proposed staff residential flats, ablution block, shed and associated ...

SECTION IINVITATION FOR TENDERSTender No. KWS/OT/BF/09/2013-2014TENDER FOR THE PROPOSED STAFF RESIDENTIAL FLATS, ABLUTIONBLOCK, SHED AND ASSOCIATED SERVICES AT LAKE NAKURUNATIONAL PARK1.1 The invitation to bid comprises following documents;Volume 1 of 2- Technical Bid Section I-VIVolume 2 of 2- Financial Bid Section VII-XI1.2 The Director, Kenya Wildlife Service P.O. Box 40241 Nairobi invitessealed tenders for the construction of proposed Staff Residential flats,ablution block & shed at Lake Nakuru National Park1.3 Interested eligible candidates may obtain further information and inspecttender document at Office Head Supplies Chain Management, KenyaWildlife Service headquarters, Langa’ta Road. P.O. Box 40241 Nairobiduring normal working hours.1.4 A complete set of tender documents may be obtained by interestedcandidates upon payment of a non-refundable fee of Ksh. 1,000.00 atthe cash office situated at KWS HQS, payable in cash or bankers chequeto the Director -KWS. The document can also be viewed and downloadedfrom the website http://kws.go.ke. Bidders who download the tenderdocument from the website must forward their particulars immediatelyfor records and any further tender clarifications and addenda and willnot be required to pay any fee.1.5 Prices quoted should be inclusive of all taxes, must be in Kenyashillings and shall remain valid for ( 90 ) days from the closing date oftender. Bid security shall be valid for 120 days1.6 The original and all copies of the Technical bid shall be placed in a sealedenvelope clearly marked “TECHNICAL BID”, and the original and allcopies of the financial bid in a sealed envelope duly marked “FINANCIALBID”. Both envelopes shall be placed in an OUTER ENVELOPE andsealed. This outer envelope shall marked with Tender name andreference number and deposited in the Tender Box at Main ReceptionLobby, ground floor, KWS Headquarters, Langa’ta Road P.O. Box 40241,Nairobi to be received on or before time specified in theletter/advertisement inviting these tenders1.7 Tenders will be opened immediately thereafter in the presence of thecandidates or their representatives who choose to attend3

INSTRUCTIONS TO TENDERERS.1. 1. General/Eligibility/Qualifications/Joint venture/Cost oftendering1.1 The Employer as defined in the Appendix to Conditions of Contractinvites tenders for Works Contract as described in the tenderdocuments. The successful tenderer will be expected to completethe Works by the Intended Completion Date specified in the tenderdocuments.1.2 All tenderers shall provide the Qualification Information, astatement that the tenderer (including all members of a jointventure and subcontractors is not associated, or has not beenassociated in the past, directly or indirectly, with the Consultant orany other entity that has prepared the design, specifications, andother documents for the project or being proposed as ProjectManager for the Contract. A firm that has been engaged by theEmployer to provide consulting services for the preparation orsupervision of the Works, and any of its affiliates, shall not beeligible to tender.1.3 All tenderers shall provide in the Form of Tender and QualificationInformation, a preliminary description of the proposed workmethod and schedule, including drawings and charts, asnecessary.1.4 All tenderers shall include the following information anddocuments with their tenders , unless otherwise stated by (Publicprocurement and disposal (preference and reservations) regulations2011 where applicable.(a)(b)(c)copies of original documents defining the constitution orlegal status, place of registration, and principal place ofbusiness; registration certificate With National ConstructionAuthority as a general building contractor category NCA-5 orabove and valid Tax Compliance certificate written power ofattorney of the signatory of the tender to commit thetenderer:total monetary value of construction work performed for eachof the last five years:experience in works of a similar nature and size for each ofthe last five years, and details of work under way orcontractually committed; and names and addresses of clientswho may be contacted for further information on thesecontracts;5

(d)(e)(f)(g)(h)(i)(j)Major items of construction equipment proposed to carry outthe Contract and an undertaking that they will be availablefor the Contract.Qualifications and experience of key site management andtechnical personnel(project manager and site agent) proposedfor the Contract and an undertaking that they shall beavailable for the Contract.reports on the financial standing of the tenderer, such asprofit and loss statements and auditor’s reports for the pastTwo years; OR bank statement for the last 24 monthsimmediately preceeding tender closing date.evidence of adequacy of working capital for this Contract(access to line(s) of credit and availability of other financialresources);authority to seek references from the tenderer’s bankers;information regarding any litigation, current or during thelast five years, in which the tenderer is involved, the partiesconcerned and disputed amount; andProposals for subcontracting components of the Worksamounting to more than 10 percent of the Contract Price.1.5 Tenders submitted by a joint venture of two or more firms aspartners shall comply with the following requirements, unlessotherwise stated:(a)the tender shall include all the information listed in clause1.5 above for each joint venture partner;(b)(c)(d)the tender shall be signed so as to be legally binding on allpartners;all partners shall be jointly and severally liable for theexecution of the Contract in accordance with the Contractterms;one of the partners will be nominated as being in charge,authorised to incur liabilities, and receive instructions forand on behalf of all partners of the joint venture; and(e)the execution of the entire Contract, including payment, shallbe done exclusively with the partner in charge.1.6 To qualify for award of the Contract, tenderers shall meet thefollowing minimum qualifying criteria;6

1.11 The procuring entity’s employees, committee members, boardmembers and their relative (spouse and children) are not eligible toparticipate in the tender.2. Tender Documents2.1 The complete set of tender documents comprises the documentslisted below and any addenda issued in accordance with Clause2.4. or such other documents that may be issued by the employerto supplement or compliment the listed documents(a)(b)(c)(d)(e)(f)(g)(h)These Instructions to TenderersForm of Tender and Qualification InformationConditions of ContractAppendix to Conditions of ContractSpecificationsDrawingsBills of QuantitiesForms of Securities2.2 The tenderer shall examine all Instructions, Forms to be filled andSpecifications in the tender documents. Failure to furnish allinformation required by the tender documents, or submission of atender not substantially responsive to the tendering documents inevery respect will be at the tenderer’s risk and may result inrejection of his tender.2.3 A prospective tenderer making an inquiry relating to the tenderdocuments may notify the Employer in writing or by cable, telex orfacsimile at the address indicated in the letter/advert of invitationto tender. The Employer will only respond to requests forclarification received earlier than seven days prior to the deadlinefor submission of tenders. Copies of the Employer’s response willbe forwarded to all persons issued with tendering documents,including a description of the inquiry, but without identifying itssource.2.4 Before the deadline for submission of tenders, the Employer maymodify the tendering documents by issuing addenda. Anyaddendum thus issued shall be part of the tendering documentsand shall be communicated in writing or by cable, telex or facsimileto all tenderers. Prospective tenderers shall acknowledge receipt ofeach addendum in writing to the Employer.2.5 To give prospective tenderers reasonable time in which to take anaddendum into account in preparing their tenders, the Employershall extend, as necessary, the deadline for submission of tenders,in accordance with Clause 4.2 here below.8

3.9 Any tender not accompanied by an acceptable Tender Securityshall be rejected. The Tender Security of a joint venture mustdefine as “Tenderer” all joint venture partners and list them in thefollowing manner: a joint venture consistingof”…………”,”…………”,and “…………”.3.10 The Tender Securities of unsuccessful tenderers will be returnedwithin 28 days of the end of the tender validity period specified inClause 3.6.3.11 The Tender Security of the successful tenderer will be dischargedwhen the tenderer has signed the Contract Agreement andfurnished the required Performance Security.3.12 The Tender Security may be forfeited(a)(b)(c)if the tenderer withdraws the tender after tender openingduring the period of tender validity;if the tenderer does not accept the correction of the tenderprice, pursuant to Clause 5.7;in the case of a successful tenderer, if the tenderer failswithin the specified time limit to(i)(ii)sign the Agreement, orfurnish the required Performance Security.3.13 Tenderers shall submit offers that comply with the requirements ofthe tendering documents, including the basic technical design asindicated in the Drawings and Specifications. Alternatives will notbe considered, unless specifically allowed in the invitation totender. If so allowed, tenderers wishing to offer technicalalternatives to the requirements of the tendering documents mustalso submit a tender that complies with the requirements of thetendering documents, including the basic technical design asindicated in the Drawings and Specifications. In addition tosubmitting the basic tender, the tenderer shall provide allinformation necessary for a complete evaluation of the alternative,including design calculations, technical specifications, breakdownof prices, proposed construction methods and other relevantdetails. Only the technical alternatives, if any, of the lowestevaluated tender conforming to the basic technical requirementsshall be considered.3.14 The tenderer shall prepare one original technical bid and oneoriginal financial bid as described in Clause 3.2 of theseInstructions to Tenderers, Further the bidders shall submit TWO(2). copies of each bid clearly marked as “COPIES”. In the event ofdiscrepancy between them, the original shall prevail.10

3.15 The original and all copies of the tender shall be typed or written inindelible ink and shall be signed by a person or persons dulyauthorised to sign on behalf of the tenderer, as the case may be.All pages of the tender where alterations or additions have beenmade shall be initialled by the person or persons signing thetender.3.16 Clarification of tenders shall requested by the tenderers to bereceived by the procuring entity not later than 7 days prior to thedeadline for submission of tenders.3.17 The procuring entity shall reply to any clarifications sought by thetenderer within 3 days of receiving the request to enable thetenderer to make timely submission of its tender.4. Submission of Tenders4.1 The tender must submitted in a two in one envelope in thefollowing formatThe inner envelopes should be clearly marked as followsTECHNICAL BID TENDER NO. KWS/OT/BF/09/2013-2014PROPOSED STAFF RESIDENTIAL FLATS, ABLUTION BLOCK, SHEDAND ASSOCIATED SERVICES AT LAKE NAKURU NATIONAL PARKFINANCIAL BID TENDER NO. KWS/OT/BF/09/2013-2014PROPOSED STAFF RESIDENTIAL FLATS, ABLUTION BLOCK, SHEDAND ASSOCIATED SERVICES AT LAKE NAKURU NATIONAL PARK4.2 The two envelopes shall then be sealed in an outer envelope.addressed to the(a)(b)(c)the Employer at the address provided in the invitation totender;bear the name and identification number of the Contract asdefined in the invitation to tender; andprovide a warning not to open before the specified time anddate for tender opening.4.3 Tenders shall be delivered to the Employer at the address specifiedabove not later than the time and date specified in the invitation totender. However, the Employer may extend the deadline forsubmission of tenders by issuing an amendment in accordancewith Sub-Clause 2.5 in which case all rights and obligations of theEmployer and the tenderers previously subject to the originaldeadline will then be subject to the new deadline.11

