderers has been undertaken as stated in ITT 18.3, the
provisions on qualifications of the Section III, Evaluation and Qualification Criteria shall not
apply.

B. Contents of Tendering Document

6 Sections of Tendering Document

6.1 The tendering document consists of Parts 1, 2, and 3, which include all the sections indicated
below and should be read in conjunction with any Addenda issued in accordance with ITT 10.

PART 1: Tendering Procedures

i) Section I - Instructions to Tenderers (ITT)

ii) Section II - Tender Data Sheet (TDS)
iii) Section III - Evaluation and Qualification Criteria
iv) Section IV - Tendering Forms

PART 2: Procuring Entity's Requirements

v) Section V-Procuring Entity's Requirements

PART 3: Contract

vi) Section VI - General Conditions of Contract (GCC)

vii) Section VII - Special Conditions of Contract (SCC)
viii) Section VIII - Contract Forms

6.2 The Invitation to Tender (ITT) notice or the notice to pre-qualify Tenderers, as the case may
be, issued by the Procuring Entity is not part of this tendering document.

6.3 Unless obtained directly from the Procuring Entity, the Procuring Entity is not responsible for
the completeness of the document, responses to requests for clarification, the Minutes of the
pre-Tender meeting (if any), or Addenda to the tendering document in accordance with ITT 10.
In case of any contradiction, documents obtained directly from the Procuring Entity shall
prevail.

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6.4 The Tenderer is expected to examine all instructions, forms, terms, and specifications in the
tendering document and to furnish with its Tender all information or documentation as is
required by the tendering document.

7. Site Visit

7.1 The Tenderer, at the Tenderer's own responsibility and risk, is encouraged to visit and examine
and inspect the Site of the Required Services and its surroundings and obtain all information
that may be necessary for preparing the Tender and entering in to a contract for the Services.
The costs of visiting the Site shall beat the Tenderer's own expense.

8 Pre-Tender Meeting

8.1 The Procuring Entity shall specify in the TDS if a pre-tender conference will be held, when and
where. The Procuring Entity shall also specify in the TDS if a pre-arranged pretender site visit
will be held and when. The Tenderer's designated representative is invited to attend a pre-
arranged pretender visit of the site of the works. The purpose of the meeting will be to clarify
issues and to answer questions on any matter that may be raised at that stage.

8.2 The Tenderer is requested to submit any questions in writing, to reach the Procuring Entity not
later than the period specified in the TDS before the meeting.

8.3 Minutes of the pre-Tender meeting and the pre-arranged pre tender visit of the site of the
service, if applicable, including the text of the questions asked by Tenderers and the responses
given, together with any responses prepared after the meeting, will be transmitted promptly to
all Tenderers who have acquired the Tender Documents in accordance with ITT6.3. Minutes
shall not identify the source of the questions asked.

8.4 The Procuring Entity shall also promptly publish anonymized (no names) Minutes of the pre-
Tender meeting and the pre-arranged pretender visit of the site of the service at the web page
identified in the TDS. Any modification to the Tender Documents that may become necessary
as a result of the pre-Tender meeting shall be made by the Procuring Entity exclusively through
the issue of an Addendum pursuant to ITT10 and not through the minutes of the pre-Tender
meeting. Nonattendance at the pre-Tender meeting will not be a cause for disqualification of a
Tenderer.

9 Clarification of Tender Documents

9.1 A Tenderer requiring any clarification of the Tender Document shall contact the Procuring
Entity in writing at the Procuring Entity's address specified in the TDS or raise its enquiries
during the pre-Tender meeting and the pre- arranged pretender visit of the site of the Service if
provided for in accordance with ITT 8.4. The Procuring Entity will respond in writing to any
request for clarification, provided that such request is received no later than the period specified
in the TDS prior to the deadline for submission of tenders. The Procuring Entity shall forward
copies of its response to all tenderers who have acquired the Tender Documents in accordance
with ITT 6.3, including a description of the inquiry but without identifying its source. If so
specified in the TDS, the Procuring Entity shall also promptly publish its response at the
webpage identified in the TDS. Should the clarification result in changes to the essential
elements of the Tender Documents, the Procuring Entity shall amend the Tender Documents
appropriately following the procedure under ITT 8.4.

10 Amendment of Tender Documents

10.1 At any time prior to the deadline for submission of Tenders, the Procuring Entity may amend
the Tendering document by issuing addenda.

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10.2 Any addendum issued shall be part of the tendering document and shall be communicated in
writing to all who have obtained the tendering document from the Procuring Entity in
accordance with ITT 6.3. The Procuring Entity shall also promptly publish the addendum on
the Procuring Entity's web page in accordance with ITT 8.4.

10.3 To give prospective Tenderers reasonable time in which to take an addendum into account in
preparing their Tenders, the Procuring Entity shall extend, as necessary, the deadline for
submission of Tenders, in accordance with ITT 24.2 below.

C. Preparation of Tenders

11 Cost of Tendering

11.1 The Tenderer shall bear all costs associated with the preparation and submission of its Tender,
and the Procuring Entity shall not be responsible or liable for those costs, regardless of the
conduct or outcome of the Tendering process.

12 Language of Tender

12.1 The Tender as well as all correspondence and documents relating to the Tender exchanged by
the Tenderer and the Procuring Entity shall be written in the English language. Supporting
documents and printed literature that are part of the Tender may be in another language provided
they are accompanied by an accurate translation of the relevant passages into the English
language, in which case, for purposes of interpretation of the Tender, such translation shall
govern.

13 Documents Comprising the Tender

13.1 The Tender shall comprise the following:

a Form of Tender prepared in accordance with ITT 14;

b Schedules: priced Activity Schedule completed in accordance with ITT 14 and ITT
16;
c Tender Security or Tender-Securing Declaration in accordance with ITT 21.1;
d Alternative Tender: if permissible in accordance with ITT 15;
e Authorization: written confirmation authorizing the signatory of the Tender to commit
the Tenderer, in accordance with ITT 22.3;
f Qualifications: documentary evidence in accordance with ITT 19 establishing the
Tenderer's qualifications to perform the Contract if its Tender is accepted;
g Tenderer's Eligibility: documentary evidence in accordance with ITT 19 establishing
the Tenderer's eligibility to Tender;

h Conformity: documentary evidence in accordance with ITT 18, that the Services
conform to the tendering document; and

i Any other document required in the TDS.

j The Tenderer shall chronologically serialize pages of all tender documents submitted.

13.2 In addition to the requirements under ITT 13.1, Tenders submitted by a JV shall include a copy
of the Joint Venture Agreement entered into by all members. Alternatively, a Form of intent to
execute a Joint Venture Agreement in the event of a successful Tender shall be signed by all
members and submitted with the Tender, together with a copy of the proposed Agreement.

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13.3 The Tenderer shall furnish in the Form of Tender information on commissions and gratuities,
if any, paid or to be paid to agents or any other party relating to this Tender.

14 Form of Tender and Activity Schedule

14.1 The Form of Tender and priced Activity Schedule shall be prepared using the relevant forms
furnished in Section IV, Tendering Forms. The forms must be completed without any alterations
to the text, and no substitutes shall be accepted except as provided under ITT 22.3. All blank
spaces shall be filled in with the information requested.

14.2 The Tenderer shall furnish in the Form of Tender information on commissions and gratuities,
if any, paid or to be paid to agents or any other party relating to this Tender.

15 Alternative Tenders

15.1 Unless otherwise indicated in the TDS, alternative Tenders shall not be considered. If
alternatives are permitted, only the technical alternatives, if any, of the Best Evaluated Tender
shall be considered by the Procuring Entity.

15.2 When alternative times for completion are explicitly invited, a statement to that effect will be
included in the TDS and the method of evaluating different time schedules will be described
in Section III, Evaluation and Qualification Criteria.

15.3 When specified in the TDS, Tenderers a reemitted to submit alternative technical solutions for
specified parts of the Services, and such parts will be identified in the TDS, as will the method
for their evaluating, and described in Section VII, Procuring Entity's Requirements.

16. Tender Prices and Discounts

16.1 The prices and discounts (including any price reduction) quoted by the Tenderer in the Form of
Tender and in the Activity Schedule (s) shall conform to the requirements specified below.

16.2 All lots (contracts) and items must be listed and priced separately in the Activity Schedule(s).

16.3 The Contract shall be for the Services, as described in Appendix A to the Contract and in the
Specifications (or Terms of Reference), based on the priced Activity Schedule, sub mitted by
the Tenderer.

16.4 The Tenderer shall quote any discounts and indicate the methodology for their application in
the Form of Tender in accordance with ITT 16.1.

16.5 The Tenderer shall fill in rates and prices for all items of the Services described in the in
Specifications (or Terms of Reference), and listed in the Activity Schedule in Section VII,
Procuring Entity's Requirements. Items for 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
other rates and prices in the Activity Schedule.

16.6 All duties, taxes, and other levies payable by the Service Provider under the Contract, or for
any other cause, as of the date 30 days prior to the deadline for submission of Tenders, shall be
included in the total Tender price submitted by the Tenderer.

16.7 If provided for in the TDS, the rates and prices quoted by the Tenderer shall be subject to
adjustment during the performance of the Contract in accordance with and the provisions of
Clause 6.6 of the General Conditions of Contract and / or Special Conditions of Contract. The
Tenderer shall submit with the Tender all the information required under the Special Conditions
of Contract and of the General Conditions of Contract.

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16.8 For the purpose of determining the remuneration due for additional Services, a breakdown of
the lump-sum price shall be provided by the Tenderer in the form of Appendices D and E to the
Contract.

17 Currencies of Tender and Payment

17.1 The currency of the Tender and the currency of payments shall be Kenya Shillings.

18 Documents Establishing Conformity of Services

18.1 To establish the conformity of the Non-Consulting Services to the tendering document, the
Tenderer shall furnish as part of its Tender the documentary evidence that Services provided
conform to the technical specifications and standards specified in Section VII, Procuring
Entity's Requirements.

18.2 Standards for provision of the Non-Consulting Services are intended to be descriptive only and
not restrictive. The Tenderer may offer other standards of quality provided that it demonstrates,
to the Procuring Entity's satisfaction, that the substitutions ensure substantial equivalence or are
superior to those specified in the Section VII, Procuring Entity's Requirements.

18.3 Tender to provide, as part of the data for qualification, such information, including details of
ownership, as shall be required to determine whether, according to the classification established
by the Procuring Entity, a Service provider or group of service providers. qualifies for a margin
of preference. Further the information will enable the Procuring Entity identify any actual or
potential conflict of interest in relation to the procurement and/or contract management
processes, or a possibility of collusion between tenderers, and thereby help to prevent any
corrupt influence in relation to the procurement processor contract management.
18.4 The purpose of the information described in ITT 18.3 above, overrides any claims to
confidentiality which a tenderer may have. There can be no circumstances in which it would be
justified for a tenderer to keep information relating to its ownership and control confidential
where it is tendering to undertake public sector work and receive public sector funds. Thus,
confidentiality will not be accepted by the Procuring Entity as a justification for a Tenderer's
failure to disclose, or failure to provide required information on its ownership and control.

18.4 The Tenderer shall provide further documentary proof, information or authorizations that the
Procuring Entity may request in relation to ownership and control which information on any
changes to the information which was provided by the tenderer under ITT18.3. The obligations
to require this information shall continue for the duration of the procurement process and
contract performance and after completion of the contract, if any change to the information
previously provided may reveal a conflict of interest in relation to the award or management of
the contract.

18.6 All information provided by the tenderer pursuant to these requirements must be complete,
current and accurate as at the date of provision to the Procuring Entity. In submitting the
information required pursuant to these requirements, the Tenderer shall warrant that the
information submitted is complete, current and accurate as at the date of submission to the
Procuring Entity.

18.7 If a tenderer fails to submit the information required by these requirements, its tenderer will be
rejected. Similarly, if the Procuring Entity is unable, after taking reasonable steps, to verify to
a reasonable degree the information submitted by a tenderer pursuant to these requirements,
then the tender will be rejected.

18.8 If information submitted by a tenderer pursuant to these requirements, or obtained by the

Procuring Entity (whether through its own enquiries, through notification by the public or
otherwise), shows any conflict of interest which could materially and improperly benefit the

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 tenderer in relation to the procurement or contract management process, then:
i) If the procurement process is still on going, the tenderer will be disqualified from the
procurement process,
ii) if the contract has been awarded to that tenderer, the contract award will be set aside,
pending the outcome of (iii),
iii) The tenderer will be referred to the relevant law enforcement authorities for
investigation of whether the tenderer or any other persons have committed any criminal
offence.

18.9 If a tenderer submits information pursuant to these requirements that is in complete, inaccurate
or out-of-date, or attempts to obstruct the verification process, then the consequences ITT 18.9
will ensue unless the tenderer can show to the reasonable satisfaction of the Procuring Entity
that any such act was not material, or was due to genuine err or which was not attributable to
the intentional act, negligence or recklessness of the tenderer.

19 Documents Establishing the Eligibility and Qualifications of the Tenderer

19.1 To establish Tenderer's their eligibility in accordance with ITT4, Tenderers shall complete the
Form of Tender, included in Section IV, Tendering Forms.

19.2 The documentary evidence of the Tenderer's qualification stopper form the Contract if its
Tender is accepted shall establish to the Procuring Entity's satisfaction that the Tenderer meets
each of the qualification criterion specified in Section III, Evaluation and Qualification Criteria.

19.3 All Tenderers shall provide in Section IV, Tendering Forms, a preliminary description of the
proposed methodology, work plan and schedule.

19.4 In the event that pre-qualification of Tenderers has been undertaken, only Tenders from
prequalified Tenderers shall be considered for award of Contract. These qualified Tenderers
should submit with their Tenders any information updating their original pre-qualification
applications or, alternatively, confirm in their Tenders that the originally submitted pre-
qualification information remains essentially correct as of the date of Tender submission.

19.5 If pre-qualification has not taken place before Tendering, the qualification criteria for the
Tenderers are specified- in Section III, Evaluation and Qualification Criteria.

20 Period of Validity of Tenders

20.1 Tenders shall remain valid for the Tender Validity period specified in the TDS. The Tender
Validity period starts from the date fixed for the Tender submission deadline date (as prescribed
by the Procuring Entity in accordance with ITT 24.1). A Tender valid for a shorter period shall
be rejected by the Procuring Entity as non-responsive.

20.2 In exceptional circumstances, prior to the expiration of the Tender validity period, the Procuring
Entity may request Tenderers to extend the period of validity of their Tenders. The request and
the responses shall be made in writing. If a Tender Security is requested in accordance with
ITT20, it shall also be extended for a corresponding period. A Tenderer may refuse the request
without forfeiting its Tender Security. A Tenderer granting the request shall not be required or
permitted to modify its Tender.

21 Tender Security

21.1 The Tenderer shall furnish as part of its Tender, either a Tender-Securing Declaration or a
Tender security, as specified in the TDS, in original form and, in the case of a Tender Security,
in the amount and currency specified in the TDS.

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21.2 A Tender Securing Declaration shall use the form included in Section IV, Tendering Forms.

21.3 If a Tender Security is specified pursuant to ITT 21.1, from a reputable source, and an eligible
country and shall be in any of the following forms at the Tenderer's option:
i) cash;
ii) a bank guarantee;
iii) a guarantee by an insurance company registered and licensed by the Insurance
Regulatory Authority listed by the Authority; or
iv) a guarantee issued by a financial institution approved and licensed by the Central Bank
of Kenya,

21.4 If a Tender Security is specified pursuant to ITT 20.1, any Tender not accompanied by a
substantially responsive Tender Security shall be rejected by the Procuring Entity as non-
responsive.

21.5 If a Tender Security is specified pursuant to ITT 21.1, the Tender Security of unsuccessful
Tenderers shall be returned as promptly as possible upon the successful Tenderer's signing the
contract and furnishing the Performance Security pursuant to ITT 46. The Procuring Entity
shall also promptly return the tender security to the tenderers where the procurement
proceedings are terminated, all tenders were determined non-responsive or a bidder declines to
extend tender validity period.

21.6 The Tender Security of the successful Tenderer shall be returned as promptly as possible once
the successful Tenderer has signed the Contract and furnished the required Performance
Security.

21.7 The Tender Security may be forfeited or the Tender-Securing Declaration executed:
a. If a Tenderer withdraw sits Tender during the period of Tender validity specified by the
Tenderer in the Form of Tender, or any extension there to provide by the Tenderer; or
b. if the successful Tenderer fails to:
c. sign the Contract in accordance with ITT 46; or
d. Furnish a performance security in accordance with ITT 47.

21.8 Where tender securing declaration is executed, the Procuring Entity shall recommend to the
PPRA that PPRA debars the Tenderer from participating in public procurement as provided in
the law.

21.9 The Tender Security or Tender-Securing Declaration of a JV must be in the name of the JV that
submits the Tender. If the JV has not been legally constituted into a legally enforceable JV at
the time of Tendering, the Tender security or Tender-Securing Declaration shall be in the names
of all future members as named in the Form of intent referred to in ITT 4.1 and ITT 13.2.

21.10 A tenderer shall not issue a tender security to guarantee itself.

22 Format and Signing of Tender

22.1 The Tenderer shall prepare one original of the documents comprising the Tender as described
in ITT 13, bound with the volume containing the Form of Tender, and clearly marked “Original.
“In addition, the Tenderer shall submit copies of the Tender, in the number specified in the
TDS, and clearly marked as “Copies. “In the event of discrepancy between them, the original
shall prevail.

22.2 Tenderers shall mark as “CONFIDENTIAL” information in their Tenders which is confidential

14
 to their business. This may include proprietary information, trade secrets, or commercial or
financially sensitive information.

22.3 The original and all copies of the Tender 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. This
authorization shall consist of a written confirmation as specified in the TDS and shall be
attached to the Tender. The name and position held by each person signing the authorization
must be typed or printed below the signature. All pages of the Tender where entries or
amendments have been made shall be signed or initialed by the person signing the Tender.

22.4 In case the Tenderer is a JV, the Tender shall be signed by an authorized representative of the
JV on behalf of the JV, and so as to be legally binding on all the members as evidenced by a
power of attorney signed by their legally authorized representatives.

22.5 Any inter-lineation, erasures, or overwriting shall be valid only if they are signed or initialed
by the person signing the Tender.

D. Submission and Opening of Tenders

23 Sealing and Marking of Tenders

23.1 Depending on the sizes or quantities or weight of the tender documents, a tenderer may use an
envelope, package or container. The Tenderer shall deliver the Tender in a single sealed
envelope, or in a single sealed package, or in a single sealed container bearing the name and
Reference number of the Tender, addressed to the Procuring Entity and a warning not to open
before the time and date for Tender opening date. Within the single envelope, package or
container, the Tenderer shall place the following separate, sealed envelopes:
a. in an envelope or package or container marked “ORIGINAL”, all documents
comprising the Tender, as described in ITT13; and
b. in an envelope or package or container marked “COPIES”, all required copies of the
Tender; and
c. if alternative Tenders are permitted in accordance with ITT15, and if relevant:
i. in an envelope or package or container marked “ORIGINAL–ALTERNATIVE
TENDER”, the alternative Tender; and
ii. in the envelope or package or container marked “COPIES- ALTERNATIVE
TENDER”, all required copies of the alternative Tender.