4.4 Any tender received after the deadline prescribed in clause 4.2 willbe returned to the tenderer un-opened.4.5 Tenderers may modify or withdraw their tenders by giving notice inwriting before the deadline prescribed in clause 4.2. Eachtenderer’s modification or withdrawal notice shall be prepared,sealed, marked, and delivered in accordance with clause 3.13 and4.1, with the outer and inner envelopes additionally marked“MODIFICATION” and “WITHDRAWAL”, as appropriate. Notender may be modified after the deadline for submission oftenders.4.6 Withdrawal of a tender between the deadline for submission oftenders and the expiration of the period of tender validity specifiedin the invitation to tender or as extended pursuant to Clause 3.6may result in the forfeiture of the Tender Security pursuant toClause 3.11.4.7 Tenderers may only offer discounts to, or otherwise modify theprices of their tenders by submitting tender modifications inaccordance with Clause 4.4 or be included in the original tendersubmission.5. Tender Opening and Evaluation5.1 The tenders will be opened by the Employer, includingmodifications made pursuant to Clause 4.4, in the presence of thetenderers’ representatives who choose to attend at the time and inthe place specified in the invitation to tender. Envelopes marked“WITHDRAWAL” shall be opened and read out first. Tenderers’ andEmployer’s representatives who are present during the openingshall sign a register evidencing their attendance.5.2 During the Technical bid opening the following shall be read outThe tenderers’ names, tender modifications and withdrawals if any,the presence or absence of Tender Security, and such other detailsas may be considered appropriate, will be announced by theEmployer at the opening. Minutes of the tender opening, includingthe information disclosed to those present will be prepared by theEmployer.Opening of financial bids that meet minimum technical eligibilitycriteria will be only be done upon completion of technicalevaluation. The qualified bidders will be invited to witness theopening of the financial bids5.3 Information relating to the examination, clarification, evaluation,and comparison of tenders and recommendations for the award ofContract shall not be disclosed to tenderers or any other personsnot officially concerned with such process. Any effort by a tendererto influence the Employer’s officials, processing of tenders or awarddecisions may result in the rejection of his tender.12

5.4 To assist in the examination, evaluation, and comparison oftenders, the Employer at his discretion, may ask any tenderer forclarification of the tender, including breakdowns of unit rates. Therequest for clarification and the response shall be in writing or bycable, telex or facsimile but no change in the price or substance ofthe tender shall be sought, offered, or permitted except as requiredto confirm the correction of arithmetic errors discovered in theevaluation of the tenders in accordance with Clause 5.7.5.5 Prior to the detailed evaluation of tenders, the Employer willdetermine whether each tender meets the eligibility criteria asdefined in appendix to instruction to bidders and is substantiallyresponsive to the requirements of the tendering documents. Asubstantially responsive tender is one which conforms to all theterms, conditions and specifications of the tendering documents,without material deviation or reservation. A material deviation orreservation is one (a) which affects in any substantial way thescope, quality, or performance of the works; (b) which limits in anysubstantial way, inconsistent with the tendering documents, theEmployer’s rights or the tenderer’s obligations under the Contract;or (c) whose rectification would affect unfairly the competitiveposition of other tenderers presenting substantially responsivetenders.5.6 If a tender is not substantially responsive, it will be rejected, andmay not subsequently be made responsive by correction orwithdrawal of the nonconforming deviation or reservation.5.7 Tenders determined to be substantially responsive will be checkedfor any arithmetic errors. Errors will be corrected as follows:(a)(b)(c)(d)where there is a discrepancy between the amount in figuresand the amount in words, the amount in words will prevail;andwhere there is a discrepancy between the unit rate and theline item total resulting from multiplying the unit rate by thequantity, the unit rate as quoted will prevail, unless in theopinion of the Employer, there is an obvious typographicalerror, in which case the adjustment will be made to the entrycontaining that error.In the event of a discrepancy between the tender amount asstated in the Form of Tender and the corrected tender figurein the main summary of the Bill of Quantities, the amount asstated in the Form of Tender shall prevail.The Error Correction Factor shall be computed by expressingthe difference between the tender amount and the correctedtender sum as a percentage of the corrected Builder’s Work(i.e. Corrected tender sum less P.C. and Provisional Sums)13

(e)(f)The Error Correction Factor shall be applied to all Builder’sWork (as a rebate or addition as the case may be) for thepurposes of valuations for Interim Certificates and valuationof variations.the amount stated in the tender will be adjusted inaccordance with the above procedure for the correction oferrors and, withconcurrence of the tenderer, shall be considered as bindingupon the tenderer. If the tenderer does not accept thecorrected amount, the tender may be rejected and the TenderSecurity may be forfeited in accordance with clause 3.12.5.8 The Employer will evaluate and compare only the tendersdetermined to be substantially responsive in accordance withClause 5.5. evaluation shall be in accordance with criteria setout in the appendix to instruction to bidders5.9 In evaluating the tenders, the Employer will determine for eachtender the evaluated tender price by adjusting the tender price asfollows:(a) making any correction for errors pursuant to clause 5.7;(b)(c)(d)Excluding provisional sums and the provision, if any, forcontingencies in the Bill of Quantities, but includingDayworks where priced competitively.making an appropriate adjustment for any other acceptablevariations, deviations, or alternative offers submitted inaccordance with clause 3.13; andmaking appropriate adjustments to reflect discounts or otherprice modifications offered in accordance with clause 4.65.10 The Employer reserves the right to accept or reject any variation,deviation, or alternative offer. Variations, deviations, andalternative offers and other factors which are in excess of therequirements of the tender documents or otherwise result inunsolicited benefits for the Employer will not be taken into accountin tender evaluation.5.11 The tenderer shall not influence the Employer on any matterrelating to his tender from the time of the tender opening to thetime the Contract is awarded. Any effort by the Tenderer toinfluence the Employer or his employees in his decision on tenderevaluation, tender comparison or Contract award may result in therejection of the tender.14

5.12 Firms incorporated in Kenya where indigenous Kenyans own 51%or more of the share capital shall be allowed a 10% preferentialbias provided that they do not sub-contract work valued at morethan 50% of the Contract Price excluding Provisional Sums to anNon-indigenous sub-contractor.6. Award of Contract6.1 Subject to Clause 6.2, the award of the Contract will be made tothe tenderer whose tender has been determined to be substantiallyresponsive to the tendering requirements as set out in tenderdocuments and elucidated in appendix to instruction to biddersand who has offered the lowest evaluated tender price.6.2 Notwithstanding clause 6.1 above, the Employer reserves the rightto accept or reject any tender, and to cancel the tendering processand reject all tenders, at any time prior to the award of Contract,without thereby incurring any liability to the affected tenderer ortenderers or any obligation to inform the affected tenderer ortenderers of the grounds for the action.6.3 The tenderer whose tender has been accepted will be notified of theaward prior to expiration of the tender validity period in writing orby cable, telex or facsimile. This notification (hereinafter and in allContract documents called the “Letter of Acceptance”) will state thesum (hereinafter and in all Contract documents called the“Contract Price”)that the Employer will pay the Contractor inconsideration of the execution, completion, and maintenance of theWorks by the Contractor as prescribed by the Contract. At thesame time the other tenderers shall be informed that their tendershave not been successful.The contract shall be formed on the parties signing the contract.6.4 The Agreement will incorporate all agreements between theEmployer and the successful tenderer. Within 14 days of receiptthe successful tenderer will sign the Agreement and return it to theEmployer.6.5 Within 28 days after receipt of the Letter ofNotification/Acceptance, the successful tenderer shall deliver to theEmployer a Performance Security in the amount stipulated in theAppendix to Conditions of Contract and in the form stipulated inthe Tender documents. The Performance Security shall be in theamount and specified form6.6 Failure of the successful tenderer to comply with the requirementsof clause 6.5 shall constitute sufficient grounds for cancellation ofthe award and forfeiture of the Tender Security.15

6.7 Upon the furnishing by the successful tenderer of the PerformanceSecurity, the Employer will promptly notify the other tenderers thattheir tenders have been unsuccessful.6.8 Preference where allowed in the evaluation of tenders shall not beallowed for contracts not exceeding one year (12 months)6.9 The parties to the contract shall have it signed within 30 days fromthe date of notification of contract award unless there is anadministrative review request.6.10 Contract price variations shall not be allowed for contracts notexceeding one year (12 months)6.11 Where contract price variation is allowed, the valuation shall notexceed 15% of the original contract price.6.12 Price variation request shall be processed by the procuring entitywithin 30 days of receiving the request.6.13 The procuring entity may at any time terminate procurementproceedings before contract award and shall not be liable to anyperson for the termination.6.14 A tenderer who gives false information in the tender documentabout its qualification or who refuses to enter into a contract afternotification of contract award shall be considered for debarmentfrom participating in future public procurement.7. Corrupt and Fraudulent practices7.1 The procuring entity requires that tenderers observe the higheststandards of ethics during procurement process and execution ofcontracts. A tenderer shall sign a declaration that he has not andwill not be involved in corrupt and fraudulent practices.16

SECTION IIIAPPENDIX TO INSTRUCTION TOTENDERERSThe following information for procurement of works shall complement or amendthe provisions of the instruction to tenderers, wherever there is a conflictbetween the provisions of the instruction to tenderes and the provisions of theappendix the provisions of the appendix herein shall prevailParticulars of appendix to instruction to tenderes(a) Submission of bidsThe tender must submitted in a two in one envelope bid in the followingformat(I) TECHNICAL BID , comprising the following documents PRESENTED INTHE ORDER GIVEN BELOW- Marks to be awarded for presentationSectionDocumentA. Tender Security (as stipulated in advert or invitation to bid)B. Certificate of incorporation/business registrationCertificateC. Confidential Business Questionnaire Ref: tenderdocument Volume 1 of 2 page 58-60D. Registration with National ConstructionAuthority as a general buildings contractorCategory NC-5 or aboveE. Power of attorney to sign tender documentsF. Valid Tax Compliance CertificateG. Authority to seek references from the tenderer’sbankersH. Last two years audited accounts or 24 monthsbank statementI. Key staff competency profiles (project manager &site agentJ. Details of similar major contracts in the last 5yrsK. Evidence of Liquid assets andor credit facilities,net of other contractual commitments and exclusive ofany advance payments which may be made under theContract, of no less than 2 months of the estimatedpayment flow under this ContractL. Adequate equipment for the specified type ofwork giving details and evidence as to whether ownedor leasedM. Litigation history17

(II) FINANCIAL BID , comprising the following documents ONLY-a. Form of Tender;b. Pricing preamblesc. Preliminariesd. Bills of quantitiese. Drawings(b) Sealing and Marking of BidsThe inner envelopes should be clearly marked as followsTECHNICAL BID TENDER NO. KWS/OT/BF/09/2013-2014PROPOSED STAFF RESIDENTIAL FLATS, ABLUTION BLOCK, SHED ANDASSOCIATED SERVICES AT LAKE NAKURU NATIONAL PARKFINANCIAL BID TENDER NO. KWS/OT/BF/09/2013-2014PROPOSED STAFF RESIDENTIAL FLATS, ABLUTION BLOCK, SHED ANDASSOCIATED SERVICES AT LAKE NAKURU NATIONAL PARKThe envelopes shall then be sealed in an outer envelope. addressed to the :Director Kenya Wildlife ServicePO Box 40241NairobiClearly stipulating the tender number KWS/OT/BF/09/2013-2014, and job description (title)c) Tender Evaluation Criteria.The following criteria shall be used in evaluation of all bids . The submissionsof the required documents will be used in determination of the completenessand suitability of the bid. Bids that do not contain all the information requiredshall be considered non responsive and shall not be evaluated further, , unlessdirectly exempted by (Public procurement and disposal (preference andreservations) regulations 2011, in which case they said regulations shall guidethe evaluation.1.1 Mandatory Requirements (failure to fully comply shall lead todisqualification) the following requirements MUST be submitted in thetechnical proposal envelope.A. Tender Security as stipulated in invitation to bidB. Certificate of incorporation/business registration Certificate18

C. Tender questionnaire/Confidential Business QuestionnaireRef: tender document volume 1 of 2 page 58-60D. Registration with National Construction Authority as ageneral buildings contractor NCA-5 or aboveE. Power of attorney to sign tender documentsF. Valid tax compliance certificateG. authority to seek references from the tenderer’s bankersH. Audited accounts last 2 years or bank statement last 24months1.2 Technical evaluation requirementsAny tenderer who fails to submit or meet the mandatory requirementswill be disqualified and will not be eligible to proceed to the technical andfinancial evaluationPreference where applicable shall be guided by Public procurement anddisposal (preference and reservations) regulations 2011ItemNo.(a)(b)(c)(d)(e)(f)RequirementsPresentation and response( this includes binding thedocument and neat presentation, separation andarrangement of requested information & general response toall requirementsexperience as main contractor in the construction of at leasttwo works of a nature and complexity equivalent to the Works(kshs 50 million) over the last 5 years (to comply with thisrequirement, works cited should be at least 70 percentcomplete); supported by copies of agreement or certificatesAnnual volume of construction work of kshs 100 million peryear borne from turnover in audited accounts for the past twoyears, or cumulative volume of transactions evidenced inbank statementProposals for the timely acquisition (own, lease, hire, etc.) ofthe essential equipment as required for the Works – if ownedthen copies of logbooks Must be attached, for lease or hire, tobe supported by lease/hire agreementEvidence of liquid assets or credit facilities, either from thebank credit facilities , credit facilities from major relevantmaterials suppliers, manufacturers or dealers all adding upto a minimum Cumulative facility of kshs 8.0millionQualifications and experience of key site management andtechnical personnel proposed for the contract supported byacademic and professional certificates in addition to signedcurriculum vitae, Project manager, site agent.WeightingFactor(g) Litigation History 5Total 1005202015201519

A cut off point of 70% score shall apply meaning that any firm scoring lessthan 70 points on the 100 points scale in technical evaluation shall beconsidered technically non responsive and therefore shall not be considered inthe financial evaluation.All financial bids for technically Non responsive bids shall not be opened1.3 Financial bid Opening /EvaluationOpening of financial bids that meet minimum technical specifications will bedone upon completion of technical evaluation. The qualified bidders will beinvited to witness the opening of the financial bidsThe financial bids of non responsive bidders (technical stage) shall not beopenedTo qualify for award the bidder must satisfy the following financial eligibilitycriteria(a) The tender form must be duly signed by authorized person vide powerof attorney(b) The eligible bid must fall within the range of +ve/-ve 10% of pretenderestimates, failure to which it will be declared financially nonresponsive.(c) The bidder must concur to correction of errors in line with instructionto bidders clause 5.7(d) Prices quoted must be valid for 90 days1.4 AwardThe award of the Contract will be made to the lowest evaluated tenderer whosetender has been determined to be substantially responsive and in fullcompliance to the mandatory, technical and financial evaluation requirements.NB: Prior to recommendation for award the employer reserves the right to makephysical visit to successful bidders premises to undertake due dilligicence.Should there emanate evidence of material discrepancy or inconsistenciesbetween the information submitted by the bidder and actual circumstances onthe ground as witnessed during due diligence, then this shall form a sufficientground for rejection of the bid in spite of having fulfilled all other relevantevaluation criteria requirements.20

SECTION IVCONDITIONS OF CONTRACTTable of Contents1 Definitions ………………………………………………… 232 Interpretation……………………………………………… 253 Language and Law ………………………………………… 264 Project Manager’s Decisions……………………………… 265 Delegation………………………………………………… 266 Communications ………………………………………… 267 Sub Contracting ………………………………………… 268 Other Contractors ……………………………………… 269 Personnel ………………………………………………… 2610 Works……………………………………………………… 2711 Safety and temporary works ……………………………… 2712 Discoveries ………………………………………………… 2713 Work Programme ………………………………………… 2714 Possession of site ………………………………………… 2815 Access to site …………………………………………… 2816 Instructions ……………………………………………… 2817 Extension or Acceleration of completion date ………… 2818 Management Meetings ………………………………… 2919 Early Warning …………………………………………… 2920 Defects …………………………………………………… 2921 Bills of Quantities ………………………………………… 3022 Variations ………………………………………………… 3023 Payment certificates, currency of payments andAdvance Payments ……………………………………… 3124 Compensation events …………………………………… 3325 Price Adjustment ………………………………………… 3526 Retention ………………………………………………… 3627 Liquidated Damages……………………………………… 3628 Securities ………………………………………………… 3729 Day Works ……………………………………………… 3730 Liability and Insurance …………………………………… 3731 Completion and taking over ……………………………… 3921

32 Final Account …………………………………………… 3933 Termination ……………………………………………… 3934 Payment upon termination ………………………………… 4035 Release from performance ………………………………… 4136 Corrupt gifts and payments of commission ………………4137 Settlement of Disputes ……………………………………… 4222

CONDITIONS OF CONTRACT1. Definitions1.1 In this Contract, except where context otherwise requires, thefollowing terms shall be interpreted as indicated;“Bill of Quantities” means the priced and completed Bill ofQuantities forming part of the tender.“Compensation Events” are those defined in Clause 24hereunder.“The Completion Date” means the date of completion of theWorks as certified by the Project Manager, in accordance withClause 31.“The Contract” means the agreement entered into between theEmployer and the Contractor as recorded in the Agreement Formand signed by the parties including all attachments andappendices thereto and all documents incorporated by referencetherein to execute, complete, and maintain the Works,“The Contractor” refers to the person or corporate body whosetender to carry out the Works has been accepted by the Employer.“The Contractor’s Tender”is the completed tendering documentsubmitted by the Contractor to the Employer.“The Contract Price” is the price stated in the Letter ofAcceptance and thereafter as adjusted in accordance with theprovisions of the Contract.“Days” are calendar days; “Months” are calendar months.“A Defect” is any part of the Works not completed in accordancewith the Contract.“The Defects Liability Certificate” is the certificate issued byProject Manager upon correction of defects by the Contractor.“The Defects Liability Period” is the period named in theContract Data and calculated from the Completion Date.“Drawings” include calculations and other information provided orapproved by the Project Manager for the execution of the Contract.“Dayworks” are Work inputs subject to payment on a time basisfor labour and the associated materials and plant.23

“Employer”, or the “Procuring entity” as defined in the PublicProcurement Regulations (i.e. Central or Local Governmentadministration, Universities, Public Institutions and Corporations,etc) is the party who employs the Contractor to carry out theWorks.“Equipment” is the Contractor’s machinery and vehicles broughttemporarily to the Site for the execution of the Works.“The Intended Completion Date” is the date on which it isintended that the Contractor shall complete the Works. TheIntended Completion Date may be revised only by the ProjectManager by issuing an extension of time or an acceleration order.“Materials” are all supplies, including consumables, used by theContractor for incorporation in the Works.“Plant” is any integral part of the Works that shall have amechanical, electrical, chemical, or biological function.“Project Manager” is the person named in the Appendix toConditions of Contract (or any other competent person appointedby the Employer and notified to the Contractor, to act inreplacement of the Project Manager who is responsible forsupervising the execution of the Works and administering theContract and shall be an “Architect” or a “Quantity Surveyor”registered under the Architects and Quantity Surveyors Act Cap525 or an “Engineer” registered under Engineers Registration ActCap 530.“Site” is the area defined as such in the Appendix to Condition ofContract.“Site Investigation Reports” are those reports that may beincluded in the tendering documents which are factual andinterpretative about the surface and subsurface conditions at theSite.“Specifications” means the Specifications of the Works includedin the Contract and any modification or addition made or approvedby the Project Manager.“Start Date” is the latest date when the Contractor shallcommence execution of the Works. It does not necessarily coincidewith the Site possession date(s).“A Subcontractor” is a person or corporate body who has aContract with the Contractor to carry out a part of the Work in theContract, which includes Work on the Site.24