The inner envelopes or packages or containers shall:

a) Bear the name and address of the Procuring Entity.
b) Bear the name and address of the Tenderer; and
c) Bear the name and Reference number of the Tender.

23.2 If an envelope or package or container is not sealed and marked as required, the Procuring
Entity will assume no responsibility for the misplacement or premature opening of the Tender.
Tenders misplaced or opened prematurely will not be accepted.

24 Deadline for Submission of Tenders

24.1 Tenders must be received by the Procuring Entity at the address and no later than the date and
time specified in the TDS. When so specified in the TDS, Tenderers shall have the option of
submitting their Tenders electronically. Tenderers submitting Tenders electronically shall
follow the electronic Tender submission procedures specified in the TDS.

24.2 The Procuring Entity may, at its discretion, extend the deadline for the submission of Tenders
by amending the tendering document in accordance with ITT9, in which case all rights and

15
 obligations of the Procuring Entity and Tenderers previously subject to the deadline shall
thereafter be subject to the deadline as extended.

25 Late Tenders

25.1 The Procuring Entity shall not consider any Tender that arrives after the dead line for
submission of Tenders, in accordance with ITT 24. Any Tender received by the Procuring Entity
after the deadline for submission of Tenders shall be declared late, rejected, and returned un
opened to the Tenderer.

26 Withdrawal, Substitution and Modification of Tenders

26.1 A Tenderer may withdraw, substitute, or modify its Tender after it has been submitted by
sending a written notice, duly signed by a n authorized representative, and shall include a copy
of the authorization (the power of attorney) in accordance with ITT 21.3, (except that
withdrawal notices do not require copies). The corresponding substitution or modification of
the Tender must accompany the respective written notice. All notices must be:
a) Prepared and submitted in accordance with ITT 21 and ITT 22 (except that withdrawal
notices do not require copies), and in addition, the respective envelopes shall be clearly
marked “WITHDRAWAL,” “SUBSTITUTION,” or “MODIFICATION;” and
b) Received by the Procuring Entity prior to the deadline prescribed for submission of
Tenders, in accordance with ITT 23.

26.2 Tenders requested to be withdrawn in accordance with ITT 25.1 shall be returned unopened to
the Tenderers.

26.3 No Tender may be withdrawn, substituted, or modified in the interval between the deadline for
submission of Tenders and the expiration of the period of Tender validity specified by the
Tenderer on the Form of Tender or any extension thereof.

27 Tender Opening

27.1 Except as in the cases specified in ITT 23 and ITT 25.2, the Procuring Entity shall, at the Tender
opening, publicly open and read out all Tenders received by the deadline at the date, time and
place specified in the TDS in the presence of Tenderers' designated representatives and anyone
who choose to attend. Any specific electronic Tender opening procedures required if electronic
tendering is permitted in accordance with ITT 23.1 shall be as specified in the TDS.

27.2 First, envelopes marked “WITHDRAWAL” shall be opened and read out and the envelope with
the corresponding Tender shall not be opened, but returned to the Tenderer. If the withdrawal
envelope does not contain a copy of the “power of attorney” confirming the signature as a
person duly authorized to sign on behalf of the Tenderer, the corresponding Tender will be
opened. No Tender withdrawal shall be permitted unless the corresponding withdrawal notice
contains a valid authorization to request the withdrawal and is read out at Tender opening.

27.3 Next, envelopes marked “SUBSTITUTION” shall be opened and read out and exchanged with
the corresponding Tender being substituted, and the substituted Tender shall not be opened, but
returned to the Tenderer. No Tender substitution shall be permitted unless the corresponding
substitution notice contains a valid authorization to request the substitution and is read out at
Tender opening.

27.4 Next, envelopes marked “MODIFICATION” shall be opened and read out with the
corresponding Tender. No Tender modification shall be permitted unless the corresponding
modification notice contains a valid authorization to request the modification and is read out at
Tender opening.

27.5 Next, all remaining envelopes shall be opened one at a time, reading out: the name of the

16
 Tenderer and whether there is a modification; the total Tender Prices, per lot (contract) if
applicable, including any discounts and alternative Tenders; the presence or absence of a
Tender Security or Tender-Securing Declaration, if required; and any other details as the
Procuring Entity may consider appropriate.

27.6 Only Tenders, alternative Tenders and discounts that are opened and read out at Tender opening
shall be considered further. The Form of Tender and the priced Activity Schedule are to be
initialed by representatives of the Procuring Entity attending Tender opening in the manner
specified in the TDS.

27.7 The Procuring Entity shall neither discuss the merits of any Tender nor reject any Tender (except
for late Tenders, in accordance with ITT25.1).

27.8 The Procuring Entity shall prepare are cord of the Tender opening that shall include, as a
minimum:
a) The name of the Tenderer and whether there is a withdrawal, substitution, or
modification;
b) The Tender Price, per lot (contract) if applicable, including any discounts; and
c) any alternative Tenders;
d) The presence or absence of a Tender Security or Tender-Securing Declaration, if one
was required.
e) Number of pages of each tender document submitted

27.9 The Tenderers' representatives who a rep resent shall be requested to sign the record. The
omission of a Tenderer's signature on the record shall not invalidate the contents and effect of
the record. A copy of the tender opening register shall be distributed to Tenderer upon request.

E. Evaluation and Comparison of Tenders

28 Confidentiality

28.1 Information relating to the evaluation of Tenders and recommendation of contract award, shall
not be disclosed to Tenderers or any other persons not officially concerned with the Tendering
process until information on the Intention to Award the Contract is transmitted to all Tenderers
in accordance with ITT 42.

28.2 Any effort by a Tenderer to influence the Procuring Entity in the evaluation or contract award
decisions may result in the rejection of its Tender.

28.3 Notwithstanding ITT 28.2, from the time of Tender opening to the time of Contract Award, if
any Tenderer wishes to contact the Procuring Entity on any matter related to the Tendering
process, it should do so in writing.

29 Clarification of Tenders

29.1 To assist in the examination, evaluation, and comparison of Tenders, and qualification of the
Tenderers, the Procuring Entity may, at the Procuring Entity's discretion, ask any tenderer for
clarification of its Tender including break downs of the prices in the Activity Schedule, and
other information that the Procuring Entity may require. Any clarification submitted by a
Tenderer in respect to its Tender and that is not in response to a request by the Procuring Entity
shall not be considered. The Procuring Entity's request for clarification and the response shall
be in writing. No change, including any voluntary increase or decrease, in the prices or
substance of the Tender shall be sought, offered, or permitted, except to confirm the correction
of arithmetic errors discovered by the Procuring Entity in the evaluation of the Tenders, in

17
 accordance with ITT32.

29.2 If a Tenderer does not provide clarifications of its Tender by the date and time set in the
Procuring Entity's request for clarification, its Tender may be rejected.

30 Deviations, Reservations, and Omissions

30.1 During the evaluation of Tenders, the following definitions apply:

a) “Deviation” is a departure from the requirements specified in the tendering document;
b) “Reservation” is the setting of limiting conditions or withholding from complete
acceptance of the requirements specified in the tendering document; and
c) “Omission” is the failure to submit part or all of the information or documentation
required in the tendering document.

31 Determination of Responsiveness

31.1 The Procuring Entity's determination of a Tender's responsiveness is to be based on the contents
of the Tender itself, as defined in ITT 12.

31.2 A substantially responsive Tender is one that meets the requirements of the tendering document
without material deviation, reservation, or omission. A material deviation, reservation, or
omission is one that:
a) If accepted, would:
i. affect in any substantial way the scope, quality, or performance of the Non-
Consulting Services specified in the Contract; or
ii. limit in any substantial way, inconsistent with the tendering document, the
Procuring Entity's rights or the Tenderer's obligations under the Contract; or
b) if rectified, would unfairly affect the competitive position of other Tenderers presenting
substantially responsive Tenders.

31.3 The Procuring Entity shall examine the technical aspects of the Tender submitted in
accordance with ITT 18and ITT 19, in particular, to confirm that all requirements of Section
VII, Procuring Entity's Requirements have been met without any material deviation or
reservation, or omission.

31.4 If a Tender is not substantially responsive to the requirements of tendering document, it shall
be rejected by the Procuring Entity and may not subsequently be made responsive by
correction of the material deviation, reservation, or omission.

31.5 Provided that a Tender is substantially responsive, the Procuring Entity may waive any non-
conformity in the Tender.

31.6 Provided that a Tender is substantially responsive, the Procuring Entity may request that the
Tenderer submit the necessary information or documentation, within a reasonable period of
time, to rectify nonmaterial non- conformities or omissions in the Tender related to
documentation requirements. Requesting information or documentation on such non-
conformities shall not be related to any aspect of the price of the Tender. Failure of the Tenderer
to comply with the request may result in the rejection of its Tender.

31.7 Provided that a Tender is substantially responsive, the Procuring Entity shall rectify
quantifiable nonmaterial non-conformities related to the Tender Price. To this effect, the Tender
Price shall be adjusted, for comparison purposes only, to reflect the price of a missing or non-
conforming item or component in the manner specified in the TDS.

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32 Arithmetical Errors

32.1 The tender sum as submitted and read out during the tender opening shall be
absolute and final and shall not be the subject of correction, adjustment or
amendment in any way by any person or entity.

32.2 Provided that the Tender is substantially responsive, the Procuring Entity shall
handle errors on the following basis:
a) Any error detected if considered a major deviation that affects the
substance of the tender, shall lead to disqualification of the tender as
non-responsive.
b) Any errors in the submitted tender arising from a miscalculation of unit
price, quantity, subtotal and total bid price shall be considered as a major
deviation that affects the substance of the tender and shall lead to
disqualification of the tender as non-responsive .and
c) If there is a discrepancy between words and figures, the amount in words shall
prevail

32.3 Tenderers shall be notified of any error detected in their bid during the notification of award.
33 Conversion to Single Currency

33.1 For evaluation and comparison purposes, the currency(ies) of the Tender shall be converted into
a single currency as specified in the TDS.

34 Margin of Preference and Reservations

34.1 Margin of preference on local service providers may be allowed if it is deemed that the services
require participation of foreign tenderers. If so allowed, it will be indicated in the TDS.

34.2 Where it is intended to reserve the contract to specific groups under Small and Medium
Enterprises, or enterprise of women, youth and /or persons living with disability, who are
appropriately registered as such by the authority to be specified in the TDS, a procuring entity
shall ensure that the invitation to tender specifically indicates that only businesses/firms
belonging to the specified group are eligible to tender as specified in the TDS. Otherwise, if not
so stated, the invitation will be open to all tenderers.

35 Evaluation of Tenders

35.1 The Procuring Entity shall use the criteria and methodologies listed in this ITT and Section III,
Evaluation and Qualification Criteria. No other evaluation criteria or methodologies shall be
permitted. By applying the criteria and methodologies, the Procuring Entity shall determine the
Best Evaluated Tender. This is the Tender of the Tenderer that meets the qualification criteria
and whose Tender has been determined to be:
a) Substantially responsive to the tendering document; and
b) The lowest evaluated cost.

35.2 In evaluating the Tenders, the Procuring Entity will determine for each Tender the evaluated
Tender cost by adjusting the Tender price as follows:
a) Price adjustment due to discounts offered in accordance with ITT 16.4;
b) price adjustment due to quantifiable non material non-conformities in accordance with
ITT 31.3;
c) converting the amount resulting from applying (a) and (b) above, if relevant, to a single
currency in accordance withITT33; and

19
 d) any additional evaluation factors specified in the TDS and Section III, Evaluation and
Qualification Criteria.

35.3 The estimated effect of the price adjustment provisions of the Conditions of Contract, applied
over the period of execution of the Contract, shall not be considered in Tender evaluation.

35.4 In the case of multiple contracts or lots, Tenderers are allowed to tender for one or more lots
and the methodology to determine the lowest evaluated cost of the lot (contract) and for
combinations, including any discounts offered in the Form of Tender, is specified in Section III,
Evaluation and Qualification Criteria. For one or more lots (contracts). Each lot or contract will
be evaluated in accordance with ITT

35.5. The methodology to determine the lowest evaluated tenderer or tenderers based one lot
(contract) or based on a combination of lots (contracts), will be specified in Section III,
Evaluation and Qualification Criteria. In the case of multiple lots or contracts, tenderer will be
will be required to prepare the Eligibility and Qualification Criteria Form for each Lot.

36 Comparison of Tenders

36.1 The Procuring Entity shall compare the evaluated costs of all substantially responsive Tenders
established in accordance with ITT 35.2 to determine the Tender that has the lowest evaluated
cost.

37 Abnormally Low Tenders and Abnormally High Tenders

Abnormally Low Tenders

37.1 An Abnormally Low Tender is one where the Tender price, in combination with other elements
of the Tender, appears so low that it raises material concerns as to the capability of the Tenderer
in regards to the Tenderer's ability to perform the Contract for the offered Tender Price.

37.2 In the event of identification of a potentially Abnormally Low Tender, the Procuring Entity shall
seek written clarifications from the Tenderer, including detailed price analyses of its Tender
price in relation to the subject matter of the contract, scope, proposed methodology, schedule,
allocation of risks and responsibilities and any other requirements of the Tender document.

37.3 After evaluation of the price analyses, in the event that the Procuring Entity determines that the
Tenderer has failed to demonstrate its capability to perform the Contract for the offered Tender
Price, the Procuring Entity shall reject the Tender.

Abnormally High Tenders

37.4 An abnormally high price is one where the tender price, in combination with other constituent
elements of the Tender, appears unreasonably too high to the extent that the Procuring Entity is
concerned that it (the Procuring Entity) may not be getting value for money or it may be paying
too high a price for the contract compared with market prices or that genuine competition
between Tenderers is compromised.

37.5 In case of an abnormally high price, the Procuring Entity shall make a survey of the market
prices, check if the estimated cost of the contract is correct and review the Tender Documents
to check if he specifications, scope of work and conditions of contract are contributory to the
abnormally high tenders. The Procuring Entity may also seek written clarification from the
tenderer on the reason for the high tender price. The Procuring Entity shall proceed as follows:
i) If the tender price is abnormally high based on wrong estimated cost of the contract,
the Procuring Entity may accept or not accept the tender depending on the Procuring
Entity's budget considerations.

20
 ii) If specifications, scope of work and/or conditions of contract are contributory to the
abnormally high tender prices, the Procuring Entity shall reject all tenders and may
retender for the contract based on revised estimates, specifications, scope of work and
conditions of contract, as the case maybe.

37.6 If the Procuring Entity determines that the Tender Price is abnormally too high because genuine
competition between tenderers is compromised (often due to collusion, corruption or other
manipulations), the Procuring Entity shall reject all Tenders and shall institute or cause
competent Government Agencies to institute an investigation on the cause of the compromise,
before retendering.

38 Unbalanced and/or Front-Loaded Tenders

38.1 If in the Procuring Entity's opinion, the Tender that is evaluated as the lowest evaluated price is
seriously unbalanced and/or front loaded, the Procuring Entity may require the Tenderer to
provide written clarifications. Clarifications may include detailed price analyses to demonstrate
the consistency of the tender prices with the scope of works, proposed methodology, schedule
and any other requirements of the Tender document.

38.2 After the evaluation of the information and detailed price analyses presented by the Tenderer,
the Procuring Entity may as appropriate:
a) Accept the Tender; or
b) require that the total amount of the Performance Security be increased at the expense
of the Tenderer to a level not exceeding 10% of the Contract Price; or
c) agree on a payment mode that eliminates the inherent risk of the Procuring Entity
paying too much for undelivered works; or
d) Reject the Tender.

39 Qualification of the Tenderer

39.1 The Procuring Entity shall determine to its satisfaction whether the Tenderer that is selected as
having submitted the lowest evaluated cost and substantially responsive Tender is eligible and
meets the qualifying criteria specified in Section III, Evaluation and Qualification Criteria.

39.2 The determination shall be based upon an examination of the documentary evidence of the
Tenderer's qualifications submitted by the Tenderer, pursuant to ITT 18. The determination shall
not take into consideration the qualifications of other firms such as the Tenderer's subsidiaries,
parent entities, affiliates, subcontractors or any other firm(s)different from the Tenderer that
submitted the Tender.

39.3 An affirmative determination shall be a prerequisite for award of the Contract to the Tenderer.
A negative determination shall result in disqualification of the Tender, in which event the
Procuring Entity shall proceed to the Tenderer who offers a substantially responsive Tender
with the next lowest evaluated cost to make a similar determination of that Tenderer's
qualifications to perform satisfactorily.

40 Procuring Entity's Right to Accept Any Tender, and to Reject Any or All Tenders

40.1 The Procuring Entity reserves the right to accept or reject any Tender, and to annul the Tendering
process and reject all Tenders at any time prior to Contract Award, without there by incurring
any liability to Tenderers. In case of annulment, all Tenders submitted and specifically, Tender
securities, shall be promptly returned to the Tenderers.

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F. Award of Contract

41 Award Criteria

41.1 The Procuring Entity shall award the Contract to the successful tenderer whose tender has
been determined to be the Lowest Evaluated Tender.

42 Notice of Intention to enter in to a Contract

42.1 Upon award of the contract and Prior to the expiry of the Tender Validity Period the Procuring
Entity shall issue a Notification of Intention to Enter into a Contract/Notification of a ward to
all tenderers which shall contain, at a minimum, the following information:
a) The name and address of the Tenderer submitting the successful tender;
b) The Contract price of the successful tender;
c) a statement of the reason(s) the tender of the unsuccessful tenderer to whom the letter
is addressed was unsuccessful, unless the price information in(c) above already reveals
the reason;
d) the expiry date of the Stand still Period; and
e) instructions on how to request a debriefing and/or submit a complaint during the stand
still period;

43 Stand still Period

43.1 The Contract shall not be signed earlier than the expiry of a Standstill Period of 14 days to allow
any dissatisfied tender to launch a complaint. Where only one Tender is submitted, the Standstill
Period shall not apply.

43.2 Where a Standstill Period applies, it shall commence when the Procuring Entity has transmitted
to each Tenderer the Notification of Intention to Enter in to a Contract with the successful
Tenderer.

44 Debriefing by the Procuring Entity

44.1 On receipt of the Procuring Entity's Notification of Intention to Enter into a Contract referred
to in ITT 42, an unsuccessful tenderer may make a written request to the Procuring Entity for a
debriefing on specific issues or concerns regarding their tender. The Procuring Entity shall
provide the debriefing with in five days of receipt of the request.