“Temporary works” are works designed, constructed, installed,and removed by the Contractor which are needed for constructionor installation of the Works.“A Variation” is an instruction given by the Project Manager whichvaries the Works.“The Works” are what the Contract requires the Contractor to construct,install, and turnover to the Employer, as defined in the Appendix toConditions of Contract.2. Interpretation2.1 In interpreting these Conditions of Contract, singular also meansplural, male also means female or neuter, and the other wayaround. Headings have no significance. Words have their normalmeaning in English Language unless specifically defined. TheProject Manager will provide instructions clarifying queries aboutthese Conditions of Contract.2.2 If sectional completion is specified in the Appendix to Conditions ofContract, reference in the Conditions of Contract to the Works, theCompletion Date and the Intended Completion Date apply to anysection of the Works (other than references to the IntendedCompletion Date for the whole of the Works).2.3 The following documents shall constitute the Contract documentsand shall be interpreted in the following order of priority;(1) Agreement,(2) Letter of Acceptance,(3) Contractor’s Tender,(4) Appendix to Conditions of Contract,(5) Conditions of Contract,(6) Specifications,(7) Drawings,(8) Bill of Quantities,(9) Any other documents listed in the Appendix to Conditions ofContract as forming part of the Contract.Immediately after the execution of the Contract, the ProjectManager shall furnish both the Employer and the Contractor withtwo copies each of all the Contract documents. Further, as andwhen necessary the Project Manager shall furnish the Contractor25

always with a copy to the Employer] with three [3] copies of suchfurther drawings or details or descriptive schedules as arereasonably necessary eitherto explain or amplify the Contractdrawings or to enable the Contractor to carry out and complete theWorks in accordance withthese Conditions.3. Language and Law3.1 Language of the Contract and the law governing the Contract shallbe English language and the Laws of Kenya respectively unlessotherwise stated.4 Project Manager’s Decisions4.1 Except where otherwise specifically stated, the Project Manager willdecide contractual matters between the Employer and theContractor in the role representing the Employer.5 Delegation5.1 The Project Manager may delegate any of his duties andresponsibilities to others after a notifying the Contractor in writing.6 Communications6.1 Communication between parties shall be effective only when inwriting. A notice shall be effective only when it is delivered.7 Subcontracting7.1 The Contractor may subcontract with the approval of the ProjectManager, but may not assign the Contract without the approval ofthe Employer in writing. Subcontracting shall not alter theContractor’s obligations.8 Other Contractors8.1 The Contractor shall cooperate and share the Site with othercontractors, public authorities, utilities etc. as listed in theAppendix to Conditions of Contract and also with the Employer, asper the directions of the Project Manager. The Contractor shallalso provide facilities and services for them. The Employer maymodify the said List of Other Contractors etc., and shall notify theContractor of any such modification.9 Personnel9.1 The Contractor shall employ the key personnel named in theQualification Information, to carry out the functions stated in thesaid Information or other personnel approved by the ProjectManager. The Project Manager will approve any proposed26

eplacement of key personnel only if their relevant qualificationsand abilities are substantially equal to or better than those of thepersonnel listed in the Qualification Information. If the ProjectManager asks the Contractor to remove a person who is a memberof the Contractor’s staff or work force, stating the reasons, theContractor shall ensure that the person leaves the Site withinseven days and has no further connection with the Work in theContract.10 Works10.1 The Contractor shall construct and install the Works in accordancewith the Specifications and Drawings. The Works may commenceon the Start Date and shall be carried out in accordance with theProgram submitted by the Contractor, as updated with theapproval of the Project Manager, and complete them by theIntended Completion Date.11 Safety and Temporary Works11.1 The Contractor shall be responsible for the design of temporaryworks. However before erecting the same, he shall submit hisdesigns including specifications and drawings to the ProjectManager and to any other relevant third parties for their approval.No erection of temporary works shall be done until such approvalsare obtained.11.2 The Project Manager’s approval shall not alter the Contractor’sresponsibility for design of the Temporary works and all drawingsprepared by the Contractor for the execution of the temporary orpermanent Works, shall be subject to prior approval by the ProjectManager before they can be used.11.3 The Contractor shall be responsible for the safety of all activities onthe Site.12. Discoveries12.1 Anyth ing of historical or other interest or of significant valueunexpectedly discovered on Site shall be the property of theEmployer. The Contractor shall notify the Project Manager of suchdiscoveries and carry out the Project Manager’s instructions fordealing with them.13. Work Program13.1 Within the time stated in the Appendix to Conditions of Contract,the Contractor shall submit to the Project Manager for approval aprogram showing the general methods, arrangements, order, andtiming for all the activities in the Works. An update of the programshall be a program showing the actual progress achieved on eachactivity and the effect of the progress achieved on the timing of the27

emaining Work, including any changes to the sequence of theactivities.The Contractor shall submit to the Project Manager for approval anupdated program at intervals no longer than the period stated inthe Appendix to Conditions of Contract. If the Contractor does notsubmit an updated program within this period, the Project Managermay withhold the amount stated in the said Appendix from thenext payment certificate and continue to withhold this amountuntil the next payment after the date on which the overdueprogram has been submitted. The Project Manager’s approval ofthe program shall not alter the Contractor’s obligations. TheContractor may revise the program and submit it to the ProjectManager again at any time. A revised program shall show theeffect of Variations and Compensation Events.14. Possession of Site14.1 The Employer shall give possession of all parts of the Site to theContractor. If possession of a part is not given by the date statedin the Appendix to Conditions of Contract, the Employer will bedeemed to have delayed the start of the relevant activities, and thiswill be a Compensation Event.15. Access to Site15.1 The Contractor shall allow the Project Manager and any otherperson authorised by the Project Manager, access to the Site and toany place where work in connection with the Contract is beingcarried out or is intended to be carried out.16. Instructions16.1 The Contractor shall carry out all instructions of the ProjectManager which are in accordance with the Contract.17. Extension or Acceleration of Completion Date17.1 The Project Manager shall extend the Intended Completion Date if aCompensation Event occurs or a variation is issued which makes itimpossible for completion to be achieved by the IntendedCompletion Date without the Contractor taking steps to acceleratethe remaining Work, which would cause the Contractor to incuradditional cost. The Project Manager shall decide whether and byhow much to extend the Intended Completion Date within 21 daysof the Contractor asking the Project Manager in writing for adecision upon the effect of a Compensation Event or variation andsubmitting full supporting information. If the Contractor has failedto give early warning of a delay or has failed to cooperate in dealingwith a delay, the delay caused by such failure shall not beconsidered in assessing the new (extended) Completion Date.28

17.2 No bonus for early completion of the Works shall be paid to theContractor by the Employer.18. Management Meetings18.1 A Contract management meeting shall be held monthly andattended by the Project Manager and the Contractor. Its businessshall be to review the plans for the remaining Work and to dealwith matters raised in accordance with the early warningprocedure. The Project Manager shall record the minutes ofmanagement meetings and provide copies of the same to thoseattending the meeting and the Employer. The responsibility of theparties for actions to be taken shall be decided by the ProjectManager either at the management meeting or after themanagement meeting and stated in writing to all who attended themeeting.19. Early Warning19.1 The Contractor shall warn the Project Manager at the earliestopportunity of specific likely future events or circumstances thatmay adversely affect the quality of the Work, increase the ContractPrice or delay the execution of the Works. The Project Managermay require the Contractor to provide an estimate of the expectedeffect of the future event or circumstance on the Contract Price andCompletion Date. The estimate shall be provided by the Contractoras soon as reasonably possible.19.2 The Contractor shall cooperate with the Project Manager in makingand considering proposals on how the effect of such an event orcircumstance can be avoided or reduced by anyone involved in theWork and in carrying out any resulting instructions of the ProjectManager.20. Defects20.1 The Project Manager shall inspect the Contractor’s work and notifythe Contractor of any defects that are found. Such inspection shallnot affect the Contractor’s responsibilities. The Project Managermay instruct the Contractor to search for a defect and to uncoverand test any Work that the Project Manager considers may have adefect. Should the defect be found, the cost of uncovering andmaking good shall be borne by the Contractor, However, if there isno defect found, the cost of uncovering and making good shall betreated as a variation and added to the Contract Price.20.2 The Project Manager shall give notice to the Contractor of anydefects before the end of the Defects Liability Period, which beginsat Completion, and is defined in the Appendix to Conditions ofContract. The Defects Liability Period shall be extended for as longas defects remain to be corrected.29

20.3 Every time notice of a defect is given, the Contractor shall correctthe notified defect within the length of time specified by the ProjectManager’s notice. If the Contractor has not corrected a defectwithin the time specified in the Project Manager’s notice, theProject Manager will assess the cost of having the defect correctedby other parties and such cost shall be treated as a variation andbe deducted from the Contract Price.21. Bills Of Quantities21.1 The Bills of Quantities shall contain items for the construction,installation, testing and commissioning of the Work to be done bythe Contractor. The Contractor will be paid for the quantity of theWork done at the rate in the Bills of Quantities for each item.21.2 If the final quantity of the Work done differs from the quantity inthe Bills of Quantities for the particular item by more than 25percent and provided the change exceeds 1 percent of the InitialContract price, the Project Manager shall adjust the rate to allowfor the change.21.3 If requested by the Project Manager, the Contractor shall providethe Project Manager with a detailed cost breakdown of any rate inthe Bills of Quantities.22. Variations22.1 All variations shall be included in updated programs produced bythe Contractor.22.2 The Contractor shall provide the Project Manager with a quotationfor carrying out the variations when requested to do so. TheProject Manager shall assess the quotation, which shall be givenwithin seven days of the request or within any longer period as maybe stated by the Project Manager and before the Variation isordered.22.3 If the work in the variation corresponds with an item description inthe Bills of Quantities and if in the opinion of the Project Manager,the quantity of work is not above the limit stated in Clause 21.2 orthe timing of its execution does not cause the cost per unit ofquantity to change, the rate in the Bills of Quantities shall be usedto calculate the value of the variation. If the cost per unit ofquantity changes, orif the nature or timing of the work in the variation does notcorrespond with items in the Bills of Quantities, the quotation bythe Contractor shall be in the form of new rates for the relevantitems of Work.30

22.4 If the Contractor’s quotation is unreasonable, the Project Managermay order the variation and make a change to the Contract price,which shall be based on the Project Manager’s own forecast of theeffects of the variation on the Contractor’s costs.22.5 If the Project Manager decides that the urgency of varying the Workwould prevent a quotation being given and considered withoutdelaying the Work, no quotation shall be given and the variationshall be treated as a Compensation Event.22.6 The Contractor shall not be entitled to additional payment for coststhat could have been avoided by giving early warning.22.7 When the Program is updated, the Contractor shall provide theProject Manager with an updated cash flow forecast.23. Payment Certificates, Currency of Payments and Advance Payments23.1 The Contractor shall submit to the Project Manager monthlyapplications for payment giving sufficient details of the Work doneand materials on Site and the amounts which the Contractorconsiders himself to be entitled to. The Project Manager shall checkthe monthly application and certify the amount to be paid to theContractor within 14 days. The value of Work executed andpayable shall be determined by the Project Manager.23.2 The value of Work executed shall comprise the value of thequantities of the items in the Bills of Quantities completed;materials delivered on Site, variations and compensation events.Such materials shall become the property of the Employer once theEmployer has paid the Contractor for their value. Thereafter, theyshall not be removed from Site without the Project Manager’sinstructions except for use upon the Works.23.3 Payments shall be adjusted for deductions for retention. TheEmployer shall pay the Contractor the amounts certified by theProject Manager within 30 days of the date of issue of eachcertificate. If the Employer makes a late payment, the Contractorshall be paid simple interest on the late payment in the nextpayment. Interest shall be calculated on the basis of number ofdays delayed at a rate three percentage points above the CentralBank of Kenya’s average rate for base lending prevailing as of thefirst day the payment becomes overdue.31

23.4 If an amount certified is increased in a later certificate or as aresult of an award by an Arbitrator, the Contractor shall be paidinterest upon the delayed payment as set out in this clause.Interest shall be calculated from the date upon which the increasedamount would have been certified in the absence of dispute.23.5 Items of the Works for which no rate or price has been entered inwill not be paid for by the Employer and shall be deemed coveredby other rates and prices in the Contract.23.6 The Contract Price shall be stated in Kenya Shillings. All paymentsto the Contractor shall be made in Kenya Shillings and foreigncurrency in the proportion indicated in the tender, or agreed priorto the execution of the Contract Agreement and indicated therein.The rate of exchange for the calculation of the amount of foreigncurrency payment shall be the rate of exchange indicated in theAppendix to Conditions of Contract. If the Contractor indicatedforeign currencies for payment other than the currencies of thecountries of origin of related goods and services the Employerreserves the right to pay the equivalent at the time of payment inthe currencies of the countries of such goods and services. TheEmployer and the Project Manager shall be notified promptly by theContractor of an changes in the expected foreign currencyrequirements of the Contractor during the execution of the Worksas indicated in the Schedule of Foreign Currency Requirementsand the foreign and local currency portions of the balance of theContract Price shall then be amended by agreement betweenEmployer and the Contractor in order to reflect appropriately suchchanges.23.7 In the event that an advance payment is granted, the followingshall apply:-a) On signature of the Contract, the Contractor shall at hisrequest, and without furnishing proof of expenditure, beentitled to an advance not exceeding 10% (ten percent) of theoriginal amount of the Contract. The advance shall not besubject to retention money.b) No advance payment may be made before the Contractor hassubmitted proof of the establishment of deposit or a directlyliable guarantee satisfactory to the Employer in the amountof the advance payment. The guarantee shall be in the samecurrency as the advance.c) Reimbursement of the lump sum advance shall be made bydeductions from the Interim payments and where applicablefrom the balance owing to the Contractor. Reimbursementshall begin when the amount of the sums due under theContract reaches 20% of the original amount of the Contract.It shall have been completed by the time 80% of this amountis reached.32

The amount to be repaid by way of successive deductions shall becalculated by means of the formula:R = A(x 1 – x 11 )80 – 20Where:R = the amount to be reimbursedA = the amount of the advance which has beengrantedX 1 = the amount of proposed cumulative payments asa percentage of the original amount of theContract. This figure will exceed 20% but notexceed 80%.X 11 = the amount of the previous cumulative paymentsas a percentage of the original amount of theContract. This figure will be below 80%but notless than 20%.d) With each reimbursement the counterpart of the directlyliable guarantee may be reduced accordingly.24. Compensation Events24.1 The following issues shall constitute Compensation Events:(a)(b)(c)(d)(e)(f)The Employer does not give access to a part of the Site by theSite Possession Date stated in the Appendix to Conditions ofContract.The Employer modifies the List of Other Contractors, etc., ina way that affects the Work of the Contractor under theContract.The Project Manager orders a delay or does not issuedrawings, specifications or instructions required forexecution of the Works on time.The Project Manager instructs the Contractor to uncover orto carry out additional tests upon the Work, which is thenfound to have no defects.The Project Manager unreasonably does not approve asubcontract to be let.Ground conditions are substantially more adverse than couldreasonably have been assumed before issuance of the Letterof Acceptance from the information issued to tenderers33

(including the Site investigation reports), from informationavailable publicly and from a visual inspection of the Site.(g)(h)(i)The Project Manager gives an instruction for dealing with anunforeseen condition, caused by the Employer or additionalwork required for safety or other reasons.Other contractors, public authorities, utilities, or theEmployer does not work within the dates and otherconstraints stated in the Contract, and they cause delay orextra cost to the Contractor.The effects on the Contractor of any of the Employer’s risks.(j) The Project Manager unreasonably delays issuing aCertificate of Completion.(k)Other compensation events described in the Contract ordetermined by the Project Manager shall apply.24.2 If a compensation event would cause additional cost or wouldprevent the Work being completed before the Intended CompletionDate, the Contract Price shall be increased and/or the IntendedCompletion Date shall be extended. The Project Manager shalldecide whether and by how much the Contract Price shall beincreased and whether and by how much the Intended CompletionDate shall be extended.24.3 As soon as information demonstrating the effect of eachcompensation event upon the Contractor’s forecast cost has beenprovided by the Contractor, it shall be assessed by the ProjectManager, and the Contract Price shall be adjusted accordingly. Ifthe Contractor’s forecast is deemed unreasonable, the ProjectManager shall adjust the Contract Price based on the ProjectManager’s own forecast. TheProject Manager will assume that the Contractor will reactcompetently and promptly to the event.24.4 The Contractor shall not be entitled to compensation to the extentthat the Employer’s interests are adversely affected by theContractor not having given early warning or not having cooperatedwith the Project Manager.24.5 Prices shall be adjusted for fluctuations in the cost of inputs only ifprovided for in the Appendix to Conditions of Contract.24.6 The Contractor shall give written notice to the Project Manager ofhis intention to make a claim within thirty days after the eventgiving rise to the claim has first arisen. The claim shall besubmitted within thirty days thereafter.34

Provided always that should the event giving rise to the claim ofcontinuing effect, the Contractor shall submit an interim claimwithin the said thirty days and a final claim within thirty days ofthe end of the event giving rise to the claim.25. Price Adjustment25.1 The Project Manager shall adjust the Contract Price if taxes, dutiesand other levies are changed between the date 30 days before thesubmission of tenders for the Contract and the date of Completion.The adjustment shall be the change in the amount of tax payableby the Contractor.25.2 The Contract Price shall be deemed to be based on exchange ratescurrent at the date of tender submission in calculating the cost tothe Contractor of materials to be specifically imported (by expressprovisions in the Contract Bills of Quantities or Specifications) forpermanent incorporation in the Works. Unless otherwise stated inthe Contract, if at any time during the period of the Contractexchange rates shall be varied and this shall affect the cost to theContractor of such materials, then the Project Manager shallassess the net difference in the cost of such materials. Anyamount from time to time so assessed shall be added to ordeducted from the Contract Price, as the case may be.25.3 Unless otherwise stated in the Contract, the Contract Price shall bedeemed to have been calculated in the manner set out below and insub-clauses 25.4 and 25.5 and shall be subject to adjustment inthe events specified thereunder;(i)(ii)The prices contained in the Contract Bills of Quantities shallbe deemed to be based upon the rates of wages and otheremoluments and expenses as determined by the JointBuilding Council of Kenya (J.B.C.) and set out in theschedule of basic rates issued 30 days before the date forsubmission of tenders.A copy of the schedule used by theContractor in his pricing shall be attached in the Appendix toConditions of Contract.Upon J.B.C. determining that any of the said rates of wagesor other emoluments and expenses are increased ordecreased, then the Contract Price shall be increased ordecreased by the amount assessed by the Project Managerbased upon the difference, expressed as a percentage,between the rate set outin the schedule of basic rates issued 30 days before the datefor submission of tenders and the rate published by theJ.B.C. and applied to the quantum of labour incorporatedwithin the amount of Work remaining to be executed at thedate of publication of such increase or decrease.35

(iii)No adjustment shall be made in respect of changes in therates of wages and other emoluments and expenses whichoccur after the date of Completion except during such otherperiod as may be granted as an extension of time underclause 17.0 of these Conditions.25.4 The prices contained in the Contract Bills of Quantities shall bedeemed to be based upon the basic prices of materials to bepermanently incorporated in the Works as determined by theJ.B.C. and set out in the schedule of basic rates issued 30 daysbefore the date for submission of tenders. A copy of the scheduleused by the Contractor in his pricing shall be attached in theAppendix to Conditions of Contract.25.5 Upon the J.B.C. determining that any of the said basic prices areincreased or decreased then the Contract Price shall be increasedor decreased by the amount to be assessed by the Project Managerbased upon the difference between the price set out in the scheduleof basic rates issued 30 days before the date for submission oftenders and the rate published by the J.B.C. and applied to thequantum of the relevant materials which have not been taken intoaccount in arriving at the amount of any interim certificate underclause 23 of these Conditions issued before the date of publicationof such increase or decrease.25.6 No adjustment shall be made in respect of changes in basic pricesof materials which occur after the date for Completion exceptduring such other period as may be granted as an extension of timeunder clause 17.0 of these Conditions.25.7 The provisions of sub-clause 25.1 to 25.2 herein shall not apply inrespect of any materials included in the schedule of basic rates.26. Retention26.1 The Employer shall retain from each payment due to theContractor the proportion stated in the Appendix to Conditions ofContract until Completion of the whole of the Works. OnCompletion of the whole of the Works, half the total amountretained shall be repaid to the Contractor and the remaining halfwhen the Defects Liability Period has passed and the ProjectManager has certified that all defects notified to the Contractorbefore the end of this period have been corrected.27. Liquidated Damages27.1 The Contractor shall pay liquidated damages to the Employer atthe rate stated in the Appendix to Conditions of Contract for eachday that the actual Completion Date is later than the IntendedCompletion Date. The Employer may deduct liquidated damagesfrom payments due to the Contractor. Payment of liquidateddamages shall not alter the Contractor’s liabilities.36