44.2 Debriefings of unsuccessful Tenderers may be done in writing or verbally. The Tenderer shall
bear its own costs of attending such a debriefing meeting.

45 Letter of Award

Prior to the expiry of the Tender Validity Period and upon expiry of the Standstill Period
specified in ITT 43.1, upon addressing a complaint that has been filed within the Standstill
Period, the Procuring Entity shall transmit the Letter of Award to the successful Tenderer. The
letter of award shall request the successful tenderer to furnish the Performance Security within
21 days of the date of the letter.

46 Signing of Contract

46.1 Upon the expiry of the fourteen days of the Notification of Intention to enter into contract and
upon the parties meeting their respective statutory requirements, the Procuring Entity shall send
the successful Tenderer the Contract Agreement.

22
46.2 Within fourteen (14) days of receipt of the Contract Agreement, the successful Tenderer shall
sign, date, and return it to the Procuring Entity.

46.3 The written contract shall be entered into within the period specified in the notification of award
and before expiry of the tender validity period

47 Performance Security

47.1 Within twenty-one (21) days of the receipt of the Form of Acceptance from the Procuring
Entity, the successful Tenderer, if required, shall furnish the Performance Security in accordance
with the GCC 3.9, using for that purpose the Performance Security Form included in Section
VIII, Contract Forms, or another Form acceptable to the Procuring Entity. If the Performance
Security furnished by the successful Tenderer is in the form of a bond, it shall be issued by a
bonding or insurance company that has been determined by the successful Tenderer to be
acceptable to the Procuring Entity. A foreign institution providing a bond shall have a
correspondent financial institution located in Kenya, unless the Procuring Entity has agreed in
writing that a correspondent financial institution is not required.

47.2 Failure of the successful Tenderer to submit the above-mentioned Performance Security or sign
the Contract shall constitute sufficient grounds for the annulment of the award and forfeiture of
the Tender Security. In that event the Procuring Entity may award the Contract to the Tenderer
offering the next Best Evaluated Tender.

48 Publication of Procurement Contract

48.1 Within fourteen days after signing the contract, the Procuring Entity shall publish the awarded
contract at its notice boards and websites; and on the Website of the Authority. At the minimum,
the notice shall contain the following information:
a) Name and address of the Procuring Entity;
b) Name and reference number of the contract being awarded, a summary of
its scope and the selection method used;
c) The name of the successful Tenderer, the final total contract price, the contract duration.
d) Dates of signature, commencement and completion of contract;
e) Names of all Tenderers that submitted Tenders, and their Tender prices as read out at
Tender opening.

49 Adjudicator

49.1 The Procuring Entity proposes the person named in the TDS to be appointed as adjudicator or
under the Contract, at an hourly fee specified in the TDS, plus reimbursable expenses. If the
Tenderer disagrees with this Tender, the Tenderer should so state in the Tender. If, in the Form
of Acceptance, the Procuring Entity has not agreed on the appointment of the Adjudicator, the
Adjudicator shall be appointed by the Appointing Authority designated in the Special
Conditions of Contract at the request of either party.

50 Procurement Related Complaints and Administrative Review

50.1 The procedures for making a Procurement-related Complaint are as specified in the TDS.

50.2 A request for administrative review shall be made in the form provided under contract forms.

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 SECTION II - TENDERER DATASHEET (TDS)

ITT PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS

Reference

A. General

ITT 1.1 The reference number of the Request for Tenders (ITT) is : ACFC/HR/05/2023/24
The Procuring Entity is: Agro Chemical and Food Company Limited
The name of the ITT is: provision of Casual Labour Services.
The number and identification of lots (contracts) comprising this ITT is: one

ITT 2.2 The Intended Completion Date is within two years.

ITT 3.3 Information that any unfair competitive advantage over competing firms is as follow: None

ITT 3.4 The firms that provided consulting services: None

ITT 4.1 This ITT is open to eligible firms offering provision of man power services registered Kenya.

B. Contents of Tendering Document

ITT 8.1 (a) A pre-tender conference will not be held.

(b) A pre-arranged pretender visit of the site of the works visit will not be held.

ITT 9.1
i) The Tenderer will submit any request for clarifications in writing at the Address
tenders@acfc.co.ke to reach the Procuring Entity not later than April 24, 2023

ii) The Procuring Entity shall publish its response at the websites: www.acfc.co.ke &
www.tenders.go.ke

C. Preparation of Tenders

ITT 15.1 Alternative Tenders shall not be considered.

ITT 15.2 Alternative times for completion shall not be considered.

ITT 16.7 The prices quoted by the Tenderer shall not be subject to adjustment during the
performance of the Contract.

ITT 20.1 The Tender validity period shall be 90 days after date of Tender Opening.

ITT 21.1 Tender Security shall not be required.

A Tender-Securing Declaration shall be required.

ITT 22.1 In addition to the original of the Tender, the number of copies is: one. (i.e., One Original
&One Copy)

24
ITT PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS
Reference

ITT 22.3 The written confirmation of authorization to sign on behalf of the Tenderer shall consist of:
Power of Attorney.

D. Submission and Opening of Tenders

ITT 24.1 For Tender submission purposes only, the Procuring Entity’s address shall be as stated in
the Invitation to Tender.

ITT 24.1 The deadline for Tender submission is: April 27, 2023 at 1230hrs
Tenderers shall not have the option of submitting their Tenders electronically.

ITT 27.1 The Tender opening shall take place at:

Physical Address: ACFC Training Centre, at the Factory in Muhoroni.
Date: April 27, 2023.
Time: 1230hrs

ITT 27.6 The Form of Tender and priced Activity Schedule shall be initialed by three (3)
representatives of the Procuring Entity conducting Tender opening.

E. Evaluation and Comparison of Tenders

The currency that shall be used for Tender evaluation and comparison purposes only to
ITT 33.1
convert at the selling exchange rate all Tender prices expressed in various currencies into a
single currency is: Kenya Shillings rate at the date of tender opening as provided by the
Central bank of Kenya.
ITT 34.1 Margin of preference not allowed.
The invitation to tender is extended to the following group that qualify for Reservations:
ITT 34.2
Open to all.
ITT 35.2 (d) Additional evaluation factors shall be: None.

F. Award of Contract

ITT 49.1 The Adjudicator proposed by the Procuring Entity is: None
The procedures for making a Procurement-related Complaint are available from the PPRA
ITT 50.1
Website www.acfc.co.ke or email complaints@acfc.co.ke

If a Tenderer wishes to make a Procurement-related Complaint, the Tenderer should submit

its complaint following these procedures, in writing (by the quickest means available, that is
either by hand delivery or email to:

Agro Chemical and Food Company Limited

Muhoroni Town, next to Muhoroni Sugar Company Limited
P.O. Box 18 – 40107, Muhoroni
Email: purchasing@acfc.co.ke

In summary, a Procurement-related Complaint may challenge any of the following:

25
ITT PARTICULARS OF APPENDIX TO INSTRUCTIONS TO TENDERS
Reference

(i). the terms of the Tender Documents; and

(ii). the Procuring Entity’s decision to award the contract

26
SECTION III - EVALUATION AND QUALIFICATION CRITERIA

The Procuring Entity shall use the criteria and methodologies listed in this Section to evaluate tenders
and arrive at the Lowest Evaluated Tender. The tender that (i) meets the qualification criteria,(ii)has
been determined to be substantially responsive to the Tender Documents, and(iii) is determined to have
the Lowest Evaluated Tender price shall be selected for award of contract.

The evaluation will be carried out through the following stages

Stage 1: Preliminary examination for determination of responsiveness

Stage 2: Technical Evaluation
Stage 3: Post Qualification requirement
Stage 4: Financial Evaluation and Award Recommendation

Stage 1: Preliminary examination for determination of responsiveness

Responsive/
S/No. MANDATORY REQUIREMENT
Non-Responsive
MR1 Certificate of Incorporation/Registration
MR2 Must provide a Copy of Valid Tax Compliance Certificate
MR3 Provide copy of valid form CR12 / Partnership Deed/ National ID Card
MR4 Certified copy of Valid NHIF compliance certificate
MR5 Certified copy of Valid NSSF compliance certificate
MR6 Valid Copy of AGPO Certificate
Must submit duly filled up Confidential Business Questionnaire in the
MR7
format provided
Must fill & submit the certificate of independent tender determination
MR8
in the format provided.
Must fill & submit a self-declaration that the tenderer is not debarred
MR9
from participating in public procurement in the format provided.
Must fill & submit a self-declaration that the tenderer will not engage
MR10
in corruption or fraudulent practice in the format provided.
Must fill & submit Declaration and Commitment to the code of ethics in
MR11
the format provided.
Must fill & submit the Tender-Securing Declaration Form in the format
MR12
provided.
MR13 Must provide evidence of contractual liability cover/fidelity guarantee
Must provide a written undertaking to comply with all Labour Laws
and the minimum wage guidelines during the entire period of the
MR14
contract as provided for in the Employment Act №.1 of 2007 and the
Regulation of Wages (General) (Amendment) Order, 2022.
Power of attorney confirming the signature as a person duly authorized
MR15
to sign the tender on behalf of the Tenderer
At this stage, the tenderer’s submission will either be responsive or non-responsive. The non-responsive
submissions will be eliminated from the entire evaluation process and will not be considered further.
Stage 2: Technical Evaluation
This section will be marked out of 100 points and will determine the technical score.

27
 Max.
S/N Evaluation Attribute Weighting Score
Score
T1 Experience in similar Assignments
Three (3) years’ of experience in
1 Attach proof. (2mk for each complete year) 6
Provision of Casual Labour Services
Provide evidence of at least five (5) Copies of Contract/LSO ( 5 x 1mks)
2 similar assignments in the past three Reference letters of client letterheads 15
years (2020 - 2022) including contact persons’ details (5 x 2mks)
T2 Management & Staff Capacity
Organizational structure/profile with
Organizational structure/profile 5
clearly defined roles
Minimum Diploma in HRM (2mks)
Knowledge of the Labour Laws (3mks)
1 Site Manager / Supervisor At least five (5) years’ experience in Human 10
Resource Management (5mks)
(attach copies of certificates & CV)
Qualifications (2 x 2mks)
At least two (2) years’ experience (2 x 2mks)
Two other key staff proposed for the
2 Evidence of knowledge & Skills in relevant field 12
assignment
(2 x 2mks)
(attach copies of certificates & CV)
T3 Physical infrastructure
Provide details of physical location
Provide details of physical location &
of offices & service facilities,
1 contacts, and copies of either title, lease 5
including contacts for ease of
document or latest utility bills
communication
T4 Financial Capacity
Two (2) years audited account
1 Attach Documents 4
statements (2020 -2022)
2 Return on asset (ROA) 5% & above (4mks) 4
3 Current Ratio 1 & above (4mks) 4
4 Bank reference Letter/letter of credit Provide Letter 5
T5 Business Support
Value of Contractual Obligation / Attach Copy of policy (2mks)
1 5
Indemnity Cover Value of cover. 10m and above (3mks)
Must demonstrate ability to
Attach a written declaration to provide staff with
2 provide staff with PPEs and
PPEs and Uniforms
10
uniforms
Statement of compliance from ministry
Compliance with the minimum
(2Mks)
3 wage guidelines from ministry of 5
Genuine copies of payroll & bank slips
labour
(3Mks)
Copy of Valid GPA/WIBA cover (3Mks)
4 Staff welfare Other staff welfare programmes (specify) 5
(2Mks)
T6 Document presentation Well organized, bound & paginated 5
TOTAL 100

28
Only bidders who score 70% and above will be subjected to Financial Evaluation. Bidders who score
below 70% will be eliminated at this stage from the entire evaluation process.
Stage 3: Post Qualification
ACFC shall inspect the bidders’ premises and/or client site(s) to confirm the above details.
Stage 4: Financial Evaluation and Award Recommendation
This would involve verification of the financial offers and checking for arithmetical errors, omissions
and comparison of price among the qualified bidders who qualify at technical evaluation. The total
lowest priced bid will be considered best evaluated and subsequently recommended for award.

Note: the following formulas shall be used in calculations during Technical Evaluation.

Earnings After Tax

Return on Asset (ROA) =
Total Assets

Current assts
Current Ratio =
Current liabilities

29
SECTION IV - TENDERING FORMS

FORM OF TENDER

(Amended and issued pursuant to PPRA CIRCULAR No. 02/2022)

(The Tenderer must prepare this Form of Tender on stationery with its letterhead clearly
showing the Tenderer's complete name and business address. Tenderers are reminded that this
is a mandatory requirement.)

Date of this Tender submission:.............[insert date of Tender submission]

Tender №.: ACFC/HR/05/2023/24

Tender Name: Provision of Casual Labour Services

To: Agro Chemical and Food Company Limited

a) No reservations: We have examined and have no reservations to the tendering document,

including Addenda issued in accordance with ITT9;

b) Eligibility: We meet the eligibility requirements and have no conflict of interest in accordance
with ITT4;

c) Tender-Securing Declaration: We have not been suspended nor declared ineligible by the
Procuring Entity based on execution of a Tender-Securing Declaration or Proposal-Securing
Declaration in Kenya in accordance with ITT21;

d) Conformity: We offer to provide the Non-Consulting Services inconformity with the tendering
document of the following:[insert a brief description of the Non-Consulting Services];

e) Tender Price: The total price of our Tender, excluding any discounts offered in item (f) below
is: [insert the total price of the Tender in words and figures, indicating the various amounts and
the respective currencies];

f) Discounts: The discounts offered and the methodology for their application are:

i) The discounts offered are: [Specify in detail each discount offered.]

ii) The exact method of calculations to determine the net price after application of
discounts is shown below: [Specify in detail the method that shall be used to apply the
discounts];

g) Tender Validity Period: Our Tender shall be valid for the period specified in TDS 19.1 (as
amended if applicable) from the date fixed for the Tender submission deadline (specified in
TDS 23.1 (as amended if applicable), and it shall remain binding upon us and may be accepted
at any time before the expiration of that period;

h) Performance Security: If our Tender is accepted, we commit to obtain a Performance Security

in accordance with the tendering document;

i) One Tender Per Tenderer: We are not submitting any other Tender(s) as an individual
Tenderer, and we are not participating in any other Tender(s) a s a Joint Venture member or as
a subcontractor, and meet the requirements of ITT4.3, other than alternative Tenders submitted
in accordance with ITT14;

j) Suspension and Debarment: We, along with any of our subcontractors, suppliers, consultants,

30
 manufacturers,orserviceprovidersforanypartofthecontract,arenotsubjectto,and not controlled
by any entity or individual that is subject to, a temporary suspension or a debarment imposed
by the PPRA. Further, we are not ineligible under Kenya's official regulations or pursuant to a
decision of the United Nations Security Council;

k) State-owned enterprise or institution: [select the appropriate option and delete the other]
[We are not a state-owned enterprise or institution] / [We are a state-owned enterprise or
institution but meet the requirements of ITT 4.6];

l) Commissions, gratuities and fees: We have paid, or will pay the following commissions,
gratuities, or fees with respect to the Tendering process or execution of the Contract: [insert
complete name of each Recipient, its full address, r gratuity].

Name Of Recipient Address Reason Amount

(If none has been paid or is to be paid, indicate “none.”)

a) [Delete if not appropriate, or amend to suit]We confirm that we understand the

provisions relating to Standstill Period as described in this tendering document and the
Procurement Regulations.

m) Binding Contract: We understand that this Tender, together with your written acceptance
thereof included in your Form of Acceptance, shall constitute a binding contract between us,
until a formal contract is prepared and executed;

n) Not Bound to Accept: We understand that you are not bound to accept the lowest evaluated
cost Tender, the Best Evaluated Tender or any other Tender that you may receive; and

o) Fraud and Corruption: We hereby certify that we have taken steps to ensure that no person
acting for us or on our behalf engages in any type of Fraud and Corruption.

p) Collusive practices: We hereby certify and confirm that the tender is genuine, non-collusive
and made with the intention of accepting the contract if awarded. To this effect we have signed
the “Certificate of Independent tender Determination” attached below.

q) Code of Ethical Conduct: We undertake to adhere by the Code of Ethics for Persons
Participating in Public Procurement and Asset Disposal, copy available from ____ (specify
website) during the procurement process and the execution of any resulting contract.

r) We, the Tenderer, have completed fully and signed the following Forms as part of our Tender:

i) Tenderer's Eligibility; Confidential Business Questionnaire–to establish we are not in

any conflict to interest.

ii) Certificate of Independent Tender Determination–to declare that we completed the

tender without colluding with other tenderers.

iii) Self-Declaration of the Tenderer–to declare that we will, if awarded a contract, not
engage in any form of fraud and corruption.

31
 iv) Declaration and commitment to the Code of Ethics for Persons Participating in Public
Procurement and Asset Disposal.

Further, we confirm that we have read and understood the full content and scope of fraud and corruption
as informed in “Appendix 1- Fraud and Corruption” attached to the Form of Tender.

Name of the Tenderer:................................................. *[insert complete name of person

signing the Tender]

Name of the person duly authorized to sign the Tender on behalf of the
Tenderer:..........................**[insert complete name of person duly authorized to sign the
Tender]

Title of the person signing the Tender:.............. [insert complete title of the person signing
the Tender]

Signature of the person named above: ............................[insert signature of person whose

name and capacity are shown above]

Date signed.................. [insert date of signing] day of ..................................[insert month],

[insert year]

32
PRICE SCHEDULE OF SERVICES
All the Tenderers should give charges as per the listed categories of manpower
Any Contractor’s Total Per
Rate Per
Category Description Other Service Person Per
Hour
Charges Charge Day (8hrs)
Unskilled labour (Gardeners, cleaners,
1.
loaders, General manual jobs)
Semi-skilled (Messengers, turnboys,
2. Production helpers, Guest house
attendant
Skilled-Craft holders (Painter,
3. Plumber, carpenter, mason, welder,
Driver, weighbridge operators
Skilled -Diploma and above holders or
equivalent (Lab analyst, Process
4. operator, clerk, Technician, electrician,
instrumentation technician, mechanical
Artisan, Refrigeration technicians

SUMMARY OF COSTS
DESCRIPTION Category 1 Category 2 Category 3 Category 4
Cost per day (8 hrs.)
Commission
VAT
Total Consolidated cost
*** Quoted rates should not be less than the latest gazetted minimum wages prescribed by the
Government. Bidders are also advised to consider all other factors of payments like weekly offs and
compliance with labour laws.

Signed

Capacity / Title (Director or Partner or Sole Proprietor, etc.)

Full name

Duly authorized to sign the bid for and on behalf of:

[insert complete name of Tenderer]

Dated on day of [Insert date of signing]

Seal / Stamp.