27.2 If the Intended Completion Date is extended after liquidateddamages have been paid, the Project Manager shall correct anyoverpayment of liquidated damages by the Contractor by adjustingthe next payment certificate. The Contractor shall be paid intereston the overpayment, calculated from the date of payment to thedate of repayment, at the rate specified in Clause 23.3028. Securities28.1 The Performance Security shall be provided to the Employer nolater than the date specified in the Letter of Acceptance and shallbe issued in an amount and form and by a reputable bankacceptable to the Employer, and denominated in Kenya Shillings.The Performance Security shall be valid until a date 30 daysbeyond the date of issue of the Certificate of Completion.29. Dayworks29.1 If applicable, the Dayworks rates in the Contractor’s tender shall beused for small additional amounts of Work only when the ProjectManager has given written instructions in advance for additionalwork to be paid for in that way.29.2 All work to be paid for as Dayworks shall be recorded by theContractor on Forms approved by the Project Manager. Eachcompleted form shall be verified and signed by the Project Managerwithin two days of the Work being done.29.3 The Contractor shall be paid for Dayworks subject to obtainingsigned Dayworks forms.30. Liability and Insurance30.1 From the Start Date until the Defects Correction Certificate hasbeen issued, the following are the Employer’s risks:(a)The risk of personal injury, death or loss of or damage toproperty (excluding the Works, Plant, Materials andEquipment), which are due to;(i)(ii)use or occupation of the Site by the Works or for thepurpose of the Works, which is the unavoidable resultof the Works, ornegligence, breach of statutory duty or interferencewith any legal right by the Employer or by any personemployed by or contracted to him except theContractor.37

(b)The risk of damage to the Works, Plant, Materials, andEquipment to the extent that it is due to a fault of theEmployer or in Employer’s design, or due to war orradioactive contamination directly affecting the place wherethe Works are being executed.30.2 From the Completion Date until the Defects Correction Certificatehas been issued, the risk of loss of or damage to the Works, Plant,and Materials is the Employer’s risk except loss or damage due to;(a)(b)(c)a defect which existed on or before the Completion Date.an event occurring before the Completion Date, which wasnot itself the Employer’s riskthe activities of the Contractor on the Site after theCompletion Date.30.3 From the Start Date until the Defects Correction Certificate hasbeen issued, the risks of personal injury, death and loss of ordamage to property (including, without limitation, the Works,Plant, Materials, and Equipment) which are not Employer’s risk areContractor’s risks.The Contractor shall provide, in the joint names of the Employerand the Contractor, insurance cover from the Start Date to the endof the Defects Liability Period, in the amounts stated in theAppendix to Conditions of Contract for the following events;(a) loss of or damage to the Works, Plant, and Materials;(b)(c)(d)loss of or damage to Equipment;loss of or damage to property (except the Works, Plant,Materials, and Equipment) in connection with the Contract,andpersonal injury or death.30.4 Policies and certificates for insurance shall be delivered by theContractor to the Project Manager for the Project Manager’sapproval before the Start Date. All such insurance shall provide forcompensation required to rectify the loss or damage incurred.30.5 If the Contractor does not provide any of the policies andcertificates required, the Employer may effect the insurance whichthe Contractor should have provided and recover the premiumsfrom payments otherwise due to the Contractor or, if no payment isdue, the payment of the premiums shall be a debt due.30.6 Alterations to the terms of insurance shall not be made without theapproval of the Project Manager. Both parties shall comply withany conditions of insurance policies.38

31. Completion and taking over31.1 Upon deciding that the Works are complete, the Contractor shallissue a written request to the Project Manager to issue a Certificateof Completion of the Works. The Employer shall take over the Siteand the Works within seven [7] days of the Project Manager’sissuing a Certificate of Completion.32. Final Account32.1 The Contractor shall issue the Project Manager with a detailedaccount of the total amount that the Contractor considers payableto him by the Employer under the Contract before the end of theDefects Liability Period. The Project Manager shall issue a DefectsLiability Certificate and certify any final payment that is due to theContractor within 30 days of receiving the Contractor’s account if itis correct and complete. If it is not, the Project Manager shall issuewithin 30 days a schedule that states the scope of the correctionsor additions that are necessary. If the final account is stillunsatisfactory after it has been resubmitted, the Project Managershall decide on the amount payable to the Contractor and issue aPayment Certificate. The Employer shall pay the Contractor theamount due in the Final Certificate within 60 days.33. Termination33.1 The Employer or the Contractor may terminate the Contract if theother party causes a fundamental breach of the Contract. Thesefundamental breaches of Contract shall include, but shall not belimited to, the following;(a)(b)(c)(d)(e)the Contractor stops work for 30 days when no stoppage ofwork is shown on the current program and the stoppage hasnot been authorised by the Project Manager;the Project Manager instructs the Contractor to delay theprogress of the Works, and the instruction is not withdrawnwithin 30 days;the Contractor is declared bankrupt or goes into liquidationother than for a reconstruction or amalgamation;a payment certified by the Project Manager is not paid by theEmployer to the Contractor within 30 days (for InterimCertificate) or 60 days (for Final Certificate)of issue.the Project Manager gives notice that failure to correct aparticular defect is a fundamental breach of Contract and theContractor fails to correct it within a reasonable period oftime determined by the Project Manager;39

(f)the Contractor does not maintain a security, which isrequired.33.2 When either party to the Contract gives notice of a breach ofContract to the Project Manager for a cause other than those listedunder Clause 33.1 above, the Project Manager shall decide whetherthe breach is fundamental or not.33.3 Notwithstanding the above, the Employer may terminate theContract for convenience.33.4 If the Contract is terminated, the Contractor shall stop workimmediately, make the Site safe and secure, and leave the Site assoon as reasonably possible. The Project Manager shallimmediately thereafter arrange for a meeting for the purpose oftaking record of the Works executed and materials , goods,equipment and temporary buildings on Site.34. Payment Upon Termination34.1 If the Contract is terminated because of a fundamental breach ofContract by the Contractor, the Project Manager shall issue acertificate for the value of the Work done and materials ordered anddelivered to Site up to the date of the issue of the certificate.Additional liquidated damages shall not apply. If the total amountdue to the Employer exceeds any payment due to the Contractor,the difference shall be a debt payable by the Contractor.34.2 If the Contract is terminated for the Employer’s convenience orbecause of a fundamental breach of Contract by the Employer, theProject Manager shall issue a certificate for the value of the Workdone, materials ordered, the reasonable cost of removal ofequipment, repatriation of the Contractor’s personnel employedsolely on theWorks, and the Contractor’s costs of protecting and securing theWorks.34.3 The Employer may employ and pay other persons to carry out andcomplete the Works and to rectify any defects and may enter uponthe Works and use all materials on the Site, plant, equipment andtemporary works.34.4 The Contractor shall, during the execution or after the completionof the Works under this clause remove from the Site as and whenrequired, within such reasonable time as the Project Manager mayin writing specify, any temporary buildings, plant, machinery,appliances, goods or materials belonging to or hired by him, and indefault the Employer may (without being responsible for any loss ordamage) remove and sell any such property of the Contractor,holding the proceeds less all costs incurred to the credit of theContractor.40

Until after completion of the Works under this clause the Employershall not be bound by any other provision of this Contract to makeany payment to the Contractor, but upon such completion asaforesaid and the verification within a reasonable time of theaccounts therefore the Project Manager shall certify the amount ofexpenses properly incurred by the Employer and, if such amountadded to the money paid to the Contractor before suchdetermination exceeds the total amount which would have beenpayable on due completion in accordance with this Contract thedifference shall be a debt payable to the Employer by theContractor; and if the said amount added to the said money be lessthan the said total amount, the difference shall be a debt payableby the Employer to the Contractor.35. Release from Performance35.1 If the Contract is frustrated by the outbreak of war or by any otherevent entirely outside the control of either the Employer or theContractor, the Project Manager shall certify that the Contract hasbeen frustrated. The Contractor shall make the Site safe and stopWork as quickly as possible after receiving this certificate and shallbe paid for all Work carried out and materials on site beforereceiving it.36. Corrupt gifts and payments of commissionThe Contractor shall not;(a)Offer or give or agree to give to any person in the service of theEmployer any gift or consideration of any kind as an inducement orreward for doing or forbearing to do or for having done or forborneto do any act in relation to the obtaining or execution of this or anyother Contract for the Employer or for showing or forbearing toshow favouror disfavour to any person in relation to this or any other contractfor the Employer.(b)Enter into this or any other contract with the Employer inconnection with which commission has been paid or agreed to bepaid by him or on his behalf or to his knowledge, unless before theContract is made particulars of any such commission and of theterms and conditions of any agreement for the payment thereofhave been disclosed in writing to the Employer.Any breach of this Condition by the Contractor or by anyoneemployed by him or acting on his behalf (whether with or withoutthe knowledge of the Contractor) shall be an offence under theprovisions of the Public Procurement Regulations issued under TheExchequer and Audit Act Cap 412 of the Laws of Kenya.41

37. Settlement Of Disputes37.1 In case any dispute or difference shall arise between the Employeror the Project Manager on his behalf and the Contractor, eitherduring the progress or after the completion or termination of theWorks, such dispute shall be notified in writing by either party tothe other with a request to submit it to arbitration and to concur inthe appointment of an Arbitrator within thirty days of the notice.The dispute shall be referred to the arbitration and final decision ofa person to be agreed between the parties. Failing agreement toconcur in the appointment of an Arbitrator, the Arbitrator shall beappointed by the Chairman or Vice Chairman of any of thefollowing professional institutions;(i)(ii)(iii)(iv)(v)Architectural Association of KenyaInstitute of Quantity Surveyors of KenyaAssociation of Consulting Engineers of KenyaChartered Institute of Arbitrators (Kenya Branch)Institution of Engineers of KenyaOn the request of the applying party. The institution written tofirst by the aggrieved party shall take precedence over all otherinstitutions.37.2 The arbitration may be on the construction of this Contract or onany matter or thing of whatsoever nature arising thereunder or inconnection therewith, including any matter or thing left by thisContract to the discretion of the Project Manager, or thewithholding by the Project Manager of any certificate to which theContractor may claim to be entitled to or the measurement andvaluation referred to in clause 23.0 of these conditions, or therights and liabilities of the parties subsequent to the termination ofContract.37.3 Provided that no arbitration proceedings shall be commenced onany dispute or difference where notice of a dispute or difference hasnot been given by the applying party within ninety days of theoccurrence or discovery of the matter or issue giving rise to thedispute.37.4 Notwithstanding the issue of a notice as stated above, thearbitration of such a dispute or difference shall not commenceunless an attempt has in the first instance been made by theparties to settle such dispute or difference amicably with or withoutthe assistance of third parties. Proof of such attempt shall berequired.37.5 Notwithstanding anything stated herein the following matters maybe referred to arbitration before the practical completion of theWorks or abandonment of the Works or termination of the Contractby either party:42