33
 i) TENDERER'S ELIGIBILITY - CONFIDENTIAL BUSINESS QUESTIONNAIRE

Instruction to Tenderer

Tender is instructed to complete the particulars required in this Form, one form for each entity if
Tender is a JV. Tenderer is further reminded that it is an offence to give false information on this
Form.

a) Tenderer's details

ITEM DESCRIPTION
1 Name of the Procuring Entity
2 Reference Number of the Tender
3 Date and Time of Tender Opening
4 Name of the Tenderer
Full Address and Contact Details of the 1. Country
Tenderer. 2. City
3. Location
5 4. Building
5. Floor
6. Postal Address
7. Name and email of contact person.
Current Trade License Registration Number
6
and Expiring date
Name, country and full address (postal and
7 physical addresses, email, and telephone
number) of Registering Body/Agency
8 Description of Nature of Business
Maximum value of business which the Tenderer
9
handles.
State if Tenders Company is listed in stock
exchange, give name and full address (postal
10
and physical addresses, email, and telephone
number) of state which stock exchange

General and Specific Details

b) Sole Proprietor, provide the following details.
Name in full Age
Nationality Country of Origin
Citizenship

c) Partnership, provide the following details.

Names of Partners Nationality Citizenship % Shares owned

1
2
3

34
 d) Registered Company, provide the following details.

i) Private or public Company

ii) State the nominal and issued capital of the Company-

Nominal Kenya Shillings (Equivalent)

Issued Kenya Shillings (Equivalent)

iii) Give details of Directors as follows.

Names of Director Nationality Citizenship % Shares owned

1
2
3

e) DISCLOSURE OF INTEREST-Interest of the Firm in the Procuring Entity.

i) Are there any person/persons in…………….........……… (Name of Procuring Entity)

who has/have an interest or relationship in this firm? Yes/No……..........……………

If yes, provide details as follows.

Designation in the Procuring Interest or Relationship with

Names of Person
Entity Tenderer
1
2
3

ii) Conflict of interest disclosure

Type of Conflict Disclosure If YES provide details

YES or NO of the relationship
with Tenderer
1 Tenderer is directly or indirectly controlled by or is
under common control with another tenderer.
2 Tenderer receives or has received any direct or
indirect subsidy from another tenderer.
3 Tenderer has the same legal representative as
another tenderer
4 Tender has a relationship with another tenderer,
directly or through common third parties that puts
it in a position to influence the tender of another
tenderer, or influence the decisions of the
Procuring Entity regarding this tendering process.
5 Any of the Tenderer’s affiliates participated as a
consultant in the preparation of the design or
technical specifications of the works that are the
subject of the tender.

35
 Type of Conflict Disclosure If YES provide details
YES or NO of the relationship
with Tenderer
6 Tenderer would be providing goods, works, non-
consulting services or consulting services during
implementation of the contract specified in this
Tender Document.
7 Tenderer has a close business or family
relationship with a professional staff of the
Procuring Entity who are directly or indirectly
involved in the preparation of the Tender
document or specifications of the Contract, and/or
the Tender evaluation process of such contract.
8 Tenderer has a close business or family
relationship with a professional staff of the
Procuring Entity who would be involved in the
implementation or supervision of the Contract.
9 Has the conflict stemming from such relationship
stated in item 7 and 8 above been resolved in a
manner acceptable to the Procuring Entity
throughout the tendering process and execution of
the Contract?

f) Certification

On behalf of the Tenderer, I certify that the information given above is complete, current and accurate
as at the date of submission.

Full name

Title or designation

[Signature] [Date]

36
 ii) CERTIFICATE OF INDEPENDENT TENDER DETERMINATION

I, the undersigned, in submitting the accompanying Letter of Tender to the ……. [Name of Procuring
Entity] for…...[Name and number of tender] in response to the request for tenders made by:…………
[Name of Tenderer] do hereby make the following statements that I certify to be true and complete in
every respect:

I certify, on behalf of [Name of Tenderer] that:

1. I have read and I understand the contents of this Certificate;

2. I understand that the Tender will be disqualified if this Certificate is found not to be true and
complete in every respect;

3. I am the authorized representative of the Tenderer with authority to sign this Certificate, and to
submit the Tender on behalf of the Tenderer;

4. For the purposes of this Certificate and the Tender, I understand that the word “competitor”
shall include any individual or organization, other than the Tenderer, whether or not affiliated
with the Tenderer, who:
a) Has been requested to submit a Tender in response to this request for tenders;
b) could potentially submit a tender in response to this request for tenders, based on their
qualifications, abilities or experience;

5. The Tenderer discloses that [check one of the following, a s applicable]:

a) The Tenderer has arrived at the Tender independently from, and without consultation,
communication, agreement or arrangement with, any competitor;
b) the Tenderer has entered into consultations, communications, agreements or
arrangements with one or more competitors regarding this request for tenders, and the
Tenderer discloses, in the attached document(s), complete details thereof, including
the names of the competitors and the nature of, and reasons for, such consultations,
communications, agreements or arrangements;

6. In particular, without limiting the generality of paragraphs(5)(a) or (5)(b) above, there has been
no consultation, communication, agreement or arrangement with any competitor regarding:
a) prices;
b) methods, factors or formulas used to calculate prices;
c) the intention or decision to submit, or not to submit, a tender; or
d) the submission of a tender which does not meet the specifications of the request for
Tenders; except as specifically disclosed pursuant to paragraph (5) (b) above;

7. In addition, there has been no consultation, communication, agreement or arrangement with

any competitor regarding the quality, quantity, specifications or delivery particulars of the
works or services to which this request for tenders relates, except as specifically authorized by
the procuring authority or as specifically disclosed pursuant to paragraph (5)(b) above;

8. The terms of the Tender have not been, and will not be, knowingly disclosed by the Tenderer,
directly or indirectly, to any competitor, prior to the date and time of the official tender opening,
or of the awarding of the Contract, which ever comes first, unless otherwise required by law or
as specifically disclosed pursuant to paragraph (5) (b) above.

Name Title Date

[Name, title and signature of authorized agent of Tenderer and Date]

37
 iii) SELF-DECLARATION FORMS

SELF-DECLARATION FORMS

FORM SD1

SELF DECLARATION THAT THE PERSON/TENDERER IS NOT DEBARRED IN THE

MATTER OF THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT 2015.

I, …………………………………., of Post Office Box ………….……… being a resident of

……………… in the Republic of Kenya do hereby make a statement as follows:-

1. THAT I am the Company Secretary/ Chief Executive/ Managing Director/ Principal Officer/
Director of ……….... (Insert name of the Company) who is a Bidder in respect of Tender No.
………… for………… (Insert tender title/description) for ………… (Insert name of the
Procuring entity) and duly authorized and competent to make this statement.

2. THAT the aforesaid Bidder, its Directors and subcontractors have not been debarred from
participating in procurement proceeding under Part IV of the Act.

3. THAT what is deponed to here in above is true to the best of my knowledge, information and
belief.

Dated this day of 2023.

[Authorized Officer’s Name] [Designation]

[Signature & Date]

Bidder’s Company Seal / Rubber Stamp

38
 FORM SD2

SELF-DECLARATION THAT THE PERSON/ TENDERER WILL NOT ENGAGE IN ANY

CORRUPT OR FRAUDULENT PRACTICE.

I, ………………………………. of P. O. Box …….………. being a resident of ..................................

in the Republic of Kenya do hereby make a statement as follows:-

1. THAT I am the Chief Executive/ Managing Director/ Principal Officer/ Director of

……....................................... (Insert name of the Company) who is a Bidder in respect of
Tender No.......................... for …………………….. (Insert tender title/description)
for………...........……… (Insert name of the Procuring entity) and duly authorized and
competent to make this statement.

2. THAT the aforesaid Bidder, its servants and/or agents/subcontractors will not engage in any
corrupt or fraudulent practice and has not been requested to pay any inducement to any member
of the Board, Management, Staff and/or employees and/or agents of ………………… (insert
name of the Procuring entity) which is the procuring entity.

3. THAT the aforesaid Bidder, its servants and/or agents /subcontractors have not offered any
inducement to any member of the Board, Management, Staff and/or employees and/or agents of
……………………..(name of the procuring entity).

4. THAT the aforesaid Bidder will not engage/has not engaged in any corrosive practice with other
bidders participating in the subject tender

5. THAT what is deponed to here in above is true to the best of my knowledge information and
belief.

Dated this day of 2023.

[Authorized Officer’s Name] [Designation]

[Signature & Date]

Bidder’s Company Seal / Rubber Stamp

39
DECLARATION AND COMMITMENT TO THE CODE OF ETHICS

I, …………………………………............ (person) on behalf of (Name of the Business/ Company/

Firm)……………………………………… declare that I have read and fully understood the contents
of the Public Procurement & Asset Disposal Act, 2015, Regulations and the Code of Ethics for persons
participating in Public Procurement and Asset Disposal Activities in Kenya and my responsibilities
under the Code.
I do here by commit to abide by the provisions of the Code of Ethics for persons participating in
Public Procurement and Asset Disposal.

[Authorized Officer’s Name] [Designation]

[Signature & Date]

[Name & Office Address for the Firm]

[Telephone No.] [Email]

Bidder’s Company Seal / Rubber Stamp

[Witness’ Name] [Signature & Date]

40
 iv) APPENDIX1-FRAUDANDCORRUPTION

(Appendix 1 shall not be modified)

1. Purpose

1.1 The Government of Kenya's Anti-Corruption and Economic Crime laws and their sanction's
policies and procedures, Public Procurement and Asset Disposal Act (no. 33 of 2015) and its
Regulation, and any other Kenya's Acts or Regulations related to Fraud and Corruption, and
similar offences, shall apply with respect to Public Procurement Processes and Contracts that
are governed by the laws of Kenya.

2. Requirements

2.1 The Government of Kenya requires that all parties including Procuring Entities,
Tenderers, (applicants/proposers), Consultants, Contractors and Suppliers; any Sub-
contractors, Sub-consultants, Service providers or Suppliers; any Agents (whether declared or
not); and any of their Personnel, involved and engaged in procurement under Kenya's Laws
and Regulation, observe the highest standard of ethics during the procurement process,
selection and contract execution of all contracts, and refrain from Fraud and Corruption and
fully comply with Kenya's laws and Regulations as per paragraphs 1.1above.

2.2 Kenya's public procurement and asset disposal act (no. 33 of 2015) under Section 66 describes
rules to be followed and actions to be taken in dealing with Corrupt, Coercive, Obstructive,
Collusive or Fraudulent practices, and Conflicts of Interest in procurement including
consequences for offences committed. A few of the provisions noted be low highlight Kenya's
policy of no tolerance for such practices and behavior:

1) A person to whom this Act applies shall not be involved in any corrupt, coercive,
obstructive, collusive or fraudulent practice; or conflicts of interest in any procurement or
asset disposal proceeding;

2) A person referred to under sub section (1) who contravenes the provisions of that sub-
section commits an offence;

3) Without limiting the generality of the subsection (1) and (2), the person shall be: -

a) disqualified from entering into a contract for a procurement or asset disposal

proceeding; or

b) if a contract has already been entered into with the person, the contract shall be
voidable;

4) The voiding of a contract by the procuring entity under subsection (7) does not limit any
legal remedy the procuring entity may have;

3. An employee or agent of the procuring entity or a member of the Board or committee of the
procuring entity who has a conflict of interest with respect to a procurement: -
a) Shall not take part in the procurement proceedings;
b) shall not, after a procurement contract has been entered into, take part in any decision
relating to the procurement or contract; and
c) Shall not be a subcontractor for the tender to whom was awarded contract, or a member of
the group of tenders to whom the contract was awarded, but the subcontractor appointed
shall meet all the requirements of this Act.

41
4. An employee, agent or member described in subsection (1) who refrains from doing anything
prohibited under that subsection, but for that subsection, would have been within his or her
duties shall disclose the conflict of interest to the procuring entity;

4.1 If a person contravenes subsection (1) with respect to a conflict of interest described in
subsection (5) (a) and the contract is awarded to the person or his relative or to another person
in whom one of them had a direct or indirect pecuniary interest, the contract shall be terminated
and all costs incurred by the public entity shall be made good by the awarding officer. etc.
In compliance with Kenya's laws, regulations and policies mentioned above, the Procuring
Entity:

a) Defines broadly, for the purposes of the above provisions, the terms set forth below as
follows:
i) “corrupt practice” is the offering, giving, receiving, or soliciting, directly or
indirectly, of anything of value to influence improperly the actions of another party;
ii) “fraudulent practice” is any act or omission, including misrepresentation, that
knowingly or recklessly misleads, or attempts to mislead, a party to obtain financial
or other benefit or to avoid an obligation;
iii) “collusive practice” is an arrangement between two or more parties designed to
achieve an improper purpose, including to influence improperly the actions of
another party;
iv) “coercive practice” is impairing or harming, or threatening to impair or harm,
directly or indirectly, any party or the property of the party to influence improperly
the actions of a party;

v) “obstructive practice” is:

✓ deliberately destroying, falsifying, altering, or concealing of evidence material
to the investigation or making false statements to investigators in order to
materially impede investigation by Public Procurement Regulatory Authority
(PPRA) or any other appropriate authority appointed by Government of Kenya
into allegations of a corrupt, fraudulent, coercive, or collusive practice; and/or
threatening, harassing, or intimidating any party to prevent it from disclosing
its knowledge of matters relevant to the investigation or from pursuing the
investigation; or
✓ acts intended to materially impede the exercise of the PPRA's or the appointed
authority's inspection and audit rights provided for under paragraph 2.3e.
below.

b) Defines more specifically, in accordance with the above procurement Act provisions set
forth for fraudulent and collusive practices as follows:

"fraudulent practice" includes a misrepresentation of fact in order to influence a

procurement or disposal process or the exercise of a contract to the detriment of the
procuring entity or the tenderer or the contractor, and includes collusive practices amongst
tenderers prior to or after tender submission designed to establish tender prices at artificial
non-competitive levels and to deprive he procuring entity of the benefits of free and open
competition.

c) Rejects a proposal for award1 of a contract if PPRA determines that the firm or individual
recommended for award, any of its personnel, or its agents, or its sub-consultants, sub-
contractors, service providers, suppliers and/ or their employees, has, directly or indirectly,
engaged in corrupt, fraudulent, collusive, coercive, or obstructive practices in competing

42
 for the contract in question;

d) Pursuant to the Kenya's above stated Acts and Regulations, may sanction or recommend to
appropriate authority(ies) for sanctioning and debarment of a firm or individual, as
applicable under the Act sand Regulations;

e) Requires that a clause be included in Tender documents and Request for Proposal
documents requiring (i) Tenderers (applicants/proposers), Consultants, Contractors, and
Suppliers, and their Sub-contractors, Sub-consultants, Service providers, Suppliers, Agents
personnel, permit the PPRA or any other appropriate authority appointed by Government
of Kenya to inspect2all accounts, records and other documents relating to the procurement
process, selection and/or contract execution, and to have them audited by auditors
appointed by the PPRA or any other appropriate authority appointed by Government of
Kenya; and

f) Pursuant to Section 62 of the above Act, requires Applicants/Tenderers to submit along

with their Applications/Tenders/Proposals a “Self-Declaration Form” as included in the
procurement document declaring that they and all parties involved in the procurement
process and contract execution have not engaged/will not engage in any corrupt or
fraudulent practices.

Signed & Stamped

1For the avoidance of doubt, a party's ineligibility to be awarded a contract shall include, without limitation, (i) applying for
pre-qualification, expressing interest in A consultancy, and rendering, either directly or as a nominated sub-contractor,
nominated consultant, nominated manufacturer or supplier, or nominated service provider, in respect of such contract, and
(ii) entering into an addendum or amendment introducing a material modification to any existing contract.
2 Inspections in this context usually are investigative (i.e., forensic) in nature. They involve fact-finding activities undertaken
by the Investigating Authority or persons appointed by the Procuring Entity to address specific matters related to
investigations/ audits, such as evaluating the veracity of an allegation of possible Fraud and Corruption, through the
appropriate mechanisms. Such activity includes but is not limited to: accessing and examining a firm's or individual's financial
records and information, and making copies thereof as relevant; accessing and examining any other documents, data and
information (whether in hard copy or electronic format)deemed relevant for the investigation/ audit, and making copies there
of as relevant; interviewing staff and other relevant individuals; performing physical inspections and site visits; and obtaining
third party verification of information.

43
2. TENDERER INFORMATION FORM

[The Tenderer shall fill in this Form in accordance with the instructions indicated below. No alterations
to its format shall be permitted and no substitutions shall be accepted.]

Date:...................................................[insert date (as day, month and year) of Tender submission]

ITT No.:............................................ [insert number of Tendering process]

1. Tenderer's Name: ........................................................... [insert Tenderer's legal name]

2. In case of JV, legal name of each member: ..................................................[insert legal name of

each member in JV]

3. Tenderer's actual or intended country of registration: .....................................[insert actual or

intended country of registration]

4. Tenderer's year of registration: .................................................................[insert Tenderer's year

of registration]

5. Tenderer's Address in country of registration: ..................................................[insert Tenderer's

legal address in country of registration]

6. Tenderer's Authorized Representative Information

Name: .........................................[insert Authorized Representative's name]

Address.......................................[insert Authorized Representative's Address]
Telephone:..................................[insert Authorized Representative's telephone/fax numbers]
Email Address:...........................[insert Authorized Representative's email address]

7. Attached are copies of original documents of............................. [check the box(es) of the
attached original documents]

Articles of Incorporation (or equivalent documents of constitution or association), and/or

documents of registration of the legal entity named above, in accordance with ITT 4.4.

In case of JV, Form of intent to form JV or JV agreement, in accordance with ITT

4.1. In case of state-owned enterprise or institution, in accordance with ITT4.6 documents
establishing:

i) Legal and financial autonomy

ii) Operation under commercial law

iii) Establishing that the Tenderer is not under the supervision of the agency of the
Procuring Entity

A current tax clearance certificate or tax exemption certificate in case of Kenyan tenderers
issued by the Kenya Revenue Authority in accordance with ITT 4.14.

8. Included are the organizational chart, a list of Board of Directors, and the beneficial ownership.

44
OTHER FORMS

3. TENDERER'S JV MEMBERS INFORMATION FORM

[The Tenderers hall fill in this Form in accordance with the instructions indicated below. The following
table shall be filled in for the Tenderer and for each member of a Joint Venture]].