37.5.1 The appointment of a replacement Project Managerupon the said person ceasing to act.37.5.2 Whether or not the issue of an instruction by theProject Manager is empowered by these Conditions.37.5.3 Whether or not a certificate has been improperlywithheld or is not in accordance with these Conditions.37.5.4 Any dispute or difference arising in respect of war risksor war damage.37.6 All other matters shall only be referred to arbitration after thecompletion or alleged completion of the Works or termination oralleged termination of the Contract, unless the Employer and theContractor agree otherwise in writing.37.7 The Arbitrator shall, without prejudice to the generality of hispowers, have powers to direct such measurements, computations,tests or valuations as may in his opinion be desirable in order todetermine the rights of the parties and assess and award any sumswhich ought to have been the subject of or included in anycertificate.37.8 The Arbitrator shall, without prejudice to the generality of hispowers,have powers to open up, review and revise any certificate, opinion,decision, requirement or notice and to determine all matters indispute which shall be submitted to him in the same manner as ifno such certificate, opinion, decision requirement or notice hadbeen given.37.9 The award of such Arbitrator shall be final and binding upon theparties.43

SECTION VAPPENDIX TO CONDITIONS OF CONTRACTTHE EMPLOYER ISName: KENYA WILDLIFE SERVICEAddress: P.O BOX 40241 NAIROBIName of Authorised Representative: THE DIRECTOR KENYA WILDLIFE SERVICETelephone: 020-600800Facsimile: 020-603792The Project Manager isName: HEAD BUILDINGS AND FENCES DEPARTMENTAddress: P.O. Box 40241, NAIROBI.Telephone: (020) 600800 Ext 2299Facsimile: (020) 602709The name (and identification number) of the Contract is KWS/OT/BF/09/2013-2014PROPOSED CONSTRUCTION OF STAFF RESIDENTIAL FLATS, ABLUTIONBLOCK, GAZEBO SHED AND ASSOCIATED SERVICES AT L. NAKURU N. PARKThe Works consist of ERECTION TO COMPLETION OF ONE BLOCK OFTHREE STOREY HIGH-RISE FLAT MEASURING APPROXIMATELY 1104SQUARE METRES IN TOTAL FLOOR AREA, EACH FLOOR COMPRISING OFFOUR DWELLING UNITS OF TWO BEDROOMS EACH, COSTRUCTION OFSTAND ALONE EXTERNAL ABLUTION BLOCK & ASSOCIATED EXTERNALWORKS COMPRISING OF, FOUL DRAINAGE, WATER RETICULATION,ELECTRICAL CONNECTION AMONG OTHERS ALL AS DETAILED IN THEBILLS OF QUANTITIES AND AS SHOWN IN THE DRAWINGSThe commencement Date shall be AGREED WITH THE PROJECT MANAGERThe Intended Completion Date for the whole of the Works shall be12 MONTHS AFTER DATE OF COMMENCEMENT44

The following documents also form part of the Contract:BILLS OF QUANTITIES, CONTRACT DRAWINGS AND ANY OTHERAUTHORIZED DRAWINGS WHICH MAY BE ISSUEDThe Contractor shall submit a revised program for the Works within 14 days ofdelivery of the Notification/Letter of Acceptance.The Site Possession Date shall be TWO WEEKS PRIOR TO COMMENCEMENTDATEThe Site is located AT LAKE NAKURU NATIONAL PARKThe Defects Liability period is 180 days.Other Contractors, utilities etc., to be engaged by the Employer on the SiteInclude those for the execution of;1. None .2. ” .”3._____________________________________________4.___________________ ”_________________________The minimum insurance covers shall be;1. The minimum cover for insurance of the Works and of Plant and Materialsin respect of the Contractor’s faulty design is NIL2. The minimum cover for loss or damage to Equipment is NIL3. The minimum for insurance of other property is KSH. 5,000,000.004. The minimum cover for personal injury or death insurance• For the Contractor’s employees is KSH. 2,500,000.00• And for other people is KSH. 2,500,000.0045

The following events shall also be Compensation Events:1. NONE (ONLY AS LISTED IN CLAUSE 24 OF THE CONDITIONS OFCONTRACT2.__________________________________________________________________________3.4.____________________________________________________________________________________________________________________________________________________The period between Program updates is 14 days.The amount to be withheld for late submission of an updated Program isEQUAL TO 25% OF CERTIFICATEThe proportion of payments retained is 10 percent, subject to release of onemoiety upon attainment of practical completion.The Price Adjustment Clause shall not applyThe liquidated damages for the whole of the Works is Kshs. 40,000.00 (perweek)The Performance Security shall be for the following minimum amountsequivalent as a percentage of the Contract Price 10 percent (%)The Completion Period for the Works is 12 MONTHSAdvance Payment MAY be granted, in accordance clause 23.7 of conditions ofcontract46

SECTION VI – STANDARD FORMSi. Letter of Notification/Acceptance; This form letter willbe used to communicate the award to the successful tendererii.iii.iv.Form of Agreement; The form of agreement shall not becompleted by the tenderer at the time of submitting thetender, contract form shall be be completed after contractaward and should incorporate the accepted contractpriceForm of Tender Security; when required by the tenderdocuments the tender shall provide tender securityeither in the form included herein or in another formatacceptable to the employerPerformance Guarantee; the performance securityshould not be completed by the tendere at the time or tenderpreparation. Only successful tenderers will be required toprovide performance security in the form provided herein or inanother form acceptable to the employerv. Bank Guarantee for Advance Payment; This formshould not be completed by tenderers at the time forsubmission, it will be completed when advance payment isrequested for by the successful bidder and agreed by theemployer : this form then must be completed and signed by theauthorized officials of the bankvi.vii.viii.ix.(xi)Qualification Information; This form must be completedfully and duly signed by the bidderTender Questionnaire This form must be completedfully and duly signed by the bidderConfidential Business Questionnaire This form must becompleted fully and duly signed by the bidderStatement of Foreign Currency Requirements: Thisform is not applicable to this tenderDetails of Sub-Contractors This form must be completedfully and duly signed by the bidder when the employerhas indicated that subcontractors shall be domestic47

NOTIFICATION/LETTER OF ACCEPTANCE[letterhead paper of the Employer]To:RE: Tender No.Tender NameThis is to notify that the contract/s stated below under the above mentionedtender have been awarded to you, at a corrected bid price of kshs…….. subjectto lapse of fourteen without request for review of award, by other bidders.1. Please acknowledge receipt of this letter of notification signifying youracceptance.2. The contract/contracts shall be signed by the parties within 30 days ofthe date of this letter but not earlier than 14 days from the date of theletter.3. Prior to signing of the agreement you will be expected to furnish theemployer with the following as outlined in appendix to conditions ofcontract• An irrevocable and unconditional performance bank guaranteeequivalent to 10% of the contract price.• Programme of works showing the general methods, arrangements,order timings and sequence for all activities of the works.• Insurance policies as listed in appendix to conditions of contract.4. You may contact the officer(s) whose particulars appear below on thesubject matter of this letter of notification of award.(FULL PARTICULARS)SIGNED FOR ACCOUNTING OFFICER48

FORM OF AGREEMENTTHIS AGREEMENT, made the _________________ day of ________ 20 ______between________________________________________________of[or whose registeredoffice is situated at]__________________________________________(hereinafter called “the Employer”) of the one part AND________________________________________________________of[or whose registeredoffice is situated at]_________________________________________(hereinafter called “the Contractor”) of the other part.WHEREAS THE Employer is desirous that the Contractor executes________________________________________________________________________(name and identification number of Contract ) (hereinafter called “the Works”)located at______________________________[Place/location of the Works]and theEmployer has accepted the tender submitted by the Contractor for theexecution and completion of such Works and the remedying of any defectstherein for the Contract Price of Kshs___________________________[Amount infigures],Kenya Shillings_____________________________________________[Amountin words].NOW THIS AGREEMENT WITNESSETH as follows:1. In this Agreement, words and expressions shall have the same meaningsas are respectively assigned to them in the Conditions of Contracthereinafter referred to.2. The following documents shall be deemed to form and shall be read andconstrued as part of this Agreement i.e.(i)(ii)(iii)(iv)(v)(vi)(vii)Letter of AcceptanceForm of TenderConditions of Contract Part IConditions of Contract Part II -Appendix to Conditions of ContractSpecificationsDrawingsPriced Bills of Quantities3. In consideration of the payments to be made by the Employer tothe Contractor as hereinafter mentioned, the Contractor herebycovenants with the Employer to execute and complete the Works andremedy any defects therein in conformity in all respects with theprovisions of the Contract.4. The Employer hereby covenants to pay the Contractor in49

consideration of the execution and completion of the Works and theremedying of defects therein, the Contract Price or such other sumas may become payable under the provisions of the Contract at thetimes and in the manner prescribed by the Contract.IN WITNESS whereof the parties thereto have caused this Agreement to beexecuted the day and year first before written.The common Seal of _________________________________________________Was hereunto affixed in the presence of ________________________________Signed Sealed, and Delivered by the said ______________________________Binding Signature of Employer ________________________________________In the presence of (i) Name_______________________________________Address_____________________________________Signature___________________________________Binding Signature of Contractor _______________________________________In the presence of (i) Name_______________________________________Address_____________________________________Signature___________________________________50

FORM OF TENDER SECURITYWHEREAS ……………………………………….. (hereinafter called “the Tenderer”)has submitted his tender dated ………………………… for the construction of…………………………………………………………………………………………… (Name of Contract)KNOW ALL PEOPLE by these presents that WE ……………………… having ourregistered office at ………………(hereinafter called “the Bank”), are bound unto……………………………(hereinafter called “the Employer”) in the sum ofKshs.……………………… for which payment well and truly to be made to thesaid Employer, the Bank binds itself, its successors and assigns by thesepresents sealed with the Common Seal of the said Bank this ……………. Day of………20…………THE CONDITIONS of this obligation are:1. If after tender opening the tenderer withdraws his tender during theperiod of tender validity specified in the instructions to tenderersOr2. If the tenderer, having been notified of the acceptance of his tender by theEmployer during the period of tender validity:(a)(b)fails or refuses to execute the form of Agreement in accordancewith the Instructions to Tenderers, if required; orfails or refuses to furnish the Performance Security, in accordancewith the Instructions to Tenderers;We undertake to pay to the Employer up to the above amount uponreceipt of his first written demand, without the Employer having tosubstantiate his demand, provided that in his demand the Employer willnote that the amount claimed by him is due to him, owing to theoccurrence of one or both of the two conditions, specifying the occurredcondition or conditions.This guarantee will remain in force up to and including thirty (30) daysafter the period of tender validity, and any demand in respect thereofshould reach the Bank not later than the said date.___________________________ ______________________________[Date [[signature of the Bank]___________________________[Witness]______________________________[Seal]51