Date: .........................................................[insert date (as day, month and year) of Tender submission]

ITT No.: .................................................. [insert number of Tendering process]

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

1. Tenderer’s Name: [insert Tenderer’s legal name]

2. Tenderer’s JV Member’s name: [insert JV’s Member legal name]

3. Tenderer’s JV Member’s country of registration: [insert JV’s Member country of registration]

4. Tenderer’s JV Member’s year of registration: [insert JV’s Member year of registration]

5. Tenderer’s JV Member’s legal address in country of registration: [insert JV’s Member legal
address in country of registration]

6. Tenderer’s JV Member’s authorized representative information

Name: [insert name of JV’s Member authorized representative]

Address: [insert address of JV’s Member authorized representative]

Telephone/Fax numbers: [insert telephone/fax numbers of JV’s Member authorized representative]

Email Address: [insert email address of JV’s Member authorized representative]

7. Attached are copies of original documents of [check the box(es) of the attached original
documents]

 Articles of Incorporation (or equivalent documents of constitution or association), and/or

registration documents of the legal entity named above, in accordance with ITT 4.4.

 In case of a state-owned enterprise or institution, documents establishing legal and financial

autonomy, operation in accordance with commercial law, and that they are not under the
supervision of the Procuring Entity, in accordance with ITT 4.6.

8. Included are the organizational chart and a list of Board of Directors.

45
FORM OF TENDER SECURITY -[Option 1–Demand Bank Guarantee]

Beneficiary:

Request for Tenders No:

Date:

TENDER GUARANTEE No.:

Guarantor:

1. We have been informed that_______ (here in after called "the Applicant") has submitted or
will submit to the Beneficiary its Tender (here in after called" the Tender") for the execution
of ________under Request for Tenders No. ____________ (“the ITT”).

2. Furthermore, we understand that, according to the Beneficiary's conditions, Tenders must be

supported by a Tender guarantee.

3. At the request of the Applicant, we, as Guarantor, hereby irrevocably undertake to pay the
Beneficiary any sum or sums not exceeding in total an amount of
(______) upon receipt by us of the Beneficiary's complying
demand, supported by the Beneficiary's statement, whether in the demand itself or a separate
signed document accompanying or identifying the demand, stating that either the Applicant:

(a). has withdrawn its Tender during the period of Tender validity set forth in the
Applicant's Letter of Tender (“the Tender Validity Period”), or any extension thereto
provided by the Applicant; or

(b). having been notified of the acceptance of its Tender by the Beneficiary during the
Tender Validity Period or any extension thereto provided by the Applicant, (i) has
failed to execute the contract agreement, or (ii) has failed to furnish the Performance.

4. This guarantee will expire: (a) if the Applicant is the successful Tenderer, upon our receipt
of copies of the contract agreement signed by the Applicant and the Performance Security
and, or (b) if the Applicant is not the successful Tenderer, upon the earlier of (i) our receipt
of a copy of the Beneficiary's notification to the Applicant of the results of the Tendering
process; or (ii) thirty days after the end of the Tender Validity Period.
5. Consequently, any demand for payment under this guarantee must be received by us at
the office indicated above on or before that date.

[signature(s)]

Note: All italicized text is for use in preparing this form and shall be deleted from the final
product.

46
FORMAT OF TENDER SECURITY [Option 2–Insurance Guarantee]

TENDER GUARANTEE No.:

1. Whereas ………… [Name of the tenderer] (hereinafter called “the tenderer”) has
submitted its tender dated ……… [Date of submission of tender] for the …………… [Name
and/or description of the tender] (hereinafter called “the Tender”) for the execution of
under Request for Tenders No. (“the ITT”).

2. KNOW ALL PEOPLE by these presents that WE ………………… of ………… [Name of

Insurance Company] having our registered office at …………… (hereinafter called “the
Guarantor”), are bound unto …………….. [Name of Procuring Entity] (hereinafter called
“the Procuring Entity”) in the sum of ………………… (Currency and guarantee amount)
for which payment well and truly to be made to the said Procuring Entity, the Guarantor binds
itself, its successors and assigns, jointly and severally, firmly by these presents.

Sealed with the Common Seal of the said Guarantor this ___day of ______ 20 __.

3. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if the

Applicant:

a) has withdrawn its Tender during the period of Tender validity set forth in the
Principal's Letter of Tender (“the Tender Validity Period”), or any extension
thereto provided by the Principal; or

b) having been notified of the acceptance of its Tender by the Procuring Entity
during the Tender Validity Period or any extension thereto provided by the
Principal; (i) failed to execute the Contract agreement; or (ii) has failed to furnish
the Performance Security, in accordance with the Instructions to tenderers (“ITT”)
of the Procuring Entity's Tendering document.

4. then the guarantee undertakes to immediately pay to the Procuring Entity up to the
above amount upon receipt of the Procuring Entity's first written demand, without the
Procuring Entity having to substantiate its demand, provided that in its demand the
Procuring Entity shall state that the demand arises from the occurrence of any of the
above events, specifying which event(s) has occurred.

5. This guarantee will expire: (a) if the Applicant is the successful Tenderer, upon our
receipt of copies of the contract agreement signed by the Applicant and the
Performance Security and, or (b) if the Applicant is not the successful Tenderer, upon
the earlier of (i) our receipt of a copy of the Beneficiary's notification to the Applicant
of the results of the Tendering process; or (ii)twenty-eight days after the end of the
Tender Validity Period.

6. Consequently, any demand for payment under this guarantee must be received by us
at the office indicated above on or before that date.

_________________________ ______________________________
[Date ] [Signature of the Guarantor]

_________________________ ______________________________
[Witness] [Seal]
Note: All italicized text is for use in preparing this form and shall be deleted from the final product.

47
TENDER-SECURING DECLARATION FORM

[The Bidder shall complete this Form in accordance with the instructions indicated]

Date:................................ [insert date(as day, month and year) of Tender Submission]

Tender No.:..........................................................[insert number of tendering process]
To:..........................................................[insert complete name of Purchaser]

I/We, the undersigned, declare that:

1. I/We understand that, according to your conditions, bids must be supported by a Tender-
Securing Declaration.

2. I/We accept that I / we will automatically be suspended from being eligible for tendering in
any contract with the Purchaser for the period of time of [insert number of months or years]
starting on [insert date], if we are in breach of our obligation (s) under the bid conditions,
because we – (a) have withdrawn our tender during the period of tender validity specified by
us in the Tendering Data Sheet; or (b) having been notified of the acceptance of our Bid by
the Purchaser during the period of bid validity, (i) fail or refuse to execute the Contract, if
required, or(ii) fail or refuse to furnish he Performance Security, in accordance with the
instructions to tenders.

3. I/We understand that this Tender Securing Declaration shall expire if we are not the successful
Tenderer(s), upon the earlier of:

a) Our receipt of a copy of your notification of the name of the successful Tenderer; or

b) thirty days after the expiration of our Tender.

4. I / We understand that if I am / we are / in a Joint Venture, the Tender Securing Declaration

must be in the name of the Joint Venture that submits the bid , and the Joint Venture has not
been legally constituted at the time of bidding, the Tender Securing Declaration shall be in
the names of all future partners as named in the letter of intent.

Signed

Capacity / title (director or partner or sole proprietor, etc.)

Full name

Duly authorized to sign the bid for and on behalf of:

[insert complete name of Tenderer]
Dated on day of [Insert date of signing]

Seal or Stamp.

*: In the case of the Tender submitted by joint venture specify the name of the Joint Venture as Tenderer
**: Person signing the Tender shall have the power of attorney given by the Tenderer attached to the Tender
Note: In case of a Joint Venture, the Tender-Securing Declaration must be in the name of all members to the
Joint Venture that submits the Tender.

48
FORM EQU: EQUIPMENT

The Tenderer shall provide adequate information to demonstrate clearly that it has the capability to
meet the requirements for the key equipment listed in Section III, Evaluation and Qualification Criteria.
A separate Form shall be prepared for each item of equipment listed, or for alternative equipment
proposed by the Tenderer.

Item of equipment

Equipment
Name of manufacturer Model and power rating
information

Capacity Year of manufacture

Current status Current location

Details of current commitments

Indicate source of the equipment

Source
 Owned  Rented  Leased  Specially manufactured

Omit the following information for equipment owned by the Tenderer.

Owner Name of owner

Address of owner

Telephone Contact name and title

Fax Telex

Agreements Details of rental / lease / manufacture agreements specific to the project

49
FORM PER - 1

Contractor's Representative and Key Personnel Schedule

Tenderers should provide the names and details of the suitably qualified Contractor's Representative
and Key Personnel to perform the Contract. The data on their experience should be supplied using the
Form PER-2 below for each candidate.

Contractor' Representative and Key Personnel

1. Title of position: Contractor’s Representative

Name of candidate:
Duration of [insert the whole period (start and end dates) for which this position will be
appointment: engaged]
Time commitment: for [insert the number of days/week/months/ that has been scheduled for this
this position: position]
Expected time schedule [insert the expected time schedule for this position (e.g. attach high level
for this position: Gantt chart]
2. Title of position: [______________________]
Name of candidate:
Duration of [insert the whole period (start and end dates) for which this position will be
appointment: engaged]
Time commitment: for [insert the number of days/week/months/ that has been scheduled for this
this position: position]
Expected time schedule [insert the expected time schedule for this position (e.g. attach high level
for this position: Gantt chart]
3. Title of position: [______________________]
Name of candidate:
Duration of [insert the whole period (start and end dates) for which this position will be
appointment: engaged]
Time commitment: for [insert the number of days/week/months/ that has been scheduled for this
this position: position]
Expected time schedule [insert the expected time schedule for this position (e.g. attach high level
for this position: Gantt chart]
4. Title of position: [______________________]
Name of candidate:
Duration of [insert the whole period (start and end dates) for which this position will be
appointment: engaged]
Time commitment: for [insert the number of days/week/months/ that has been scheduled for this
this position: position]
Expected time schedule [insert the expected time schedule for this position (e.g. attach high level
for this position: Gantt chart]
5. Title of position: [insert title]
Name of candidate
Duration of [insert the whole period (start and end dates) for which this position will be
appointment: engaged]
Time commitment: for [insert the number of days/week/months/ that has been scheduled for this
this position: position]
Expected time schedule [insert the expected time schedule for this position (e.g. attach high level
for this position: Gantt chart]

50
FORM PER-2:

Resume and Declaration - Contractor's Representative and Key Personnel.

Name of Tenderer

Position [#1]: [title of position from Form PER-1]

Personnel information Name: Date of birth:
Address: E-mail:

Professional qualifications:
Academic qualifications:
Language proficiency: [language and levels of speaking, reading and writing
skills]
Details
Address of Procuring Entity:
Telephone: Contact (manager / personnel officer):
Fax:
Job title: Years with present Procuring Entity:

Summarize professional experience in reverse chronological order. Indicate particular technical and
managerial experience relevant to the project.

Duration of
Project Role Relevant experience
involvement
[main project [role and responsibilities on [describe the experience relevant to
[time in role]
details] the project] this position]

DECLARATION

I, the undersigned................................[insert either “Contractor's Representative” or “Key Personnel”

as applicable], certify that to the best of my knowledge and belief, the information contained in this
Form PER-2 correctly describes myself, my qualifications and my experience.

I confirm that I am available as certified in the following table and throughout the expected time
schedule for this position as provided in the Tender:-

Commitment Details
Commitment to duration [insert period (start and end dates) for which this Contractor’s
of contract: Representative or Key Personnel is available to work on this contract]
[insert period (start and end dates) for which this Contractor’s
Time commitment:
Representative or Key Personnel is available to work on this contract]

I understand that any misrepresentation or omission in this Form may:

a) be taken into consideration during Tender evaluation;
b) result in my disqualification from participating in the Tender;
c) result in my dismissal from the contract.

51
Name of Contractor's Representative or Key Personnel: [insert name]

Signature:

Date: (day month year):

Countersignature of authorized representative of the Tenderer:

Signature:

Date: (day month year):

52
 TENDERERS QUALIFICATION WITHOUT PRE-QUALIFICATION

To establish its qualifications to perform the contract in accordance with Section III, Evaluation and
Qualification Criteria the Tenderer shall provide the information requested in the corresponding
Information Sheets included hereunder.

FORM ELI -1.1 Tenderer Information Form

Date: ITT No. and title:

Tenderer's name
In case of Joint Venture (JV), name of each member:
Tenderer's actual or intended country of registration:
[indicate country of Constitution]
Tenderer's actual or intended year of incorporation:
Tenderer's legal address [in country of registration]:

Tenderer's authorized representative information

Name: _____________________________________

Address: ___________________________________

Telephone/Fax numbers: _______________________

E-mail address: ______________________________

1. Attached are copies of original documents of

 Articles of Incorporation (or equivalent documents of constitution or association), and/or documents

of registration of the legal entity named above, in accordance with ITT 4.4

 In case of JV, letter of intent to form JV or JV agreement, in accordance with ITT 4.1

 In case of state-owned enterprise or institution, in accordance with ITT 4.6, documents establishing:

• Legal and financial autonomy

• Operation under commercial law

• Establishing that the Tenderer is not under the supervision of the Procuring Entity

2. Included are the organizational chart and a list of Board of Directors.

53
FORM ELI -1.2

Tenderer's JV Information Form

(to be completed for each member of Tenderer's JV)

Date: ITT No. and title:

Tenderer’s JV name:
JV member’s name:
JV member’s country of registration:
JV member’s year of constitution:
JV member’s legal address in country of constitution:

JV member’s authorized representative information

Name: ____________________________________

Address: __________________________________

Telephone/Fax numbers: _____________________

E-mail address: _____________________________

1. Attached are copies of original documents of

 Articles of Incorporation (or equivalent documents of constitution or association), and/or

registration documents of the legal entity named above, in accordance with ITT 4.4.

 In case of a state-owned enterprise or institution, documents establishing legal and financial

autonomy, operation in accordance with commercial law, and that they are not under the
supervision of the Procuring Entity, in accordance with ITT 4.6.

2. Included are the organizational chart and a list of Board of Directors.

54
 FORM CON –2

Historical Contract Non-Performance, Pending Litigation and Litigation History

Tenderer's Name:

Date:

JV Member's Name

ITT No. and title:

Non-Performed Contracts in accordance with Section III, Evaluation and Qualification Criteria
 Contract non-performance did not occur since 1st January [insert year] specified in Section III, Evaluation
and Qualification Criteria, Sub-Factor 2.1.
 Contract(s) not performed since 1st January [insert year] specified in Section III, Evaluation and
Qualification Criteria, requirement 2.1

Year Non-performed Contract Identification Total Contract

portion of Amount (current
contract value, currency,
exchange rate and
Kenya Shilling
equivalent)
[insert year] [insert amount and Contract Identification: [indicate complete contract [insert amount]
percentage] name/ number, and any other identification]
Name of Procuring Entity: [insert full name]
Address of Procuring Entity: [insert street/city/country]
Reason(s) for nonperformance: [indicate main reason(s)]
Pending Litigation, in accordance with Section III, Evaluation and Qualification Criteria
 No pending litigation in accordance with Section III, Evaluation and Qualification Criteria, Sub-Factor
2.3.
 Pending litigation in accordance with Section III, Evaluation and Qualification Criteria, Sub-Factor 2.3 as
indicated below.

Amount in Total Contract Amount

Year of
dispute Contract Identification (currency), Kenya Shilling
dispute
(currency) Equivalent (exchange rate)
Contract Identification: ___________
Name of Procuring Entity: ________
Address of Procuring Entity: ______
Matter in dispute: _______________
Party who initiated the dispute: ____
Status of dispute: _______________

Contract Identification:
Name of Procuring Entity:
Address of Procuring Entity:
Matter in dispute:
Party who initiated the dispute:
Status of dispute:

55
 Amount in Total Contract Amount
Year of
dispute Contract Identification (currency), Kenya Shilling
dispute
(currency) Equivalent (exchange rate)
Litigation History in accordance with Section III, Evaluation and Qualification Criteria
 No Litigation History in accordance with Section III, Evaluation and Qualification Criteria, Sub-
Factor 2.4.
 Litigation History in accordance with Section III, Evaluation and Qualification Criteria, Sub-Factor 2.4
as indicated below.
Total Contract Amount
Outcome as
Year of (currency), Kenya
percentage of Contract Identification
award Shilling Equivalent
Net Worth
(exchange rate)
Contract Identification: [indicate
complete contract name, number,
and any other identification]
Name of Procuring Entity:
[insert full name]
Address of Procuring Entity:
[insert street/city/country]
[insert
[insert year] Matter in dispute: [indicate main [insert amount]
percentage]
issues in dispute]
Party who initiated the dispute:
[indicate “Procuring Entity” or
“Contractor”]
Reason(s) for Litigation and
award decision [indicate main
reason(s)]

56
Financial Situation and Performance

Tenderer's Name:

Date:

JV Member's Name

ITT No. and title:

Financial Data

Type of Financial information Historic information for previous ____ years, _____ (amount
in____________ (currency) in currency, currency, exchange rate*, USD equivalent)
Year 1 Year 2 Year 3 Year 4 Year 5
Statement of Financial Position (Information from Balance Sheet)
Total Assets (TA)
Total Liabilities (TL)
Total Equity/Net Worth (NW)
Current Assets (CA)
Current Liabilities (CL)
Working Capital (WC)
Information from Income Statement
Total Revenue (TR)
Profits Before Taxes (PBT)
Cash Flow Information
Cash Flow from Operating Activities
*Refer to ITT 15 for the exchange rate

Sources of Finance

Specify sources of finance to meet the cash flow requirements on works currently in progress
and for future contract commitments.

Amount (Kenya Shilling

No. Source of finance
equivalent)
1
2
3

Financial documents

The Tenderer and its parties shall provide copies of financial statements for years pursuant
Section III, Evaluation and Qualifications Criteria, Sub-factor3.1.The financial statements shall:

a) reflect the financial situation of the Tenderer or in case of JV member, and not an affiliated
entity (such as parent company or group member).

57
 b) Be independently audited or certified in accordance with local legislation.

c) Be complete, including all notes to the financial statements.

d) Correspond to accounting periods already completed and audited.

Attached are copies of financial statements1for the years required above; and complying with
the requirements

2If the most recent set of financial statements is for a period earlier than 12 months from the date of Tender, the reason for this should be
justified.

58
FORM FIN–3.3:

Financial Resources

Specify proposed sources of financing, such as liquid assets, unencumbered real assets, lines of credit,
and other financial means, net of current commitments, available to meet the total construction cash
flow demands of the subject contractor contracts as specified in Section III, Evaluation and
Qualification Criteria.

Financial Resources
Amount (Kenya Shilling
No. Source of financing
equivalent)
1

59
 FORMFIN–3.4:

Current Contract Commitments / Works in Progress

Tenderers and each member to a JV should provide information on their current commitments on all
contracts that have been awarded, or for which a letter of intent or acceptance has been received, or for
contracts approaching completion, but for which an unqualified, full completion certificate has yet to
be issued.

Procuring Entity’s Value of Outstanding Work Estimated Average Monthly Invoicing

Name of
No. Contact Address, [Current Kenya Shilling Completion Over Last Six Months
Contract
Tel, /month Equivalent] Date [Kenya Shilling /month)]
1
2
3
4
5

60
 1. NOTIFICATION OF INTENTION TO AWARD

[This Notification of Intention to Award shall be sent to each Tenderer that submitted a Tender.] [Send
this Notification to the Tenderer's Authorized Representative named in the Tenderer Information Form]

For the attention of Tenderer's Authorized Representative

Name: .............................................................[insert Authorized Representative's name]

Address: .........................................................[insert Authorized Representative's Address]

Telephone numbers: ..................................[insert Authorized Representative's telephone/fax numbers]

Email Address:............................................... [insert Authorized Representative's email address]

[IMPORTANT: insert the date that this Notification is transmitted to Tenderers. The Notification
must be sent to all Tenderers simultaneously. This means on the same date and as close to the
same time as possible.]

DATE OF TRANSMISSION:................ This Notification is sent by: [email/fax] on [date] (local time)

Procuring Entity: .......................................[insert the name of the Procuring Entity]

Contract title:............................................. [insert the name of the contract]

ITT No: .......................................................[insert ITT reference number from Procurement Plan]

This Notification of Intention to Award (Notification) notifies you of our decision to award the above
contract. The transmission of this Notification begins the Standstill Period. During the Standstill Period
you may:

a) Request a debriefing in relation to the evaluation of your Tender, and/or

b) Submit a Procurement-related Complaint in relation to the decision to award the contract.

I). The successful Tenderer

Name: [insert name of successful Tenderer]

Address: [insert address of the successful Tenderer]
Contract price: [insert contract price of the successful Tender]

II). Other Tenderers [INSTRUCTIONS: insert names of all Tenderers that submitted a Tender. If the
Tender's price was evaluated include the evaluated price as well as the Tender price as read out.]

Name of Tenderer Tender price Evaluated Tender price (if applicable)

[insert name] [insert Tender price] [insert evaluated price]
[insert name] [insert Tender price] [insert evaluated price]
[insert name] [insert Tender price] [insert evaluated price]
[insert name] [insert Tender price] [insert evaluated price]
[insert name] [insert Tender price] [insert evaluated price]

61
 III). How to request a debriefing

DEADLINE: The deadline to request a debriefing expires at midnight on [insert date] (local time).

You may request a debriefing in relation to the results of the evaluation of your Tender. If you decide to
request a debriefing your written request must be made within three (3)Business Days of receipt of this
Notification of Intention to Award.

Provide the contract name, reference number, name of the Tenderer, contact details; and address the
request for debriefing as follows:

Attention: ...................................................[insert full name of person, if applicable]

Title/position: .............................................[insert title/position]
Agency: .......................................................[insert name of Procuring Entity]
Email address:............................................ [insert email address]

If your request for a debriefing is received within the3Business Days deadline, we will provide the
debriefing within five (5) Business Days of receipt of your request. If we are unable to provide the
debriefing within this period, the Standstill Period shall be extended by five (5) Business Days after the
date that the debriefing is provided. If this happens, we will notify you and confirm the date that the
extended Standstill Period will end.

The debriefing may be in writing, by phone, video conference call or in person. We shall promptly
advise you in writing how the debriefing will take place and confirm the date and time.

If the deadline to request a debriefing has expired, you may still request a debriefing. In this case, we
will provide the debriefing as soon as practicable, and normally no later than fifteen (15) Business Days
from the date of publication of the Contract Award Notice.
IV). How to make a complaint

Period: Procurement-related Complaint challenging the decision to award shall be submitted by

[insert date and time].

Provide the contract name, reference number, name of the Tenderer, contact details; and address the
Procurement- related Complaint as follows:

Attention: ...................................................[insert full name of person, if applicable]

Title/position: .............................................[insert title/position]
Agency: .......................................................[insert name of Procuring Entity]
Email address:............................................ [insert email address]

At this point in the procurement process, you may submit a Procurement-related Complaint challenging
the decision to award the contract. You do not need to have requested, or received, a debriefing before
making this complaint. Your complaint must be submitted within the Stand still Period and received by
us before the Stand still Period ends.

In summary, there are four essential requirements:

1. You must be an 'interested party'. In this case, that means a Tenderer who submitted a Tender
in this tendering process, and is the recipient of a Notification of Intention to Award.

2. The complaint can only challenge the decision to award the contract.

3. You must submit the complaint within the period stated above.

62
 4. You must include, in your complaint, all of the information required to support the complaint.

5. The application must be accompanied by the fees set out in the Procurement Regulations, which
shall not berefundable ( information available from the public procurement regulatory authority
at info@ppra.go.ke or complaints@ppra.go.ke )

V). Standstill Period

DEADLINE: The Standstill Period is due to end at midnight on [insert date] (local time).

The Standstill Period lasts ten (10) Business Days after the date of transmission of this Notification of
Intention to Award.

The Standstill Period may be extended as stated in Section 4 above. If you have
any questions regarding this Notification please do not hesitate to contact us.

On behalf of the Procuring Entity:

Signature:
Name:
Title/position:
Telephone:
Email:

63
 2. FORM FOR REVIEW(r.203(1)

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….. for
......... (Tender description).
REQUEST FOR REVIEW
I/We ……………………………, the above-named Applicant(s), of address: Physical address
……………. P. O. Box 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.

By this memorandum, the Applicant requests the Board for an order/orders that:
1.
2.

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

64
 3. LETTER OF AWARD

[Form head paper of the Procuring Entity]

.......................................................................[date]

To:...................................................................[name and address of the Service Provider]

This is to notify you that your Tender dated [date] for execution of the[name of the Contract and
identification number, as given in the Special Conditions of Contract] for the Contract Price of the
equivalent of [amount in numbers and words] [name of currency], as corrected and modified in
accordance with the Instructions to Tenderers is hereby accepted by us (Procuring Entity).

You are requested to furnish the Performance Security within 28days in accordance with the
Conditions of Contract, using, for that purpose, one of the Performance Security Forms included in
Section VIII, Contract Forms, of the tender document.

Please return the attached Contract dully signed

AuthorizedSignature:......................................................................................

Name and Title of Signatory:............................................................................

Name of Agency:..............................................................................................

Attachment: Contract

65
FORM OF CONTRACT [Form head paper of the Procuring Entity]

LUMP SUM REMUNERATION

This CONTRACT(herein after called the “Contract”) is made the [day] day of the month
of[month],[year], between, on the one hand,[name of Procuring Entity](herein after called the
“Procuring Entity”) and, on the other hand, [name of Service Provider](hereinafter called the“ Service
Provider”).

[Note: In the text below text in brackets is optional; all notes should be deleted in final text. If the
Service Provider consist of more than one entity, the above should be partially amended to read as
follows:“…(herein after called the “Procuring Entity”) and, on the other hand, a joint venture consisting
of the following entities, each of which will be jointly and severally liable to the Procuring Entity for
all the Service Provider's obligations under this Contract, namely, [name of Service Provider]and[name
of Service Provider](herein after called the “Service Provider”).]

WHEREAS

a) The Procuring Entity has requested the Service Provider to provide certain Services as
defined in the General Conditions of Contract attached to this Contract (herein after called the
“Services”);
b) the Service Provider, having represented to the Procuring Entity that they have the required
professional skills, and personnel and technical resources, have agreed to provide the Services
on the terms and conditions set forth in this Contract at a contract price of……………………;

NOW THEREFORE the parties hereto hereby agree as follows:

1. The following documents shall be deemed to form and be read and construed as part of this
Agreement, and the priority of the documents shall be as follows:
a) The Form of Acceptance;
b) The Service Provider's Tender
c) The Special Conditions of Contract;
d) The General Conditions of Contract;
e) The Specifications;
f) The Priced Activity Schedule; and
g) The following Appendices: [Note: If any of these Appendices are not used, the words
“Not Used” should be inserted below next to the title of the Appendix and on the sheet
attached hereto carrying the title of that Appendix.]

Appendix A: Description of the Services

Appendix B: Schedule of Payments
Appendix C: Subcontractors
Appendix D: Breakdown of Contract Price
Appendix E: Services and Facilities Provided by the Procuring Entity

2. The mutual rights and obligations of the Procuring Entity and the Service Provider shall be as
set forth in the Contract, in particular:
a) The Service Provider shall carry out the Services in accordance with the provisions of
the Contract; and
b) The Procuring Entity shall make payments to the Service Provider in accordance
with the provisions of the Contract.

66
INWITNESSWHERE OF, the Parties here to have caused this Contract to be signed in their respective
names as of the day and year first above written.

For and on behalf of [name of Procuring Entity]

[Authorized Representative]
For and on behalf of [name of Service Provider]

[Authorized Representative]

[Note :If the Service Provider consists of more than one entity, all these entities should appear as
signatories, e.g., in the following manner:]

For and on behalf of each of the Members of the Service Provider

..............................................................................[name of member]

..............................................................................[Authorized Representative]

.............................................................................. [name of member]

..............................................................................[Authorized Representative]

67
PART II – PROCURINGENTITY'S REQUIREMENTS

68
SECTION - SCHEDULE OF REQUIREMENTS
5.1 STANDARDS

5.1.1 SEVICES
ACFC intends to contract a professional firm to provide casual labour services. The workforce Shall be
requested by ACFC as and when required and to the extent of need basis as specified in the Description
of Services..
5.1.2 SCHEDULE OF WORK
To be provided at the start of each specific requirement as required.
5.1.3 EQUIPMENT AND CLEANING MATERIAL
The Contractor will be expected to use own equipment in providing the services in quantities and of
quality to ensure efficient and uninterrupted performance of duty.
5.1.4 STAFF
For the purpose of smooth operations and harmonious co-existence, procuring entity will be required
to ensure priority in employment to the extent of 80% (eighty percent) of the available jobs at any time
is given to the locals.
5.1.5 UNIFORM AND BADGES
The Contractor will provide the staff with uniform and identification badges which they will be required
to put on all the times when they are working for ACFC.
5.1.6 TERMS AND CONDITIONS OF EMPLOYMENT
The Contractor shall be required to strictly adhere and comply with all Labour Laws and the minimum
wage guidelines during the entire period of the contract as provided for in the Employment Act No.1 of
2007 and the Regulation of Wages (General) (Amendment) Order, 2022.
Failure to meet this requirement during the contract period will be a ground for cancellation of the
contract.
5.1.7 GENERAL
Age of employees
Aged between 21 and 55 years
Vetting
The successful contractor should have thorough knowledge of employees’ background and must
provide certificate of good conduct before engagement
Adequate Personnel
The contractor should have adequate reserve employees for replacement on unsatisfactory performance,
sickness, absence or any other reason.
MANDATORY REQUIREMENTS FOR BIDDING
i. Certificate of Incorporation/Registration
ii. Must provide a Copy of Valid Tax Compliance Certificate
iii. Provide copy of valid form CR12 / Partnership Deed / National ID Card
iv. Valid NSSF & NHIF compliance certificates
v. Valid Work Injury Benefit (WIBA) Policy/Group Personal Accident (GPA) policy
vi. Valid copy of Contractual Liability Insurance Policy cover

69
 vii. Certificate of registration with AGPO from the National treasury for those registered as
disadvantaged groups (youth, women and people with disabilities) if registered as one.
viii. Must submit duly filled up Confidential Business Questionnaire in the format provided
ix. Must fill & submit the certificate of independent tender determination in the format provided.
x. Must fill & submit a self-declaration that the tenderer is not debarred from participating in
public procurement in the format provided.
xi. Must fill & submit a self-declaration that the tenderer will not engage in corruption or
fraudulent practice in the format provided.
xii. Must fill & submit Declaration and Commitment to the code of ethics in the format provided.
xiii. Must fill & submit the Tender-Securing Declaration Form in the format provided.
xiv. Must provide evidence of contractual liability cover/fidelity guarantee
xv. Must provide a written undertaking to comply with Labour Laws and wage guidelines

5.2 DESCRIPTION OF SERVICES

A. SCOPE

i. Loading and offloading of goods

ii. Plumbing jobs
iii. Carpentry
iv. Painting
v. Masonry
vi. Packing Yeast
vii. Cleaning
viii. Messengerial Services
ix. Turnboys
x. Drivers
xi. Laboratory Analysts
xii. Process Operators
xiii. Helpers
xiv. Technicians
xv. Artisans
xvi. Guest House Attendants
xvii. Clerks
Any other manual job that may be advised from time to time.
These jobs will qualifications as listed below:
1. Unskilled labour (Gardeners, cleaners, loaders, General manual jobs)
2. Semi-skilled (Messengers, turnboys, Production helpers, Guest house attendants)
3. Skilled-Craft holders (Painter, Plumber, carpenter, mason, welder, Driver, weighbridge
operators)
4. Skilled Diploma and above holders or equivalent (Lab analyst, Process operator, clerk,
Technician, electrician, instrumentation technician, mechanical Artisan, Refrigeration
technicians)

B. QUALIFICATION AND EXPERIENCE

Qualification and experience of key personnel proposed for administration and execution of the
contract. Attach certificates and CV’s.

70
PART III – CONDITIONS OF CONTRACT AND
CONTRACT FORMS

71
SECTION VI - GENERAL CONDITIONS OF CONTRACT

A. General Provisions Definitions

Unless the context otherwise requires, the following terms whenever used in this Contract have the
following meanings:

a) The Adjudicator is the person appointed jointly by the Procuring Entity and the Service
Provider to resolve disputes in the first instance, as provided for in Sub-Clause8.2 hereunder.

b) “Activity Schedule” is the priced and completed list of items of Services to be performed by
the Service Provider forming part of his Tender;

c) “Completion Date” means the date of completion of the Services by the Service Provider as
certified by the Procuring Entity

d) “Contract” means the Contract signed by the Parties, to which these General Conditions of
Contract (GCC) are attached, together with all the documents listed in Clause 1 of such signed
Contract;

e) “Contract Price” means the price to be paid for the performance of the Services, in accordance
with Clause 6;

f) “Day works” means varied work inputs subject to payment on a time basis for the Service
Provider's employees and equipment, in addition to payments for associated materials and
administration.

g) “Procuring Entity” means the Procuring Entity or party who employs the Service Provider

h) “Foreign Currency” means any currency other than the currency of Kenya;

i) “GCC” means these General Conditions of Contract;

j) “Government ”means the Government of Kenya;

k) “Local Currency ”means Kenya shilling;

l) “Member,” in case the Service Provider consist of a joint venture of more than one entity, means
any of these entities; “Members” means all these entities, and “Member in Charge” means the
entity specified in the SC to act on their behalf in exercising all the Service Provider' rights and
obligations towards the Procuring Entity under this Contract;

m) “Party” means the Procuring Entity or the Service Provider, as the case maybe, and “Parties”
means both of them;

n) “Personnel” means persons hired by the Service Provider or by any Subcontractor as employees
and assigned to the performance of the Services or any part there of;

o) “Service Provider” is a person or corporate body whose Tender to provide the Services has
been accepted by the Procuring Entity;

p) “Service Provider's Tender” means the completed Tendering Document submitted by the
Service Provider to the Procuring Entity

q) “SCC” means the Special Conditions of Contract by which the GCC may be amended or
supplemented;

r) “Specifications” means the specifications of the service included in the Tendering Document

72
 submitted by the Service Provider to the Procuring Entity

s) “Services” means the work to be performed by the Service Provider pursuant to this Contract,
as described in Appendix A; and in the Specifications and Schedule of Activities included in
the Service Provider's Tender.

t) “Subcontractor” means any entity to which the Service Provider subcontracts any part of the
Services in accordance with the provisions of Sub-Clauses3.5and4;

u) “Public Procurement Regulatory Authority (PPRA)” shall mean the Government Agency
responsible for oversight of public procurement.

v) “Project Manager” shall the person appointed by the Procuring Entity to act as the Project
Manager for the purposes of the Contract and named in the Particular Conditions of Contract,
or other person appointed from time to time by the Procuring Entity and notified to the
Contractor.

w) “Notice of Dissatisfaction” means the notice given by either Party to the other indicating its
dissatisfaction and intention to commence arbitration.

1.2 Applicable Law

The Contract shall be interpreted in accordance with the laws of Kenya.

1.3 Language

This Contract has been executed in the English language, which shall be the binding and
controlling language for all matters relating to the meaning or interpretation of this Contract.

1.4 Notices

Any notice, request, or consent made pursuant to this Contract shall be in writing and shall be
deemed to have been made when delivered in person to an authorized representative of the Party
to whom the communication is addressed, or when sent by registered mail, hand delivery, or
email to such Party at the address specified in the SCC.

1.5 Location

The Services shall be performed at such locations as a respecified in Appendix A, in the

specifications and, where the location of a particular task is not so specified, at such locations,
whether in Kenya or elsewhere, as the Procuring Entity may approve.

1.6 Authorized Representatives

Any action required or permitted to be taken, and any document required or permitted to be
executed, under this Contract by the Procuring Entity or the Service Provider may be taken or
executed by the officials specified in the SCC.

1.7 Inspection and Audit by the PPRA

Pursuant to paragraph 2.2 e. of Attachment 1 to the General Conditions, the Service Provider
shall permit and shall cause its sub contract or sand sub-consultants to permit, PPRA and/or
persons appointed by PPRA to inspect the Site and/or the accounts and records relating to the
procurement process, selection and/or contract execution, and to have such accounts and records
audited by auditors appointed by PPRA. The Service Provider's and its Subcontractors' and sub-
consultants' attention is drawn to Sub-Clause 3.10 which provides, inter alia, that acts intended
to materially impede the exercise of PPRA's inspection and audit rights constitute a prohibited

73
 practice subject to contract termination (as well as to a determination of ineligibility pursuant
to PPRA's prevailing sanctions procedures).

1.8 Taxes and Duties

The Service Provider, Subcontractors, and their Personnel shall pay such taxes, duties, fees, and
other impositions as may be levied under the Applicable Law, the amount of which is deemed
to have been included in the Contract Price.

2. Commencement, Completion, Modification, and Termination of Contract

2.1 Effectiveness of Contract

This Contract shall come into effect on the date the Contract is signed by both parties or such
other later date as maybe stated in the SCC.

2.2 Commencement of Services

2.2.1 Program

Before commencement of the Services, the Service Provider shall submit to the Procuring Entity
for approval a Program showing the general methods, arrangements order and timing for all
activities. The Services shall be carried out in accordance with the approved Program as
updated.

2.2.2 Starting Date

The Service Provider shall start carrying out the Services thirty (30) days after the date the
Contract becomes effective, or at such other date as may be specified in the SCC.

2.3 Intended Completion Date

Unless terminated earlier pursuant to Sub-Clause 2.6, the Service Provider shall complete the
activities by the Intended Completion Date, as is specified in the SCC. If the Service Provider
does not complete the activities by the Intended Completion Date, it shall be liable to pay
liquidated damage as per Sub-Clause3.8.Inthiscase,the Completion Date will be the date of
completion of all activities.

2.4 Modification

Modification of the terms and conditions of this Contract, including any modification of the
scope of the Services or of the Contract Price, may only be made by written agreement between
the Parties.