PERFORMANCE BANK GUARANTEETo: _________________________(Name of Employer) ___________(Date)__________________________(Address of Employer)Dear Sir,WHEREAS ______________________(hereinafter called “the Contractor”) hasundertaken, in pursuance of Contract No. _____________ dated _________ toexecute _______________ (hereinafter called “the Works”);AND WHEREAS it has been stipulated by you in the said Contract that theContractor shall furnish you with a Bank Guarantee by a recognized bank forthe sum specified therein as security for compliance with his obligations inaccordance with the Contract;AND WHEREAS we have agreed to give the Contractor such a Bank Guarantee:NOW THEREFORE we hereby affirm that we are the Guarantor and responsibleto you, on behalf of the Contractor, up to a total of Kshs. ________________(amount of Guarantee in figures) KenyaShillings__________________________________________ (amount of Guarantee inwords), and we undertake to pay you, upon your first written demand andwithout cavil or argument, any sum or sums within the limits of KenyaShillings _________________________ (amount of Guarantee in words) as aforesaidwithout your needing to prove or to show grounds or reasons for your demandfor the sum specified therein.We hereby waive the necessity of your demanding the said debt from theContractor before presenting us with the demand.We further agree that no change, addition or other modification of the terms ofthe Contract or of the Works to be performed thereunder or of any of theContract documents which may be made between you and the Contractor shallin any way release us from any liability under this Guarantee, and we herebywaive notice of any change, addition, or modification.This guarantee shall be valid until the date of issue of the Certificate ofpractical Completion.SIGNATURE AND SEAL OF THE GUARANTOR ___________________Name of Bank ____________________________________________Address ________________________________________________Date ______________________________________________________52

BANK GUARANTEE FOR ADVANCE PAYMENTTo: ________________________ [name of Employer] ___________(Date)________________________[address of Employer]Gentlemen,Ref:_______________________________________________[name of Contract]In accordance with the provisions of the Conditions of Contract of the abovementionedContract, We,_______________________________________[name andAddress of Contractor] (hereinafter called “the Contractor”) shall deposit with_______________________________[name of Employer] a bank guarantee toguarantee his proper and faithful performance under the said Contract in anamount of Kshs._____________[amount of Guarantee in figurers] KenyaShillings_____________________________________[amount of Guarantee in words].We, ________________[bank or financial institution], as instructed by theContractor, agree unconditionally and irrevocably to guarantee as primaryobligator and not as Surety merely, the payment to___________________________[name of Employer] on his first demand withoutwhatsoever right of objection on our part and without his first claim to theContractor, in the amount not exceeding Kshs________________________[amountof Guarantee in figures] Kenya Shillings_____________________________________________________________[amount ofGuarantee in words], such amount to be reduced periodically by the amountsrecovered by you from the proceeds of the Contract.We further agree that no change or addition to or other modification of theterms of the Contract or of the Works to be performed thereunder or of any ofthe Contract documents which may be made between________________________[name of Employer] and the Contractor, shall in anyway release us from any liability under this guarantee, and we hereby waivenotice of any such change, addition or modification.No drawing may be made by you under this guarantee until we have receivednotice in writing from you that an advance payment of the amount listed abovehas been paid to the Contractor pursuant to the Contract.This guarantee shall remain valid and in full effect from the date of theadvance payment under the Contract until______________________________________________(name of Employer) receives fullpayment of the same amount from the Contract.Yours faithfully,Signature and Seal __________________________________________________Name of the Bank or financial institution ______________________________53

Address ______________________________________________________________Date _________________________________________________________________Witness:Name: ____________________________________________________Address: __________________________________________________Signature: ________________________________________________Date: _____________________________________________________54

QUALIFICATION INFORMATION1. Individual Tenderers or Individual Members of Joint Ventures1.1 Constitution or legal status of tenderer (attach copy orIncorporation Certificate);Place of registration:____________________________Principal place of business_____________________________Power of attorney of signatory of tender ____________________1.2 Total annual volume of construction work performed in the last fiveyearsYearVolumeCurrencyValue1.3 Work performed as Main Contractor on works of a similar natureand volume over the last five years. Also list details of work underway or committed, including expected completion date.Project name Name of client Type of work Value ofand contact performed and Contractpersonyear ofcompletion_________ ___________ __________ _________________ ___________ __________ ________________ __________ __________ _______1.4 Major items of Contractor’s Equipment proposed for carrying outthe Works. List all information requested below.Item ofEquipment___________________________(etc.)Description,Make and age(years)____________________________________Condition(new,good, poor) andnumberavailable_________________________________Owned, leased(from whom?),or to bepurchased(from whom?)55

1.5 Qualifications and experience of key personnel proposed foradministration and execution of the Contract. Attach biographicaldata.Position Name Years ofexperience(general)Project Manager_____________________________________Years ofexperience inproposed position(etc.)1.6 Financial reports for the two years: balance sheets, profit and lossstatements, auditor’s reports, etc OR bank statement for the last24 months. List below and attach copies.________________________________________________________________________________________________________________________1.7 Evidence of access to financial resources to meet the qualificationrequirements: cash in hand, lines of credit, etc. List below andattach copies of supportive documents._____________________________________________________________________________________________________________________________________________________________________1.8 Name, address and telephone, telex and facsimile numbers ofbanks that may provide reference if contacted by the Employer.______________________________________________________________________________________________________________________________1.9 Statement of compliance with the requirements of Clause 1.2 of theInstructions to Tenderers._____________________________________________________________________________________________________________________________________________________________________1.10 Proposed program (work method and schedule) for the whole of theWorks.56

2 Joint Ventures2.4 The information listed in 1.1 – 1.10 above shall be provided foreach partner of the joint venture.2.5 The information required in 1.11 above shall be provided for thejoint venture.2.6 Attach the power of attorney of the signatory(ies) of the tenderauthorizing signature of the tender on behalf of the joint venture2.7 Attach the Agreement among all partners of the joint venture ( andwhich is legally binding on all partners), which shows that:a) all partners shall be jointly and severally liable for theexecution of the Contract in accordance with the Contractterms;b) one of the partners will be nominated as being in charge,authorized to incur liabilities and receive instructions forand on behalf of any and all partners of the joint venture;andc) the execution of the entire Contract, including payment, shallbe done exclusively with the partner in charge.57

Please fill in block letters.1. Full names of tendererTENDER QUESTIONNAIRE………………………………………………………………………………………2. Full address of tenderer to which tender correspondence is to be sent(unless an agent has been appointed below)………………………………………………………………………………………3. Telephone number (s) of tenderer………………………………………………………………………………………4. Telex address of tenderer………………………………………………………………………………………5. Name of tenderer’s representative to be contacted on matters of thetender during the tender period………………………………………………………………………………………6. Details of tenderer’s nominated agent (if any) to receive tender notices.This is essential if the tenderer does not have his registered address inKenya (name, address, telephone, telex)………………………………………………………………………………………………………………………………………………………………………………_______________________Signature of TendererMake copy and deliver to:_____________________(Name of Employer)58

CONFIDENTIAL BUSINESS QUESTIONNAIREYou are requested to give the particulars indicated in Part 1 and either Part 2(a), 2 (b) or 2 (c) and 2 (d) whichever applies to your type of business.You are advised that it is a serious offence to give false information on thisForm.Part 1 – GeneralBusiness Name ………………………………………………………………………Location of business premises;Country/Town……………………….Plot No……………………………………… Street/Road …………………………Postal Address……………………………… Tel No………………………………..Nature of Business…………………………………………………………………..Current Trade Licence No…………………… Expiring date…………………Maximum value of business which you can handle at any time: K.pound………………………..Name of your bankers………………………………………………………………Branch…………………………………………………………………………………Part 2 (a) – Sole ProprietorYour name in full…………………………………… Age…………………………Nationality………………………………… Country of Origin…………………*Citizenship details …………………………………………………………………Part 2 (b) – PartnershipGive details of partners as follows:Name in full Nationality Citizenship Details Shares1……………………………………………………………………………………2……………………………………………………………………………………3……………………………………………………………………………………59

Part 2(c) – Registered Company:Private or public……………………………………………………………State the nominal and issued capital of the Company-Nominal Kshs…………………………………………………………………Issued Kshs……………………………………………………………………Give details of all directors as follows:Name in full . Nationality. Citizenship Details*. Shares.1.………………………………………………………………………………………2.………………………………………………………………………………………3.………………………………………………………………………………………4.………………………………………………………………………………………Part 2(d) – Interest in the Firm:Is there any person / persons in …………… ………(Name of Employer) whohas interest in this firm? Yes/No………………………(Delete as necessary)I certify that the information given above is correct.……………………… ……………………… …………………(Title) (Signature) (Date)• Attach proof of citizenship60

STATEMENT OF FOREIGN CURRENCY REQUIREMENTS(See Clause 23] of the Conditions of Contract)In the event of our Tender for the execution of______________________________________________(name of Contract) being accepted, we wouldrequire in accordance with Clause 21 of the Conditions of Contract,which is attached hereto, the following percentage:(Figures)………………………… (Words)…………………………………of the Contract Sum, (Less Fluctuations) to be paid in foreign currency.Currency in which foreign exchange element is required:………………………………………………………………………………………Date: The ………… Day of …………….. 20…………….Enter 0% (zero percent) if no payment will be made in foreign currency.Maximum foreign currency requirement shall be _____________(percent) ofthe Contract Sum, less Fluctuations._____________________(Signature of Tenderer)61

DETAILS OF SUB-CONTRACTORSIf the Tenderer wishes to sublet any portions of the Works under anyheading, he must give below details of the sub-contractors he intends toemploy for each portion.Failure to comply with this requirement may invalidate the tender.(1) Portion of Works to be sublet: ………………………………[i)(ii)Full name of Sub-contractorand address of head office:Sub-contractor’s experienceof similar works carried outin the last 3 years withContract value:………………………………………………………………………………………………………………………………………………………………(2) Portion of Works to sublet: ………………………………(i)(ii)Full name of sub-contractorand address of head office:Sub-contractor’s experienceof similar works carried outin the last 3 years withcontract value:…………………………………………………………………………………………………………………………………………………………____________________[Signature of Tenderer)_______________________Date62