2.4.1 Value Engineering

The Service Provider may prepare, at its own cost, a value engineering proposal at any time
during the performance of the contract. The value engineering proposal shall, at a minimum,
include the following;

a) The proposed change(s), and a description of the difference to the existing contract
requirements;

b) A full cost/benefit analysis of the proposed change(s) including a description and estimate
of costs (including life cycle costs, if applicable) the Procuring Entity may incur in
implementing the value engineering proposal; and

74
 c) A description of any effect(s)of the change on performance/functionality.

The Procuring Entity may accept the value engineering proposal if the proposal demonstrates
benefits that:

a) accelerates the delivery period; or

b) reduces the Contract Price or the lifecycle costs to the Procuring Entity; or

c) improves the quality, efficiency, safety or sustainability of the services; or

d) yields any other benefits to the Procuring Entity, without compromising the
necessary functions of the Facilities.

If the value engineering proposal is approved by the Procuring Entity and results in:

a) a reduction of the Contract Price; the amount to be paid to the Service Provider shall
be the percentage specified in the SCC of the reduction in the Contract Price; or

b) an increase in the Contract Price; but results in a reduction in lifecycle costs due to any
benefit described in (a) to (d)above, the amount to be paid to the Service Provider shall
be the full increase in the Contract Price.

2.5 Force Majeure

2.5.1 Definition

For the purposes of this Contract, “Force Majeure” means an event which is beyond the
reasonable control of a Party and which makes a Party's performance of its obligations under
the Contract impossible or so impractical as to be considered impossible under the
circumstances.

2.5.2 No Breach of Contract

The failure of a Party to fulfill any of its obligations under the contract shall not be considered
to be a breach of, or default under, this Contract insofar as such inability arises from an event
of Force Majeure, provided that the Party affected by such an event (a) has taken all reasonable
precautions, due care and reasonable alternative measures in order to carry out the terms and
conditions of this Contract, and(b) has informed the other Party as soon as possible about the
occurrence of such an event.

2.5.3 Extension of Time

Any period with in which a Party shall, pursuant to this Contract, complete any action or task,
shall be extended for a period equal to the time during which such Party was unable to perform
such action as a result of Force Majeure.

2.5.4 Payments

During the period of their inability to perform the Services as a result of an event of Force
Majeure, the Service Provider shall be entitled to continue to be paid under the terms of this
Contract, as well as to be reimbursed for additional costs reasonably and necessarily incurred
by them during such period for the purposes of the Services and in reactivating the Service after
the end of such period.

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 2.6 Termination

2.6.1 By the Procuring Entity

The Procuring Entity may terminate this Contract, by not less than thirty(30) days' written notice
of termination to the Service Provider, to be given after the occurrence of any of the events
specified in paragraphs(a)through (d) of this Sub-Clause 2.6.1:

a) If the Service Provider does not remedy a failure in the performance of its obligations
under the Contract, within thirty (30) days after being notified or within any further
period as the Procuring Entity may have subsequently approved in writing;

b) if the Service Provider become insolvent or bankrupt;

c) if, as the result of Force Majeure, the Service Provider is unable to perform a material
portion of the Services for a period of not less than sixty (60) days; or

d) if the Service Provider, in the judgment of the Procuring Entity has engaged in Fraud
and Corruption, as defined in paragraph2.2a. of Attachment1 to the GCC, in competing
for or in executing the Contract

2.6.2 By the Service Provider

The Service Provider may terminate this Contract, by not less than thirty (30) days' written
notice to the Procuring Entity, such notice to be given after the occurrence of any of the events
specified in paragraphs (a) and (b) of this Sub-Clause 2.6.2:

a) If the Procuring Entity fails to pay any monies due to the Service Provider pursuant to this
Contract and not subject to dispute pursuant to Clause 7 within forty-five (45) days after
receiving written notice from the Service Provider that such payment is overdue; or

b) if, as the result of Force Majeure, the Service Provider is unable to perform a material
portion of the Services for a period of not less than sixty (60) days.

2.6.3 Payment up on Termination

Upon termination of this Contract pursuant to Sub-Clauses 2.6.1 or 2.6.2, the Procuring Entity
shall make the following payments to the Service Provider:

a) remuneration pursuant to Clause 6 for Services satisfactorily performed prior to the

effective date of termination;

b) except in the case of termination pursuant to paragraphs (a), (b), (d) of Sub-Clause 2.6.1,
reimbursement of any reasonable cost incident to the prompt and orderly termination of the
Contract, including the cost of the return travel of the Personnel.

3 Obligations of the Service Provider

3.1 General

The Service Provider shall perform the Services in accordance with the Specifications and the
Activity Schedule, and carry out its obligations with all due diligence, efficiency, and economy,
in accordance with generally accepted professional techniques and practices, and shall observe
sound management practices, and employ appropriate advanced technology and safe methods.
The Service Provider shall always act, in respect of any matter relating to this Contractor to the
Services, as faithful adviser to the Procuring Entity, and shall at all times support and safeguard
the Procuring Entity's legitimate interests in any dealings with Subcontractors or third parties.

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3.2 Conflict of Interests

3.2.1 Service Provider Not to Benefit from Commissions and Discounts.

The remuneration of the Service Provider pursuant to Clause 6 shall constitute the Service
Provider's sole remuneration in connection with this Contract or the Services, and the Service
Provider shall not accept for their own benefit any trade commission, discount, or similar
payment in connection with activities pursuant to this Contractor to the Services or in the
discharge of their obligations under the Contract, and the Service Provider shall use their best
efforts to ensure that the Personnel, any Subcontractors, and agents of either of them similarly
shall not receive any such additional remuneration.

3.2.2 Service Provider and Affiliates Not to be Otherwise Interested in Project

The Service Provider agree that, during the term of this Contract and after its termination, the
Service Provider and its affiliates, as well as any Subcontractor and any of its affiliates, shall
bed is qualified from providing goods, works, or Services(other than the Services and any
continuation thereof) for any project resulting from or closely related to the Services.

3.2.3 Prohibition of Conflicting Activities

Neither the Service Provider nor its Subcontractors nor the Personnel shall engage, either
directly or indirectly, in any of the following activities:

a) During the term of this Contract, any business or professional activities in Kenya which
would conflict with the activities assigned to them under this Contract;

b) during the term of this Contract, neither the Service Provider nor their Subcontractors
shall hire public employees’ inactive duty or on any type of leave, to perform any
activity under this Contract;

c) After the termination of this Contract, such other activities as may be specified in the
SCC.

3.3 Confidentiality

The Service Provider, its Subcontractors, and the Personnel of either of them shall not, either
during the term or within two (2) years after the expiration of this Contract, disclose any
proprietary or confidential information relating to the Project, the Services, this Contract, or the
Procuring Entity's business or operations without the prior written consent of the Procuring
Entity.

3.4 The Service Provider (a) shall take out and maintain, and shall cause any Subcontractors to
take out and maintain, at its (or the Sub contractors', as the case may be)own cost but on terms
and conditions approved by the Procuring Entity, insurance against the risks, and for the
coverage, as shall be specified in the SCC; and (b) at the Procuring Entity's request, shall
provide evidence to the Procuring Entity showing that such insurance has been taken out and
maintained and that the current premiums have been paid.

3.5 Service Provider's Actions Requiring Procuring Entity's Prior Approval

The Service Provider shall obtain the Procuring Entity's prior approval in writing before taking
any of the following actions:

a) Entering into a subcontract for the performance of any part of the Services,

b) appointing such members of the Personnel not listed by name in Appendix C (“Key

77
 Personnel and Subcontractors”),

c) changing the Program of activities; and

d) Any other action that may be specified in the SCC.

3.6 Reporting Obligations

The Service Provider shall submit to the Procuring Entity the reports and documents specified
in Appendix B in the form, in the numbers, and within the periods set forth in the said Appendix.

3.7 Documents Prepared by the Service Provider to Be the Property of the Procuring Entity

All plans, drawings, specifications, designs, reports, and other documents and software
submitted by the Service Provider in accordance with Sub-Clause 3.6 shall become and remain
the property of the Procuring Entity, and the Service Provider shall, not later than upon
termination or expiration of this Contract, deliver all such documents and software to the
Procuring Entity, together with a detailed inventory thereof. The Service Provider may retain a
copy of such documents and software. Restrictions about the future use of these documents, if
any, shall be specified in the SCC.

3.8 Liquidated Damages

3.8.1 Payments of Liquidated Damages

The Service Provider shall pay liquidated damages to the Procuring Entity at the rate per day
stated in the SCC for each day that the Completion Date is later than the Intended Completion
Date. The total amount of liquidated damages shall not exceed the amount defined in the SCC.
The Procuring Entity may deduct liquidated damages from payments due to the Service
Provider. Payment of liquidated damages shall not affect the Service Provider's liabilities.

3.8.2 Correction for Over-payment

If the Intended Completion Date is extended after liquidated damages have been paid, the
Procuring Entity shall correct any overpayment of liquidated damages by the Service Provider
by adjusting the next payment certificate. The Service Provider shall be paid interest on the
overpayment, calculated from the date of payment to the date of repayment, at the rates specified
in Sub-Clause 6.5.

3.8.3 Lack of performance penalty

If the Service Provider has not corrected a Defect within the time specified in the Procuring
Entity's notice, a penalty for Lack of performance will be paid by the Service Provider. The
amount to be paid will be calculated as a percentage of the cost of having the Defect corrected,
assessed as described in Sub-Clause7.2 and specified in the SCC.

3.9 Performance Security

The Service Provider shall provide the Performance Security to the Procuring Entity no later
than the date specified in the Form of acceptance. The Performance Security shall be issued in
an amount and form and by a bank or surety acceptable to the Procuring Entity, and denominated
in the types and proportions of the currencies in which the Contract Price is payable. The
performance Security shall be valid until a date 28 day from the Completion Date of the Contract
in case of a bank guarantee, and until one year from the Completion Date of the Contract in the
case of a Performance Bond.

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3.10 Fraud and Corruption

The Procuring Entity requires compliance with the Government's Anti-Corruption laws and its
prevailing sanctions. The Procuring Entity requires the Service Provider to disclose any
commissions or fees that may have been paid or are to be paid to agents or any other party with
respect to the tendering process or execution of the Contract. The information disclosed must
include at least the name and address of the agent or other party, the amount and currency, and
the purpose of the commission, gratuity or fee.

3.11 Sustainable Procurement

The Service Provider shall conform to the sustainable procurement contractual provisions, if and
as specified in the SCC.

4 Service Provider's Personnel

4.1 Description of Personnel

The titles, agreed job descriptions, minimum qualifications, and estimated periods of
engagement in the carrying out of the Services of the Service Provider's Key Personnel are
described in Appendix C. The Key Personnel and Subcontractors listed by title as well as by
name in Appendix Care hereby approved by the Procuring Entity.

4.2 Removal and/or Replacement of Personnel

a) Except as the Procuring Entity may otherwise agree, no changes shall be made in the
Key Personnel. If, for any reason beyond the reasonable control of the Service
Provider, it becomes necessary to replace any of the Key Personnel, the Service
Provider shall provide as a replacement a person of equivalent or better qualifications.

b) If the Procuring Entity finds that any of the Personnel have (i) committed serious
misconduct or have been charged with having committed a criminal action, or (ii) have
reasonable cause to be dissatisfied with the performance of any of the Personnel, then
the Service Provider shall, at the Procuring Entity's written request specifying the
grounds thereof, provide as a replacement a person with qualifications and experience
acceptable to the Procuring Entity.

c) The Service Provider shall have no claim for additional costs arising out of or
incidental to any removal and/or replacement of Personnel.

5 Obligations of the Procuring Entity

5.1 Assistance and Exemptions

The Procuring Entity shall use its best efforts to ensure that the Government shall provide the
Service Provider such assistance and exemptions as specified in the SCC.

5.2 Change in the Applicable Law

If, after the date of this Contract, there is any change in the Applicable Law with respect to taxes
and duties which increases or decreases the cost of the Services rendered by the Service
Provider, then the remuneration and reimbursable expenses otherwise payable to the Service
Provider under this Contract shall be increased or decreased accordingly by agreement between
the Parties, and corresponding adjustments shall be made to the amounts referred to in Sub-
Clauses 6.2(a) or (b), as the case may be.

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5.3 Services and Facilities

The Procuring Entity shall make available to the Service Provider the Services and Facilities
listed under Appendix F.

6 Payments to the Service Provider

6.1 Lump-Sum Remuneration

The Service Provider's remuneration shall not exceed the Contract Price and shall be a fixed
lumpsum including all Subcontractors' costs, and all other costs incurred by the Service Provider
in carrying out the Services described in Appendix A. Except as provided in Sub-Clause 5.2, the
Contract Price may only be increased above the amounts stated in Sub-Clause 6.2 if the Parties
have agreed to additional payments in accordance with Sub- Clauses2.4and6.3.

6.2 Contract Price

a) The price payable is set forth in the SCC.

b) Price may be payable in foreign currency, if so allowed in this document.

6.3 PaymentforAdditionalServices,andPerformanceIncentiveCompensation

6.3.1 For the purpose of determining the remuneration due for additional Services as may be agreed
under Sub-Clause 2.4, a breakdown of the lump-sum price is provided in Appendices D and E.

6.3.2 If the SCC so specify, the service provider shall be paid performance incentive compensation
asset out in the Performance Incentive Compensation appendix.

6.3.3 Where the contract price is different from the corrected tender price, in order to ensure the
contractor is not paid less or more relative to the contract price (which would be the tender price),
payment valuation certificates and variation orders on omissions and additions valued based on
rates in the schedule of rates in the Tender, will be adjusted by a plus or minus percentage. The
percentage already worked out during tender evaluation is worked out as follows:(corrected
tender price–tender price)/tender price X100.

6.4 Terms and Conditions of Payment

Payments will be made to the Service Provider according to the payment schedule stated in the
SCC. Unless otherwise stated in the SCC, the advance payment (Advance for Mobilization,
Materials and Supplies) shall be made against the provision by the Service Provider of a bank
guarantee for the same amount, and shall be valid for the period stated in the SCC. Any other
payment shall be made after the conditions listed in the SCC for such payment have been met,
and the Service Provider have submitted an invoice to the Procuring Entity specifying the
amount due.

6.5 Interest on Delayed Payments

If the Procuring Entity has delayed payments beyond thirty (30) days after the due date stated in
the SCC, interest shall be paid to the Service Provider foreach day of delay at the rate stated in
the SCC.

6.6 Price Adjustment

6.6.1 Prices shall be adjusted for fluctuations in the cost of inputs only if provided for in the SCC. If
so provided, the amounts certified in each payment certificate, after deducting for Advance

80
 Payment, shall be adjusted by applying the respective price adjustment fact or to the payment
amounts due in each currency. A separate formula of the type indicated below applies to each
Contract currency:

Pc = Ac + Bc Lmc / Loc + Cc Imc / Ioc

Where:

Pc is the adjustment factor for the portion of the Contract Price payable in a specific currency
“c”.

Ac, Bc and Cc are coefficients specified in the SCC, representing: Ac the non-adjustable
portion; Bc the adjustable portion relative to labor costs and Cc the adjustable portion for other
inputs, of the Contract Price payable in that specific currency “c”; and

Lmc is the index prevailing at the first day of the month of the corresponding invoiced ate and
Loc is the index prevailing28 days before Tender opening for labor; both in the specific currency
“c”.

Imc is the index prevailing at the first day of the month of the corresponding invoice date and
Ioc is the index prevailing 28 days before Tender opening for other inputs payable; both in the
specific currency “c”.

If a price adjustment factor is applied to payments made in a currency other than the currency
of the source of the index for a particular indexed input, a correction factor Zo/Zn will be applied
to the respective component factor of pn for the formula of the relevant currency. Zo is the
number of units of Kenya Shillings of the index, equivalent to one unit of the currency payment
on the date of the base index, and Zn is the corresponding number of such currency units on the
date of the current index.

6.6.2 If the value of the index is changed after it has been used in a calculation, the calculation shall
be corrected and an adjustment made in the next payment certificate. The index value shall be
deemed to take account to fall changes in cost due to fluctuations in costs.

6.7 Day works

6.7.1 If applicable, the Day work rates in the Service Provider's Tender shall be used for small
additional amounts of Services only when the Procuring Entity has given written instructions in
advance for additional services to be paid in that way.

6.7.2 All work to be paid for as Day works shall be recorded by the Service Provider on forms
approved by the Procuring Entity. Each completed form shall be verified and signed by the
Procuring Entity representative as indicated in Sub-Clause1.6 within two days of the Services
being performed.

6.7.3 The Service Provider shall be paid for Day works subject to obtaining signed Day works forms
as indicated in Sub-Clause6.7.2

7 Quality Control

7.1 Identifying Defects

The principle and modalities of Inspection of the Services by the Procuring Entity shall be as
indicated in the SCC. The Procuring Entity shall check the Service Provider's performance and
notify him of any Defects that are found. Such checking shall not affect the Service Provider's
responsibilities. The Procuring Entity may instruct the Service Provider to search for a Defect

81
 and to uncover and test any service that the Procuring Entity considers may have a Defect. Defect
Liability Period is as defined in the SCC.

Correction of Defects, and Lack of Performance Penalty

a) The Procuring Entity shall give notice to the Service Provider of any Defects before the
end of the Contract. The Defects liability period shall be extended for as long as Defects
remain to be corrected.

b) Every time notice a Defect is given, the Service Provider shall correct the notified Defect
within the length of time specified by the Procuring Entity's notice.

c) If the Service Provider has not corrected a Defect within the time specified in the Procuring
Entity's notice, the Procuring Entity will assess the cost of having the Defect corrected, the
Service Provider will pay this amount and a Penalty for Lack of Performance calculated
as described in Sub-Clause 3.8.

8 Settlement of Disputes

8.1 Contractor's Claims

8.1.1 If the Contractor considers himself to be entitled to any extension of the Time for Completion
and/or any additional payment, under any Clause of these Conditions or otherwise in connection
with the Contract, the Contractor shall give notice to the Project Manager, describing the event
or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and
not later than 28 days after the Contractor became aware, or should have become aware, of the
event or circumstance.

8.1.2 If the Contractor fails to give notice of a claim within such period of 28days, the Time for
Completion shall not be extended, the Contractor shall not be entitled to additional payment,
and the Procuring Entity shall be discharged from all liability in connection with the claim.
Otherwise, the following provisions of this Sub- Clauses hall apply.

8.1.3 The Contractor shall also submit any other notices which are required by the Contract, and
supporting particulars for the claim, all s relevant to such event or circumstance.

8.1.4 The Contractor shall keep such contemporary records as may be necessary to substantiate any
claim, either on the Site or at another location acceptable to the Project Manager. Without
admitting the Procuring Entity's liability, the Project Manager may, after receiving any notice
under this Sub-Clause, monitor the record-keeping and /or instruct the Contractor to keep further
contemporary records. The Contractor shall permit the Project Manager to inspect all these
records, and shall (if instructed) submit copies to the Project Manager.

8.1.5 Within 42 days after the Contractor became aware (or should have become aware) of the event
or circumstance giving rise to the claim, or within such other period as may be proposed by the
Contractor and approved by the Project Manager, the Contractor shall send to the Project
Manager a fully detailed claim which includes full supporting particulars of the basis of the
claim and of the extension of time and /or additional payment claimed. If the event or
circumstance giving rise to the claim has a continuing effect:

8.1.5.1 This fully detailed claim shall be considered as interim;

a) The Contractor shall send further interim claims at monthly intervals, giving the
accumulated delay and /or amount claimed, and such further particulars as the Project
Manager may reasonably require; and

82
 b) The Contractor shall send a final claim within 28 days after the end of the effects resulting
from the event or circumstance, or within such other period as may be proposed by the
Contractor and approved by the Project Manager.

8.1.6 Within 42 days after receiving a claim or any further particulars supporting a previous claim,
or within such other period as may be proposed by the Project Manager and approved by the
Contractor, the Project Manager shall respond with approval, or with disapproval and detailed
comments. He may also request any necessary further particulars, but shall nevertheless give
his response on the principles of the claim within the above defined time period.

8.1.7 Within the above defined period of 42 days, the Project Manager shall proceed in accordance
with Sub-Clause 3.5[Determinations] to agree or determine (i) the extension (if any) of the
Time for Completion (before or after its expiry) in accordance with Sub-Clause 8.4 [Extension
of Time for Completion], and/or (ii) the additional payment (if any) to which the Contractor is
entitled under the Contract.

8.1.8 Each Payment Certificate shall include such additional payment for any claim as has been
reasonably substantiated as due under the relevant provision of the Contract. Unless and until
the particulars supplied are sufficient to substantiate the whole of the claim, the Contractor shall
only been titled to payment for such part of the claim as he has be enable to substantiate.

8.1.9 If the Project Manager does not respond within the time framed fined in this Clause, either Party
may consider that the claim is rejected by the Project Manager and any of the Parties may refer
to Arbitration in accordance withSub-Clause8.2 [Matters that may be referred to arbitration].

8.1.10 The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which
may apply to a claim. If the Contract or fails to comply with this or another Sub-Clause in
relation to any claim, any extension of time and/or additional payment shall take account of the
extent (if any) to which the failure has prevented or prejudiced proper investigation of the
claim, unless the claim is excluded under the second paragraph of this Sub- Clause.

8.2 Matters that may be referred to arbitration

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

a) The appointment of a replacement Project Manager upon the said person ceasing to act.
b) Whether or not the issue of an instruction by the Project Manager is empowered by
these Conditions
c) Whether or not a certificate has been improperly withheld or is not in accordance with
these Conditions.
e) Any dispute arising in respect of war risks or war damage.
f) All other matters shall only be referred to arbitration after the completion or alleged
completion of the Services or termination or alleged termination of the Contract, unless
the Procuring Entity and the Contractor agree otherwise in writing.

8.3 Amicable Settlement

8.3.1 Where a Notice of Dis satisfaction has been given, both Parties shall attempt to settle the dispute
amicably before the commencement of arbitration. However, unless both Parties agree
otherwise, the Party giving a Notice of Dissatisfaction in accordance with Sub-Clause 8.1 above
should move to commence arbitration after the fifty-sixth day from the day on which a Notice
of Dissatisfaction was given, even if no attempt at an amicable settlement has been made.

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8.4 Arbitration

8.4.1 Any claim or dispute between the Parties arising out of or in connection with the Contract not
settled amicably in accordance with Sub-Clause 8.3 shall be finally settled by arbitration.
Arbitration shall be conducted in accordance with the Arbitration Laws of Kenya.

8.4.2 The arbitrators shall have full power to open up, review and revise any certificate, determination,
instruction, opinion or valuation of the Project Manager, relevant to the dispute. Nothing shall
disqualify representatives of the Parties and the Project Manager from being called as a witness
and giving evidence before the arbitrators on any matter whatsoever relevant to the dispute.

8.4.3 Neither Party shall be limited in the proceedings before the arbitrators to the evidence, or to the
reasons for dissatisfaction given in its Notice of Dissatisfaction.

8.4.4 Arbitration may be commenced prior to or after completion of the services. The obligations of
the Parties, and the Project Manager shall not be altered by reason of any arbitration being
conducted during the progress of the services.

8.4.5 The terms of the remuneration of each or all the members of Arbitration shall be mutually agreed
upon by the Parties when agreeing the terms of appointment. Each Party shall be responsible for
paying one-half of this remuneration.

8.5 Arbitration with proceedings

8.5.1 In case of any claim or dispute, such claim or dispute shall be notified in writing by either party
to the other with a request to submit 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, on the request of the applying
party, by the Chairman or Vice Chairman of any of the following professional institutions;

a) Law Society of Kenya or

b) Chartered Institute of Arbitrators (Kenya Branch)

8.5.2 The institution written to first by the aggrieved party shall take precedence over all other
institutions.

8.5.3 The arbitration maybe on the construction of this Contractor on any matter or thing of what so
ever nature arising there under or in connection there with, 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 been titled 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.

8.5.4 Provided that no arbitration proceedings shall be commenced on any claim or dispute where
notice of a claim or dispute 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.

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

8.5.6 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

84
 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.

8.5.7 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.

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

8.6 Failure to Comply with Arbitrator's Decision

8.6.1 In the event that a Party fails to comply with a final and binding Arbitrator's decision, then
the other Party may, without prejudice to any other rights it may have, refer the matter to a
competent court of law.

9.1 The Adjudicator

9.1.1 Should the Adjudicator resign or die, or should the Procuring Entity and the Service Provider
agree that the Adjudicator is not functioning in accordance with the provisions of the Contract;
a new Adjudicator will be jointly appointed by the Procuring Entity and the Service Provider.
In case of disagreement between the Procuring Entity and the Service Provider, within 30days,
the Adjudicator shall be designated by the Appointing Authority designated in the SCC at the
request of either party, within 14 days of receipt of such request.

9.2 The Adjudicator shall be paid by the hour at the rate specified in the TDS and SCC, together
with reimbursable expenses of the type’s specified in the SCC, and the cost shall be divided
equally between the Procuring Entity and the Service Provider, whatever decision is reached by
the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within28
days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within
the above 28 days, the Adjudicator's decision will be final and binding.

85
B. SPECIAL CONDITIONS OF CONTRACT

SECTION VII - SPECIAL CONDITIONS OF CONTRACT

Number of GC Amendments of, and Supplements to, Clauses in the General Conditions
Clause of Contract

1.1(d) The contract name is Provision of Casual Labour Services

1.1(g) The Procuring Entity is Agro Chemical and Food Company Limited

2.1 The date on which this Contract shall come into effect is July 1, 2023.

2.2.2 The Starting Date for the commencement of Services is July 1, 2023.

2.3 The Intended Completion Date is June 30, 2024.

6.2(a) The amount in Kenya Shillings ____________________.

Payment shall be made within thirty (30) days of receipt of the invoice and
6.5
the relevant documents specified in Sub-Clause 6.4.

others (specify)

86
C. APPENDICES
Appendix A - Description of the Services
Give detailed descriptions of the Services to be provided, dates for completion of various tasks,
place of performance for different tasks, specific tasks to be approved by Procuring Entity, etc.
Appendix B - Schedule of Payments and Reporting Requirements
List all milestones for payments and list the format, frequency, and contents of reports or
products to be delivered; persons to receive them; dates of submission; etc. If no reports are to
be submitted, state here “Not applicable.”
Appendix C - Breakdown of Contract Price
List here the elements of cost used to arrive at the breakdown of the lump-sum price:
1. Rates for Equipment Usage or Rental or for Personnel (Key Personnel and other
Personnel).
2. Reimbursable expenditures.
This appendix will exclusively be used for determining remuneration for additional Services.
Appendix D - Services and Facilities Provided by the Procuring Entity
1. ACFC dispensary premises.

87
 D. FORMS

SECTION VIII -CONTRACT FORMS

FORM NO. 1 - PERFORMANCE SECURITY – (Unconditional Demand Bank Guarantee)

[Guarantor letterhead or SWIFT identifier code]

Beneficiary: [insert name and Address of Procuring Entity]

Date: [Insert date of issue]

PERFORMANCE GUARANTEE No.:

Guarantor:........................................... [Insert name and address of place of issue, unless indicated

in the letterhead]

1. We have been informed that (hereinafter called "the Applicant") has

entered into Contract No. dated with the Beneficiary, for the execution of
(herein after called "the Contract").

2. Furthermore, we understand that, according to the conditions of the Contract, a performance

guarantee is required.

3. At the request of the Applicant, we as Guarantor, hereby irrevocably under take to pay the
Beneficiary any sum or sums not exceeding in total an amount of (),1 such sum being
payable in the types and proportions of currencies in which the Contract Price is payable, upon
receipt by us of the Beneficiary's complying demand supported by the Beneficiary's statement,
whether in the demand itself or in a separate signed document accompanying or identifying the
demand, stating that the Applicant is in breach of its obligation(s) under the Contract, without
the Beneficiary needing to prove or to show grounds for your demand or the sum specified
therein.

2
4. This guarantee shall expire, no later than the….Day of……, 2… , and any demand for payment
under it must be received by us at this office indicated above on or before that date.

5. The Guarantor agrees to a one-time extension of this guarantee for a period not to exceed [six
months] [one year], in response to the Beneficiary's written request for such extension, such
request to be presented to the Guarantor before the expiry of the guarantee.

[Name of Authorized Official, signature(s) and seals/stamps]

Note: All italicized text (including footnotes) is for use in preparing this form and shall be deleted
from the final product.

1The Guarantor shall insert an amount representing the percentage of the Accepted Contract Amount specified in the
Letter of Acceptance, less provisional sums, if any, and denominated either in the currency(ies) of the Contract or a
freely convertible currency acceptable to the Beneficiary.
2Insert the date twenty-eight days after the expected completion date as described in GC Clause 11.9. The Procuring
Entity should note that in the event of an extension of this date for completion of the Contract, the Procuring Entity
would need to request an extension of this guarantee from the Guarantor. Such request must be in writing and must be
made prior to the expiration date established in the guarantee. In preparing this guarantee, the Procuring Entity might
consider adding the following text to the form, at the end of the pen ultimate paragraph: “The Guarantor agrees to a
one-time extension of this guarantee for a period not to exceed [six months] [one year], in response to the Beneficiary's
written request for such extension, such request to be presented to the Guarantor before the expiry of the guarantee.

88
FORM NO. 3 - ADVANCE PAYMENT SECURITY [Demand Bank Guarantee]

[Guarantor letter head or SWIFT identifier code] [Guarantor letter head or SWIFT identifier code]

Beneficiary: [Insert name and Address of Procuring Entity]

Date: [Insert date of issue]

ADVANCE PAYMENTGUARANTEE No.: [Insert guarantee reference number]

Guarantor:[Insert name and address of place of issue, unless indicated in the letterhead]

1. We have been informed that (hereinafter called “the Applicant”) has entered into
Contract No. dated with the Beneficiary, for the execution of (herein after
called "the Contract").

2. Furthermore, we understand that, according to the conditions of the Contract, an advance payment
in the sum () is to be made against an advance payment guarantee.

3. At the request of the Applicant, we as Guarantor, hereby irrevocably undertake to pay the
1
Beneficiary any sum or sums not exceeding in total an amount of ________ () upon receipt by us
of the Beneficiary's complying demand supported by the Beneficiary's statement, whether in the
demand itself or in a separate signed document ac companying or identifying the demand, stating
either that the Applicant:

a) Has used the advance payment for purposes other than the costs of mobilization in respect
of the Works; or

b) has failed to repay the advance payment in accordance with the Contract conditions,
specifying the amount which the Applicant has failed to repay.

4. A demand under this guarantee may be presented as from the presentation to the Guarantor of a
certificate from the Beneficiary's bank stating that the advance payment referred to above has been
credited to the Applicant on its account number at _______

5. The maximum amount of this guarantee shall be progressively reduced by the amount of the
advance payment repaid by the Applicant as specified in copies of interim statements or payment
certificates which shall be presented to us. This guarantee shall expire, at the latest, upon our receipt
of a copy of the interim payment certificate indicating that ninety (90)percent of the Accepted
2
Contract Amount, less provisional sums, has been certified for payment, or on the day of , 2,
whichever is earlier. Consequently, any demand for payment under this guarantee must be received
by us at this office on or before that date.

6. The Guarantor agrees to a one-time extension of this guarantee for a period not to exceed [six
months] [one year], in response to the Beneficiary' s written request for such extension, such request
to be presented to the Guarantor before the expiry of the guarantee.

..............................................................................................................................
[Name of Authorized Official, signature(s) and seals/stamps]

28
Note: All italicized text (including footnotes) is for use in preparing this form and shall be deleted
from the final product.

1
The Guarantor shall insert an amount representing the amount of the advance payment and denominated either in the currency(ies) of the advance
payment as specified in the Contract, or in a freely convertible currency acceptable to the Procuring Entity.

2
Insert the expected expiration date of the Time for Completion. The Procuring Entity should note that in the event of an extension of the time for
completion of the Contract, the Procuring Entity would need to request an extension of this guarantee from the Guarantor. Such request must be
in writing and must be made prior to the expiration date established in the guarantee. In preparing this guarantee, the Procuring Entity might
consider adding the following ext. to the form, at the end of the penultimate paragraph: “The Guarantor agrees to a one-time extension of this
guarantee for a period not to exceed [six months] [one year], in response to the Beneficiary's written request for such extension, such request to
be presented to the Guarantor before the expiry of the guarantee.”
FORM NO. 4 BENEFICIAL OWNERSHIP DISCLOSURE FORM
(Amended and issued pursuant to PPRA CIRCULAR No. 02/2022)

INSTRUCTIONS TO TENDERERS: DELETE THIS BOX ONCE YOU HAVE COMPLETED

THE FORM

This Beneficial Ownership Disclosure Form (“Form”) is to be completed by the successful tenderer
pursuant to Regulation 13 (2A) and 13 (6) of the Companies (Beneficial Ownership Information)
Regulations, 2020. In case of joint venture, the tenderer must submit a separate Form for each member.
The beneficial ownership information to be submitted in this Form shall be current as of the date of its
submission.

For the purposes of this Form, a Beneficial Owner of a Tenderer is any natural person who
ultimately owns or controls the legal person (tenderer) or arrangements or a natural person on
whose behalf a transaction is conducted, and includes those persons who exercise ultimate effective
control over a legal person (Tenderer) or arrangement.

Tender Reference No.: [insert identification No]

Name of the Tender Title/Description: [insert name of the assignment]

To: [insert complete name of Procuring Entity]

In response to the requirement in your notification of award dated [insert date of notification of
award] to furnish additional information on beneficial ownership: [select one option as applicable
and delete the options that are not applicable]

I) We here by provide the following beneficial ownership information.

Details of beneficial ownership

Details of all Beneficial % of shares a % of voting Whether a person Whether a
Owners person holds in rights a person directly or indirectly person directly
the company holds in the holds a right to or indirectly
Directly or company appoint or remove a exercises
indirectly member of the board significant
of directors of the influence or
company or an control over the
equivalent governing Company
body of the Tenderer (tenderer) (Yes /
(Yes / No) No)
Full Name Directly-----% of Directly….% of 1. Having the right to 1. Exercises
shares voting rights appoint a majority of significant
National identity the board of the influence or
card number or directors or an control over the
1. Passport number Indirectly----% equivalent Company body
Indirectly----% of voting rights governing body of of the Company
Personal
of shares the Tenderer: Yes --- (tenderer)
Identification
--No----
Number (where
2. Is this right held Yes -----No----
applicable)
directly or
Nationality indirectly?: 2. Is this
influence or
Date of birth Direct…………… control
[dd/mm/yyyy] exercised
Postal address Indirect………...
 Details of all Beneficial % of shares a % of voting Whether a person Whether a
Owners person holds in rights a person directly or indirectly person directly
the company holds in the holds a right to or indirectly
Directly or company appoint or remove a exercises
indirectly member of the board significant
of directors of the influence or
company or an control over the
equivalent governing Company
body of the Tenderer (tenderer) (Yes /
(Yes / No) No)
Residential directly or
address indirectly?

Telephone Direct………..
number
Email address Indirect………

Occupation or
profession

2. Full Name Directly------% Directly….% of 1. Having the right to 1. Exercises

of shares voting rights appoint a majority of significant
National identity the board of the influence or
card number or directors or an control over the
Passport number Indirectly----% equivalent Company body
Indirectly----% of voting rights governing body of of the Company
Personal
of shares the Tenderer: Yes --- (tenderer)
Identification
--No---- Yes ----No----
Number (where
2. Is this right held
applicable)
directly or 2. Is this
Nationality(ies) indirectly?: influence or
control
Date of birth Direct…………… exercised
[dd/mm/yyyy] directly or
Postal address Indirect………... indirectly?

Residential Direct…………
address
Telephone Indirect………
number
Email address
Occupation or
profession

3.

etc.

II) Am fully aware that beneficial ownership information above shall be reported to the Public
Procurement Regulatory Authority together with other details in relation to contract awards and
shall be maintained in the Government Portal, published and made publicly available pursuant to
Regulation 13(5) of the Companies (Beneficial Ownership Information) Regulations,
2020.(Notwithstanding this paragraph Personally Identifiable Information in line with the Data
 Protection Act shall not be published or made public). Note that Personally Identifiable Information
(PII) is defined as any information that can be used to distinguish one person from another and
can be used to deanonymize previously anonymous data. This information includes National identity
card number or Passport number, Personal Identification Number, Date of birth, Residential address,
email address and Telephone number.

III) In determining who meets the threshold of who a beneficial owner is, the Tenderer must consider
a natural person who in relation to the company:

(a) holds at least ten percent of the issued shares in the company either directly or indirectly;

(b) exercises at least ten percent of the voting rights in the company either directly or
indirectly;

(c) holds a right, directly or indirectly, to appoint or remove a director of the company; or

(d) exercises significant influence or control, directly or indirectly, over the company.

IV) What is stated to herein above is true to the best of my knowledge, information and belief.

Name of the Tenderer: .......................*[insert complete name of the Tenderer]

Name of the person duly authorized to sign the Tender on behalf of the Tenderer: ** [insert complete name
of person duly authorized to sign the Tender]

Designation of the person signing the Tender: ....................... [insert complete title of the person signing
the Tender]

Signature of the person named above: ....................... [insert signature of person whose name and capacity
are shown above]

Date this ....................... [insert date of signing] day of....................... [Insert month], [insert year]

Bidder Official Stamp